Summary: We will not investigate Mr X’s complaint about the way the Council dealt with a planning enforcement matter relating to his property, its decision to serve him with an Enforcement Notice, and how it dealt with his complaint. Mr X has used his right of appeal to the Planning Inspectorate against the Notice, which takes the enforcement matter outside our jurisdiction. We do not investigate councils’ complaints processes where we are not investigating the core issue giving rise to the complaint.

The complaint

1. The Council served a Planning Enforcement Notice on Mr X in relation to work he had done on his property. He complains the Council:
1. failed to follow its planning enforcement policy;
2. made an incorrect and unlawful enforcement decision;
3. failed to properly consider his complaint
2. Mr X says the Council’s enforcement decision prevented him from completing the development for many months. He wants the Council to review its processes and refer itself to an independent judicial review to get advice on its procedural errors and where it is failing.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended)
5. The Planning Inspector acts on behalf of the responsible Government minister. The Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission;
• a planning enforcement notice.

6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916).

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How I considered this complaint

7. I considered information from Mr X and the Ombudsman’s Assessment Code.

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My assessment

8. Officers served a Planning Enforcement Notice on Mr X. He appealed to the Planning Inspectorate against the Notice earlier this year. We cannot investigate where someone has used their appeal right to the Planning Inspectorate. Mr X’s appeal takes the enforcement matter outside our jurisdiction so we cannot investigate his complaint.
9. Mr X may consider the Council’s administrative actions should be treated as separate from the appeal. But those actions were part of the process leading to the decision Mr X has appealed. The appeal gave Mr X the formal route and opportunity to put his case against the Enforcement Notice, which could have included the Council actions he criticises leading up to its service. The outcome of the Inspectorate appeal is not relevant to our jurisdiction. It is the use of that appeal which takes the matter outside our jurisdiction and prevents us from investigating, not whether Mr X’s appeal fails or succeeds.
10. We recognise Mr X may consider the Planning Inspectorate appeal process will not resolve or has not resolved all his claimed injustice relating to the Council. I accept the Inspectorate appeal may not consider these issues. However, the courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, we have no jurisdiction to investigate. The principle set down in this court judgement, referenced above in paragraph six, applies wherever a complainant has used a formal right of appeal other than through court proceedings, including the use of a Planning Inspectorate appeal. This limitation on our jurisdiction applies even if the appeal did not or could not provide a complete remedy for all injustices claimed. So we cannot investigate the Council’s involvement in any part of the planning enforcement matter because Mr X had and has used his formal Planning Inspectorate appeal right.
11. Mr X has complained about the way the Council dealt with his complaint. That complaint process is separate from the appeal process. But we do not investigate councils’ internal complaint-handling processes in isolation where we are not investigating the core issue giving rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.

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Final decision

12. We will not investigate Mr X’s complaint because:

• he has used his right of appeal to the Planning Inspectorate against the Council’s Enforcement Notice, which takes that matter outside our jurisdiction; and
• we will not investigate councils’ complaints processes where we are not investigating the core issue giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman