Summary: We will not investigate this complaint about planning enforcement because there is no evidence of fault by the Council causing significant injustice.

The complaint

1. Mr X complain about the Council’s failure to take enforcement action against a developer for failing to install wheel washing equipment on site which led to the presence of mud on the road.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mr X says that he complained on several occasions about the presence of mud on his road which he says was caused by vehicles accessing a development site. He says that there is a condition on the planning permission which requires wheel washing equipment on site and for it to be used by the vehicles.
6. The Council acknowledges that emails were received in November 2022. It says that visits have been made to the site and confirms that wheel washing equipment was on site following a visit in October 2023. It says that no evidence of mud was seen on both site visits.
7. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
8. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
9. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
10. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)
11. I am satisfied that the Council visited the site to check for breaches of planning permission and therefore its conclusion that no action could be taken was made was one made without fault. In the absence of fault, the Ombudsman could not question that decision.
12. Further, the Ombudsman could not reasonably speculate what injustice was caused by any alleged failure of the Council to act in November 2022 (if that was the case) as we could not determine the amount of mud left on the road, the effect upon Mr X and whether the mud was caused by the developer’s vehicles.

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Final decision

13. We will not investigate Mr X’s complaint because there is no evidence of fault by the Council causing significant injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman