Summary: We will not investigate this complaint about the Council’s handling of planning enforcement cases. This is because part of the complaint is late, we cannot investigate issues which affect all or most people in the Council’s area, there is not enough evidence of fault in the Council’s handling of the enforcement cases, and we are unlikely to achieve the desired, or a worthwhile, outcome.

The complaint

1. Mr X complains about the Council’s handling of planning enforcement issues at three sites, and the associated loss of council tax/business rates revenue.

Back to top

The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We can 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. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation, or
• we are satisfied with the action(s) the Council has taken or proposes to take.

(Local Government Act 1974, section 24A(6) & (7), as amended, section 34(B))

4. In relation to the first bullet point above, we can 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)
5. And 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)
6. We also cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)

Back to top

How I considered this complaint

7. I considered:
• information provided by Mr X and the Council, which included the Council’s complaint responses,
• the Council’s ‘Planning Enforcement Plan’,
• the planning history for each site, on the Council’s website,
• the Ombudsman’s Assessment Code.

Back to top

My assessment

8. The 12-month time restriction, detailed in paragraph 5 above, would apply to the part of Mr X’s complaint about the site which he says has been used for residential purposes for 30 years. I see no reasons why he was prevented from complaining to the Ombudsman sooner about this matter, so we will not exercise discretion to investigate this part of the complaint now.
9. Mr X also complains the Council has failed to receive the relevant tax revenue for unauthorised uses at two of the sites. But any loss of such income is something which affects all or most people in the Council’s area. With reference to paragraph 6 above, the Ombudsman has no jurisdiction to investigate such matters.
10. And even if these restrictions were not relevant, the Ombudsman does not act as an appeal body against decisions on planning enforcement cases. This means we do not overrule Council decisions or tell it how it should operate its services. Rather, we look at whether there was fault in the way it makes its decisions. If we decide there was no fault in how it did so, we cannot question whether it should have reached a particular decision or say it should have reached a different outcome, regardless of whether the complainant disagrees with the decision the organisation made.
11. Councils can take enforcement action where there is a breach of planning control. It is for the authority to decide if there has been a breach, and whether it is expedient to take enforcement action. 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.
12. I find there is not enough evidence of fault, in the way the Council has considered the planning enforcement issues for each site, to justify starting an investigation. In reaching this view, I am mindful that:
• In relation to the alleged residential use, the Council says it has visited the site on numerous occasions over the years, and instructed a private investigator to consider its monitoring options. The Council was entitled to use its professional judgement to decide whether it had sufficient evidence to take formal enforcement action. More recently, the Council increased the frequency of its visits, and a breach of planning control was identified. The owners gave assurances that the unauthorised use would cease, and I understand the Council is currently considering its next steps, having attempted to interview the landowners.
• In relation to the alleged business use, the Council has attempted to visit the site and has contacted the owners in order to assess whether breaches of planning control have occurred.
• At the third site, the Council has visited and is in discussions with the owners in order to ascertain if a breach of planning control had occurred.
13. Finally, the core outcome Mr X wants from this complaint is for the Council to take enforcement action at the three sites. We cannot order councils to take such action. As noted above, the Council has been liaising with the respective landowners, so its enforcement investigations are moving forward; an investigation by the Ombudsman is unlikely to achieve much more in terms of progressing the enforcement cases to a conclusion. That we cannot achieve Mr X’s desired outcome, and could not add anything worthwhile to the ongoing enforcement investigations, are further reasons why we will not investigate. I will, however, remind the Council to keep Mr X updated on the progress of its planning enforcement investigations.

Back to top

Final decision

14. We will not investigate Mr X’s complaint because:
• part of it is late,
• issues which affect all or most people in the Council’s area are outside of our jurisdiction,
• there is not enough evidence of fault in the Council’s handling of each enforcement case,
• we cannot achieve the substantive outcome he is seeking, and,
• an investigation is unlikely to add anything worthwhile in terms of progressing the enforcement cases.

Back to top

Investigator's decision on behalf of the Ombudsman