Summary: We will not investigate this complaint that the Council has allowed a development which encroaches over and affects the complainants’ property. There is not enough evidence that fault by the Council has affected the planning outcome.

The complaint

1. Mrs X, who also acts on behalf of her parents, complains the Council has allowed their neighbour to construct an extension with opening windows and a gutter which encroach across the boundary, and that the Council’s associated communications about the matter were poor.

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The Ombudsman’s role and powers

2. 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
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

3. With reference 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)
4. 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 issue.

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How I considered this complaint

5. I considered:
• information provided by Mrs X and the Council, which included their complaint correspondence.
• information about the neighbour’s planning applications, available on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

6. I appreciate Mrs X and her parents are unhappy about the extension built at the neighbouring property.
7. But the Ombudsman is not 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 whether there was fault in how it made its decision, and we consider if any fault we may find is likely to have affected the outcome or caused the complainant a significant injustice. 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 or a more positive outcome for the complainant.
8. I consider there is insufficient evidence that fault by the Council has affected the planning outcome here, so we will not start an investigation. In reaching this view I am mindful that:
• There was no requirement to visit neighbouring properties when determining the planning applications or investigating the planning enforcement reports.
• Objections to the original application were summarised in the officer’s report.
• Concerns about maintenance access and property values are not material planning considerations, so they could not be taken into account when determining the planning applications.
• Each planning application must be assessed on its own merits, based on the situation that prevails at the time, and not something that may or may not happen in the future.
• The officer’s reports show the Council considered the impact on the amenity of Mrs X’s property when it determined the applications.
• The Council was entitled to reach a professional judgement that the changes to the original scheme could be dealt with via a non-material amendment application, and there was no requirement to publicise that application.
• If Mrs X believes the extension encroaches over the boundary on to their property, then that would a private, civil matter between them and the neighbour.
9. As we are not investigating the substantive planning issues being complained about, it would not be a good use of our resources to investigate Mrs X’s associated concerns about poor communication and record keeping in isolation.

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Final decision

10. We will not investigate Mrs X’s complaint because there is not enough evidence that fault by the Council has affected the planning outcome, and we will not pursue her associated concerns about poor communication/record keeping as a separate issue.

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Investigator's decision on behalf of the Ombudsman