Summary: We will not investigate this complaint about the Council’s handling of planning enforcement issues at the complainant’s home. We are unlikely to be able to conclude whether there was fault during the first enforcement investigation, there is not enough evidence of fault in the handling of the second investigation, and Mrs X has appealed to the Planning Inspector about the decision on her planning application.

The complaint

1. Mrs X complains a planning enforcement officer gave misleading/incorrect advice about whether the levelling of her garden and the erection of a boundary wall needed planning permission. Mrs X says she has had to spend a significant amount of time, effort, and money on trying to resolve the matter.

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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
• 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.

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

4. With regard to the first bullet point above, the Ombudsman does not act as an appeal body against Council decisions. Rather, we look at whether there was fault in the way it made its decisions. If we decide there is not enough evidence of 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.
5. And we cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)

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How I considered this complaint

6. I considered:
• information provided by Mrs X and the Council, which included the main complaint correspondence.
• the Council’s ‘Planning enforcement and monitoring plan’.
• information about Mrs X’s planning application, available on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

7. The Council’s complaint responses explain that the land level in isolation – whether raised or not – is not classed as development so did not require planning permission. However, the erection of a boundary wall on top of the raised ground level (with a height of more than 2 meters above the original ground level) did require planning permission.
8. The Council says during the first visit by an enforcement officer, it was explained that a means of enclosure up to 2 meters in height could be permitted development not requiring planning permission, but the officer was not able to advise on whether Mrs X’s proposal was acceptable, as the wall was under construction and not yet completed. I understand Mrs X says she was not told the height measurement is taken from the original ground level and not the raised level.
9. In the absence of any independent evidence, an investigation by the Ombudsman is unlikely to be able to establish whether the enforcement officer gave incorrect or misleading advice during discussions at that first visit, so no worthwhile outcome is achievable by our continued involvement in this aspect of the complaint.
10. Subsequently, during its second enforcement investigation, the Council was entitled to invite Mrs X to submit a planning application, so it could formally consider whether the works she had carried out were acceptable. I have seen nothing to suggest the enforcement officer gave any indication that this application was likely to be approved. So, there is not enough evidence of fault in the way the second enforcement investigation was handled.
11. And, with reference to paragraph 5 above, we have no power to consider any parts of the complaint about the decision on Mrs X’s planning application, as she has already used her right of appeal to the Planning Inspectorate.

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Final decision

12. We will not start an investigation into Mrs X’s complaint because we are unlikely to be able to conclude whether there was fault in the first enforcement investigation, there is not enough evidence of fault in the handling of the second investigation, and Mrs X has appealed to the Planning Inspector about the decision on her application.

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Investigator's decision on behalf of the Ombudsman