Summary: We will not investigate Mr X and Ms Y’s complaint about the Council not taking enforcement action against their neighbour’s development and not asking the neighbour to submit a retrospective planning application. The complaint is late and there are no good reasons for us to investigate it now.

The complaint

1. Mr X and Ms Y live in a property with neighbouring property behind. They complain the Council has:
1. failed to take enforcement action against a neighbour’s unauthorised development behind their property;
2. not asked the neighbour to submit a retrospective planning application.
2. Mr X and Ms Y say the neighbour’s works are partly on their land, have damaged their property and restrict their vehicular access. They say the lack of a planning application means they lost their right to object to the works within that process.

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The Ombudsman’s role and power

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

4. I considered information from Mr X and Ms Y and the Ombudsman’s Assessment Code.

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My assessment

5. Mr X and Ms Y say the unauthorised work was carried out by their neighbour in mid-2022. They contacted the Council about it in early September 2022 and the planning officer replied later that month. The officer said the works done should have been the subject of a planning application. However, his assessment was that the Council would have granted planning permission if it had been applied for, so would not be asking the neighbour to submit a retrospective application. Mr X and Ms Y say they then pursued the matter with councillors who did not resolve it. They first lodged a complaint with the Council in February 2024 about the officer’s September 2022 reply.
6. Mr X and Ms Y complained to us in April 2024. We expect people to complain to us about something they believe a council has done wrong within 12 months of them becoming aware of the matters complained of. Any complaint made 12 months after someone knows about the complaint issue is late. Mr X and Ms Y have known about the matters complained of for 17 months, therefore the complaint is late.
7. We may decide to investigate a late complaint if we consider there are good reasons to do so. There are no good reasons to investigate here. Mr X and Ms Y’s pursuit of the matter with other parties indicates they had capacity and ability to complain to the Council in late 2022 instead and, if they were dissatisfied with the outcome, could have made the complaint to us in time. Lack of knowledge of the Ombudsman is not a good reason for us to exercise discretion to investigate late complaints as we have existed for 50 years and information about our service is publicly available. We realise Mr X and Ms Y understood they needed to complain to the Council before raising the complaint with us. But the date they complained to the Council, February 2024, was already over 12 months after they knew about the officer’s planning and enforcement decisions. Even if they had prematurely brought their complaint to us instead of the Council at that time, it would still have been a late complaint. We note Mr X and Ms Y feel let down by councillors they asked to help and who did not resolve the matter. But councillors are elected representatives, independent of the Council, and are not Council staff. There is insufficient evidence of any action or inaction by Council officers here causing Mr X and Ms Y’s complaint to be late. There are no good reasons to warrant us exercising discretion to investigate now.
8. Even if we were to investigate this late complaint, we may not find it was fault by the Council to decline to enforce and not seek a retrospective planning application. Council enforcement powers are discretionary and it is for officers to use their professional judgement to decide when to use them. National government guidance to planning authorities is to only use their powers where a planning breach causes significant material planning harm. It also advises them not to invite retrospective applications solely to regularise a development where officers determine the works would have been acceptable in planning terms and they would have granted permission for it.
9. We note Mr X and Ms Y say the neighbour’s development encroaches on and has damaged their land, and affects their vehicle access. These are private civil matters between them and their neighbour, not material planning matters which the Council as planning authority could consider or resolve. It would be for Mr X and Ms Y to take those issues to court to seek a resolution. They may wish to take independent legal advice before pursuing that route.

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Final decision

10. We will not investigate Mr X and Ms Y’s complaint because the complaint is late and there are no good reasons to investigate it now.

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Investigator's decision on behalf of the Ombudsman