Summary: We will not investigate Mr X’s complaint about the Council deciding not to enforce against his neighbour’s air conditioning units and not assessing the units’ noise. There is not enough evidence of fault in the Council’s decision-making process to warrant an investigation. We also cannot achieve the core outcome Mr X seeks from his complaint.

The complaint

1. Mr X complains the Council has:
1. declined to take planning enforcement action against two air conditioning units installed in the back garden of his neighbour even though they breach planning control;
2. failed to assess the noise impact of the units.
2. Mr X says the units are unsightly and visible from his property and will make unacceptable noise. He wants the Council to use its enforcement powers, and compensate him for the stress caused by its refusal to enforce.

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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:

• there is not enough evidence of fault to justify investigating; or
• we cannot achieve the outcome someone wants.

(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)

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How I considered this complaint

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

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My assessment

6. Planning authorities may take enforcement action where they identify a planning control breach. They are required to investigate claimed breaches, but use of their enforcement powers is discretionary and it is for an authority to decide whether it is expedient to use the powers in each case. National government’s guidance on planning enforcement in the 2019 ‘National Planning Policy Framework’ says: ‘Effective enforcement is important to maintain 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.’ Councils as planning authorities have different options to respond to planning control breaches, from taking no formal action, through inviting retrospective planning applications, to issuing Enforcement Notices.
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 decision solely because we or someone else disagrees with it. So we consider the process councils have followed when making their decision.
8. In response to Mr X’s concerns about the air conditioning units, the Council’s officer visited the site. They gathered information about the units including their location about 20 metres from Mr X’s property, and assessed the noise they were emitting. They determined the units’ installation without permission was a planning control breach and invited the neighbour to submit a retrospective application, but none was forthcoming. Councils cannot force someone to make such an application. Once it was clear the neighbour would not make an application, it was for officers to decide whether to enforce. Officers considered information from the manufacturer about the units’ noise levels and noted the final situation was that the neighbour had boxed in both units. They decided enforcement action is not expedient because the installation does not cause such visual or noise harms to warrant it. Officers gathered the relevant information to investigate the breach and inform their discretionary decision not to enforce. That is a decision they were entitled to make. Officers applied the Council policies which reflect the approaches to enforcement required by national government guidance. There is not enough evidence of fault in the Council’s decision-making process here to justify us investigating. We recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
9. Mr X says the Council has not assessed the noise of the air conditioning units. The Council’s planning officer witnessed the units’ noise during their visit and took account of the noise information from the manufacturer when making their decision that the emissions were insufficient grounds to enforce. The Council has explained that if Mr X believes the units’ noise to be unduly loud, he should report this to its environmental health team. They would be able to consider, under their environmental health powers which are separate from the planning enforcement process, whether the units’ noise amounts to a statutory nuisance.
10. The core outcome Mr X wants from his complaint is for the Council to take enforcement action against his neighbour. We cannot order councils to overturn their decision and take such action. That we cannot achieve this main outcome is a further reason why we will not investigate.

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Final decision

11. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s enforcement decision‑making process to warrant an investigation; and
• we cannot achieve the core outcome Mr X seeks from his complaint.

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Investigator's decision on behalf of the Ombudsman