Summary: X complained about the Council’s decision on whether development near their home required planning permission. We decided to not investigate this complaint further, because we are unlikely to recommend a remedy for X or find evidence of fault in the decision-making process.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision about development on land near their home. X said the Council failed to properly investigate the issues before it decided the development did not require planning permission.

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The Ombudsman’s role and powers

3. We 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. 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, 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, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

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How I considered this complaint

4. I read the complaint and invited X to discuss it with me. I read the Council’s response to the complaint and considered an aerial photograph showing the location of the development in relation to X’s home.
5. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning enforcement powers

6. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
7. However, as planning enforcement action is discretionary, 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.

Background

8. X said they made the complaint on behalf of themselves and others but that X’s home is closest to the development. We have no record to show X has permission to represent other individuals.
9. X lives about 85 metres from the development and there is a high hedge near X which restricts views over their neighbour’s land. X and others alleged the development was unlawful as it did not benefit from planning permission.
10. The Council considered the allegation but decided no planning permission was necessary. Before it made its decision, the Council said it considered the law but did not seek legal advice.
11. X is not satisfied with the Council’s decision and believes that planning consent is required. X said the Council should have sought legal advice before making its decision.

My findings

12. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
13. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
14. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
15. I should not investigate this complaint further and my reasons are as follows:
• There is a significant distance between X and the development. Because of this further investigation is unlikely to result in a recommendation for a remedy for X.
• The enforcement decision-making process we expect is as follows. The Council should consider the allegation, consider its enforcement powers under the Town and Country Planning Act 1990, carry out a proportionate investigation (which may, at the Council’s discretion include a site visit), decide whether there is a breach of planning control, and if so, whether formal enforcement action is justified. Finally, the Council must keep a record of its decision. From the evidence I have seen, it is unlikely we would find fault in the way the Council decided no breach of planning control occurred.
• Questions relating to the legality of decisions are not for the Ombudsman to decide. It is up to the Council, not the Ombudsman, to decide what information, including legal advice, it needs to make its decision. We are not an appeal body or a court and so, in the absence of evidence of fault, will not determine whether a judgement made on an individual case is correct.

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Decision

16. I ended my investigation because I found no evidence to show that X was caused a significant injustice or that further investigation would result in a finding of fault in the decision-making process.

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Investigator's decision on behalf of the Ombudsman