Summary: We will not investigate Mr X’s complaint about how the Council dealt with a planning breach relating to a nearby communal footpath. There is not enough evidence of fault in the Council’s enforcement or planning processes to warrant an investigation. Even if there had been such fault, there is insufficient significant personal injustice caused by the matters complained of to justify us investigating.

The complaint

1. Mr X lives in a house on a residential area. A developer sought and received permission for various aspects of a new development, including a communal footpath near Mr X’s house, linking roads on the estate. The originally permitted footpath design was for a winding one. Mr X complains the Council:
1. failed to enforce the approved application and allowed the developer to install a straighter footpath;
2. failed to properly investigate residents’ concerns and the planning breach relating to the footpath as built;
3. improperly accepted and granted a non-material amendment (NMA) application from the developer to keep the footpath as installed.
2. Mr X says the original footpath design added visual appeal and amenity value for residents, who contribute to the costs for the upkeep of the land which includes the path. He considers the footpath negatively affects his amenity, and current and future enjoyment of the area and the value of his property. He says he would not have bought his house if he had known the path would look as it does. Mr X says he and other residents felt frustrated, excluded and disregarded as they could not object to the NMA. He says resident have been financially impacted by the diminished amenity due to the different footpath. Mr X considers the Council’s decision undermined residents’ trust in the planning process. He says the Council’s decision not to enforce has caused significant inconvenience and distress, and he has spent considerable time and effort pursuing the matter.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We 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. 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. We do not start or continue 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.

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

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How I considered this complaint

5. I considered information from Mr X, relevant online maps and information, and the Ombudsman’s Assessment Code.

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My assessment

6. We are not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation has followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, even if someone disagrees with it.
7. Mr X identified from historical planning information sent to him by the Council that the developer had not installed the path to the originally permitted design and the new footpath as built had not been the subject of an NMA application to regularise it. Officers considered the matter and determined the footpath as built was in breach of the original planning permission. They decided the breach justified an invitation to the developer to change the footpath to the originally permitted design or submit an NMA which would regularise what had been built. That is one of the options local planning authorities have when they identify a planning breach. The NMA process does not require councils to consult the public, unlike a full planning application. The developer lodged an NMA. Officers determined the change between the original design of footpath and the one installed was insufficiently different to require any further action or a full planning application. Officers noted the footpath, while different in design, served the same function for pedestrians in the area. It is for officers to decide whether an NMA should be used to resolve a planning breach. In reaching their professional judgement decision, which the planning enforcement process entitled them to make, officers considered relevant information on the design, location and purpose of the path and took account of Mr X’s concerns.
8. There is not enough evidence of fault in the Council’s enforcement or NMA planning application processes here, nor in how they investigated the breach and dealt with Mr X’s concerns, to warrant an investigation. We recognise Mr X disagrees with the officers’ enforcement and planning decisions. But it is not fault for a council to properly make a decision with which someone disagrees
9. Even if there had been Council fault here we would not have investigated. The main outcome of the planning and enforcement processes is that the original footpath design has changed. That outcome causes insufficient significant personal injustice to Mr X or other residents, including from amenity impacts, to warrant us investigating. We recognise the NMA process made Mr X and others feel aggrieved. But we do not consider injustice where it stems from a process which has not involved council fault, which is the case here. The impact of a new development on an existing property’s value is not a material planning issue which local authorities are required to take into account. The sum of the further claimed injustices in paragraph two above, added to the amenity impact of the path, would have remained an insufficiently significant total amount of personal injustice to justify us investigating here.
10. We note Mr X says residents are in some way financially affected by the new footpath, which he considers has diminished the area’s amenity. If Mr X considers the sum he pays for the area’s upkeep should change because of the footpath, that is a matter between him and the body to which he makes his payment, not with the Council acting as the planning authority.

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Final decision

11. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s enforcement or planning processes to warrant an investigation; and
• even if there were such fault, there would be insufficient significant personal injustice caused to Mr X from the matters complained of here to justify us investigating.

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Investigator's decision on behalf of the Ombudsman