Summary: We will not investigate this complaint about the Council failing to take enforcement action against alleged breaches of planning control at a property next to the complainant. It is reasonable to expect the complainant to have contacted us sooner about the older issues, and there is insufficient evidence of fault in the way the Council has reached its decisions not to pursue enforcement action.

The complaint

1. Mrs X complains the Council has failed to take planning enforcement action against the alleged commercial use of, and building works to, the neighbouring property.

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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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. In that regard, 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)

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How I considered this complaint

6. I considered information provided by the Mrs X and the Council, which included their complaint correspondence and confirmation of the reasons for not taking enforcement action.
7. I also considered the Ombudsman’s Assessment Code.

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My assessment

8. The 12-month time restriction detailed in paragraph 5 above would apply to any parts of the complaint about enforcement issues which arose between 2021 and 2023. I see no reasons why Mrs X would have been prevented from contacting us sooner about these matters, so we would not exercise discretion to consider them now.
9. 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 whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
10. I consider there is insufficient evidence of fault in the way the Council has reached its decisions on each of the enforcement matters raised by Mrs X. In reaching this view, I am mindful that it is for councils to judge whether there is a breach of planning control. If there is a breach, councils have the discretion to take enforcement action to remedy it, but they are under no obligation to do so. Government guidance says councils should act proportionately when considering their enforcement powers. There is no expectation councils should automatically enforce against every planning breach.
11. 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.
12. The Council’s complaint responses provide a detailed explanation of how it has investigated each enforcement issue raised by Mrs X, and how it reached its decisions that the changes either did not amount to operational development, did not constitute a material change of use, or that it was not expedient to pursue enforcement action. The Council was entitled to use its professional judgement to reach these decisions, even if Mrs X disagrees with the outcome.

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Final decision

13. We will not investigate Mrs X’s complaint because it is reasonable to expect her to have contacted us sooner about the older issues, and there is insufficient evidence of fault in the way the Council has reached its decisions not to pursue enforcement action.

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Investigator's decision on behalf of the Ombudsman