Summary: We will not investigate Mr X’s complaint about the Council deciding not to ask his neighbour to submit a further planning application regarding the use of a garden outbuilding and how it explained that decision. There is not enough evidence of fault in the Council’s planning decision-making process, nor in how it explained its decision, to warrant us investigating.

The complaint

1. Mr X lives in one of a group of properties. A neighbour sought and gained planning permission for an outbuilding in their back garden. The neighbour started a business from the building, a use not indicated in their planning application. Mr X complains the Council:
1. has not required his neighbour to submit a planning application seeking to regularise the change of use of the new building;
2. has failed to explain why it has not pursued such an application from the neighbour.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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

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

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My assessment

5. 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 when they find a planning control breach, from taking no formal action, through inviting retrospective planning applications, to issuing Enforcement Notices.
6. 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.
7. In response to Mr X’s concerns about the business use of the new outbuilding by his neighbour, officers gathered information. They noted the neighbour’s application had not sought permission for the outbuilding to be used by a business. They served a ‘Planning Contravention Notice’ (PCN) on the neighbour. This notice requires the recipient to provide accurate information about their development and its uses, so authorities can determine whether there has been a breach of planning control. Failing to reply or providing incorrect information in response to a PCN is an offence. Officers considered the reply and the business use to which the outbuilding had been put, and the level of that use. They determined that the current business use and the amount of that use did not result in a material planning change of use, so was not a planning control breach. Planning authorities cannot order anyone to submit a planning application. But as officers decided there had been no planning breach requiring regularisation, they concluded they had no grounds to invite Mr X’s neighbour to submit another application. Officers further explained that if the neighbour’s application had set out that the development would be used for the purpose it is now being used, they would have granted the permission, meaning the planning outcome would have been no different than that already reached.
8. Officers acted to gather the relevant information to investigate the claimed breach and inform their discretionary decision that the development’s use did not amount to a planning control breach. That was a decision they were entitled to make. Officers applied Council policies which reflect the approaches to enforcement required by national government guidance. They explained their decision in responses to Mr X’s complaint. There is not enough evidence of fault in the Council’s planning decision-making process here, nor in its explanation of its decision, 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. The Council has advised Mr X that should there be intensification of the neighbour’s business use, this may amount to a planning breach. If Mr X believes in future that he has identified such a significant use increase, he may wish to report this to the Council. It would then be for officers to gather and assess the evidence of the claimed intensification and reach a view on what enforcement or other action, if any, their Council should take.

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Final decision

10. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the Council’s planning decision-making process, nor in how it explained its decision, to warrant us investigating.

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Investigator's decision on behalf of the Ombudsman