Summary: We will not investigate Mr X’s complaint about the Council’s decisions not to take planning enforcement action against the developer of two nearby properties, nor the developer who widened the access road entrance shared by his property and others, or fault in its calculation and collection of the Community Infrastructure Levy (CIL) due for the two properties. There is not enough evidence of fault in the Council’s planning enforcement or planning permission decisions and decision-making processes regarding the access to warrant us investigating. Even if there has been fault in the Council’s enforcement decision on the two nearby properties, or its calculation and collection of the CIL, these matters cause insufficient personal injustice to Mr X to warrant investigation.

The complaint

1. Mr X lives in a property which shares an access driveway from the highway with other properties. About four years ago, the Council granted permission for two residential properties which would use the same access. Officers granted permission to one further residence last year. Mr X complains the Council:
1. has failed to take enforcement action regarding recent widening works to the access road;
2. has failed to take enforcement action against the developers who built the first two properties taller and with an added floor;
3. has not collected any CIL from the developer nor increased the Community Infrastructure Levy (CIL) to take account of the increased living space in the two earlier properties.
2. Mr X considers the three new properties will increase traffic movements on the shared driveway and he is concerned about safety. He wants the Council to take enforcement action against the developers involved in the two earlier residences and those who did work to the access. Mr X also wants the Council to collect the correct CIL monies due from the developer of the two earlier properties.

Back to top

The Ombudsman’s role and powers

3. 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:

• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement.

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

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

Back to top

How I considered this complaint

5. I considered information from Mr X and the Council, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

Back to top

My assessment

6. Planning authorities may take enforcement action where they identify or receive a report they decide is a planning control breach. They are required to investigate claimed breaches, but any enforcement is discretionary. It is for the authority to decide whether it is expedient to use its enforcement powers in each case. National government’s guidance on planning enforcement in the 2019 ‘National Planning Policy Framework’ says: ‘Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.’ Councils acting as planning authorities have different options to respond to planning control breaches, from taking no formal action to issuing an Enforcement Notice.
7. We are not an appeal body. We may only go behind a council decision if there is fault in the decision-making process officers have followed and but for that fault a different decision would have been made. We cannot replace a council’s view with our or someone else’s opinion. So we consider the processes councils have followed when making their decisions.
8. In response to Mr X’s report about the access widening work, the Council considered information provided, including before-and-after photographs of the location. They noted a hedge had been removed. The Council’s officers did not consider the works were so significant to require planning permission or enforcement. They also considered the harm caused by the works was insufficient to support enforcement action or make it expedient.
9. We note Mr X’s claimed injustice is the impact of all three new properties on the access road he also uses. But there is no direct connection between the claims of fault by the Council which Mr X’s complaint raises and this claimed injustice. The Council’s planning processes last year and four years ago determined the increased traffic caused by the additional properties did not warrant refusal of the applications. They were planning judgements officers were entitled to reach.
10. Regarding the enforcement matters, officers investigated and obtained relevant information to inform their decision not to enforce and took a decision which aligns with national government guidance on use of the Council’s discretionary enforcement powers. In respect of the two planning applications, officers gathered and considered the relevant material planning information before making their decisions. There is not enough evidence of fault in the Council’s enforcement decision-making process or planning decisions here to warrant us investigating. We recognise Mr X disagrees with the Council’s decisions. But it is not fault for a council to properly make a decision with which someone disagrees.
11. Mr X says the developer of the two earlier properties increased the height of the houses and added a second floor in the roof space. Officers visited the properties and access to the attic space was blocked off. The Council has explained that there would have been no impediment to the new properties’ owners converting their loft for additional living space in future without planning permission. There was no condition in the permission preventing such work being done without a further planning permission. In any event, even if the property has increased floor space and height, this does not cause a significant personal injustice to Mr X, such as any significant impact on his property’s amenity, which warrants us investigating.
12. We recognise, in relation to the two properties’ increased floor space, Mr X considers the Council has not collected the correct CIL money. He believes the addition of the attic space increased the CIL now due from the developer, and is concerned the Council is not pursuing the correct sum. It is for the Council to determine what CIL is due and how it collects it. Even if there has been fault in the Council’s CIL calculation or collection processes, the proportion of the CIL due which may contribute to local services he or his family uses would be negligible and insignificant. The CIL matter causes insufficient significant personal injustice to Mr X and his family to warrant us investigating.

Back to top

Final decision

13. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s planning permission or enforcement decisions and decision-making regarding the access road to warrant us investigating; and
• even if there has been fault in the Council’s enforcement decision-making process and outcome on the two earlier properties, or its calculation and collection of the CIL payable those properties, these matters cause insufficient personal injustice to him to warrant us investigating.

Back to top

Investigator's decision on behalf of the Ombudsman