Summary: We will not investigate this complaint about the Council’s handling of a planning enforcement case and associated planning application. There is insufficient evidence that fault by the Council has affected its planning decisions, and its apologies for failures in its communications with the complainant is a satisfactory response to that part of the complaint.

The complaint

1. Mr X complains about the Council’s handling of a planning enforcement case and associated planning application, relating to works at a nearby property. In particular, he says the Council was reluctant to communicate with him, yet proceeded to approve amendments to the scheme.

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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
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the Council, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• we are satisfied with the Council’s response to the complaint.

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

4. With regard 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 in relation to the second and third bullet points, our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the organisation. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures. We do not start an investigation if we decide the impact of the alleged fault a person complains about is not so significant that we should investigate.
6. We also 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/care has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issues.
8. Finally, as a publicly funded body we must be careful how we use our resources. We conduct proportionate assessments of cases; closing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the Council did.

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How I considered this complaint

9. I considered:
• information provided by Mr X and the Council, which included the Council’s complaint responses and some of their other correspondence.
• information about the planning applications for the nearby property, as available on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

10. Mr X contacted the Ombudsman in September 2024. So, the 12-month time restriction, detailed in paragraph 6 above, would apply to any parts of his complaint about events prior to Autumn 2023. This would include any delays in responding to Mr X’s reports of a breach of planning control in late-2021, and the Council’s decision on the retrospective planning application in mid-2022. I see no reasons to exercise discretion to consider these late issues now.
11. And even if this time restriction did not apply, the Ombudsman does not act as an appeal body. This means we do not take a second look at a Council decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision, and we consider if any fault we may find in those processes is likely to have affected the outcome. In other words, we will only pursue a complaint if there is clear evidence of fault in the way a decision was made which, but for that fault, is likely to have led to a different decision/outcome.
12. I consider there is not enough evidence that fault by the Council has affected its decisions on the enforcement matters or the associated planning application, so we will not investigate these parts of the complaint.
13. In reaching this view, I am mindful that:
• 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. 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. As such 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.
• Officers are entitled to use their professional judgement to decide whether there has been a breach of planning control, whether it is expedient to take enforcement action, and whether a planning application is acceptable in planning terms; even if Mr X disagrees with the judgements reached.
• The planning enforcement team visited the site following reports that the development had not been built in in accordance with approved plans, and invited the submission of a retrospective application.
• Council officers are not obliged to carry out site visits before deciding on a planning application. Officers will often already have local knowledge of an area and be able to identify the impact of a proposed development using the plans accompanying an application, information from previous site visits, aerial photographs, and other tools such as Google Streetview.
• The Council visited again in response to concerns that a separate dwelling may have been created by the works to the property, but was satisfied it remained as a single unit.
14. The Council has also apologised that its responses to Mr X’s communications have not always been prompt, and it recognises that more timely and decisive responses would have brought the matter to a conclusion more swiftly. It says this has been fed back to the Planning team to drive improvements in the future.
15. Given that, much of the complaint is late, we are not investigating the substantive planning application/enforcement decisions, and as the works themselves do not (from the Ombudsman’s perspective) cause Mr X a significant injustice, I am satisfied the Council’s apology was an appropriate way to address the failings in the Council’s communications.

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Final decision

16. We will not investigate Mr X’s complaint because there is not enough evidence that fault by the Council has affected the planning outcomes, and the Council has apologised for failings in its communications with him.

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Investigator's decision on behalf of the Ombudsman