Summary: We will not investigate this complaint about the Council’s handling of planning enforcement and statutory nuisance issues related to the operation of a nursery school. There is insufficient evidence of fault in the way the Council has responded to the matters raised.

The complaint

1. Mrs X complains the Council failed to take enforcement action against breaches of planning conditions at a nursery school, and has ignored the diary sheets she submitted regarding nuisances caused by activities associated with the site.

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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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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. Also, the Ombudsman does not normally reconsider issues addressed in a previous complaint. The Ombudsman has considered complaints from Mrs X in October 2023 and March 2024 about the operation of the nursery. We will not look at any parts of the current complaint about planning and nuisance issues which were considered under these two previous decisions.
5. Finally, 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

6. I considered:
• information provided by Mrs X and the Council, which included their complaint correspondence and her March 2024 noise nuisance diary sheets.
• the planning conditions attached to the planning permission for the site.
• the Ombudsman’s Assessment Code.

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My assessment

7. I appreciate Mrs X is very unhappy about the operation of the nursery school.
8. But the Ombudsman does not act as an appeal body against Council decisions. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at whether there was fault in how the Council 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.
9. I consider there is insufficient evidence of fault, in the way the Council has handled the concerns Mrs X raised since March 2024, to justify starting an investigation. In reaching this view, I am mindful that:
• Planning enforcement action is discretionary, and Government guidance says councils should act proportionately when considering their enforcement powers. In other words, there is no expectation that councils should automatically enforce against every planning breach. Instead, councils may decide to take informal action instead or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of an application.
• Although there was a delay in the planning conditions being met by the applicant, the Council was entitled to decide it was not expedient to pursue enforcement action as the applicant was working towards getting these conditions discharged. The planning officers were also entitled to use their professional judgement to decide when they had sufficient information to discharge the conditions.
• The Council’s Environmental Education and Enforcement (EEE) Team reviewed the diary sheets Mrs X submitted in March 2024, but concluded they were insufficiently detailed to withstand any future formal scrutiny.
• The EEE Team also visited the site in mid-2024, and noted one security light was set at is lowest setting (i.e. less light emitted than a streetlight), and another had been turned off completely.
• The Council has explained to Mrs X that the noise of children playing within the nursery grounds, or visitors’ car doors opening/closing, would not constitute a statutory nuisance. Overall, the EEE Team concluded there is currently no evidence of a statutory nuisance. Nonetheless, the Council has asked the nursery operator to be mindful and to ask visitors to be as considerate as possible.
• Members of the public are entitled to park on the street within the parking guidelines, and obstruction of the highway or driveways can be reported to the Police. Parking services have also considered Mrs X’s diary sheets, but note that when officers patrol locations of this type, motorists tend to see them and adhere to any restrictions. For example, when officers conducted a patrol in Mrs X’s area, no penalty charge notices were issued.
10. As we are not investigating the main planning or nuisance aspects of the complaint, it would not be a good use of our resources to pursue any concerns about the Council’s complaint handling in isolation.

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Final decision

11. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault in the way the Council has handled the planning and nuisance matters she has raised since March 2024.

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Investigator's decision on behalf of the Ombudsman