Summary: We will not investigate this complaint about planning enforcement because there is no evidence of fault by the Council and a right of appeal existed to the Planning Inspector.

The complaint

1. Mr X complains that the Council decided not to take enforcement action against his neighbour (but took enforcement against against him).

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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)
4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning 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.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council decided to take enforcement action against Mr X for installing unauthorised cctv cameras. They also decided to take action against his neighbour for the unauthorised installation of an air conditioning unit.
8. The Ombudsman previously investigated this complaint and advised Mr X that she could not investigate his complaint as he had a right of appeal to the Planning Inspector against the enforcement notice. That remains the Ombudsman’s decision.
9. The Council says that a Planning Officer visited Mr X’s neighbour to assess the impact of the air conditioning unit upon Mr X. The Planning Officer concluded that the units themselves were not inappropriate development. Further, the siting, colour and size did not appear unneighbourly or prominent.
10. 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.
11. 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.
12. 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.
13. 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)
14. I am satisfied that the Council properly considered whether or not to proceed with enforcement action against the neighbour.
15. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
16. I am satisfied that the Council’s decision was made without fault and therefore the Ombudsman cannot question that decision.

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Final decision

17. We will not investigate Mr X’s complaint because there is no evidence of fault and there was a right of appeal to a Planning Inspector.

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Investigator's decision on behalf of the Ombudsman