Summary: We will not investigate this complaint about how the Council dealt with breaches of planning control. This is because the complainant has appealed to the Planning Inspector. The complainant has not suffered significant injustice in relation to the remaining issues complained about.

The complaint

1. Ms X has complained about how the Council dealt with breaches of planning control. She says the Council has failed to take action in relation to the destruction of a listed building and has not complied with its enforcement policy. Ms X says she has been treated unfairly by the Council.

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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 cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
4. 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 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 provided by Ms X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission. It is for the council to decide if there has been a breach of planning control and if it is expedient to take further action. Government guidance stresses the importance of affective enforcement action to maintain public confidence in the planning system but says councils should act proportionately.
8. The Ombudsman does not act as an appeal body against enforcement decisions. Instead, we consider if there was any fault with how the decision was made.
9. In this case, the Council looked into Ms X’s concerns and an enforcement officer has visited the site and been in contact with the site owner. However, the Council decided it would not be expedient to take enforcement action. It said the breaches did not harm the significance of the listed building and the wall that had been demolished would be re-built once the conversion of the property was completed.
10. I understand Ms X disagrees with the Council’s decision not to take enforcement action. But councils do not need to take enforcement action just because there has been a breach, and the Council was entitled to use its professional judgement to decide it did not need to take enforcement action.
11. Ms X says there were delays with the Council’s enforcement investigation and it did not deal with the matter in line with its enforcement policy. However, I do not consider Ms X has suffered any significant injustice because of any delays as the Council ultimately decided enforcement action was not necessary. The Council has accepted it did not keep Ms X up to date. However, I do not consider any injustice suffered as a result significant enough to warrant an investigation by the Ombudsman as a stand-alone issue.
12. Ms X has also complained about the Council’s decision to take enforcement action against her. She says she has been treated unfairly by the Council and needed to erect a fence due to safety concerns. However, the Ombudsman cannot investigate Ms X’s concerns about the Council’s decision to take enforcement action against her. This is because she has used her right to appeal to the Planning Inspector. the Ombudsman cannot investigate matters where someone has already used their appeal right, even if the appeal did not address all the issues complained about.

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Final decision

13. We will not investigate Ms X’s complaint because she has used her right to appeal to the Planning Inspector. Ms X has not suffered significant injustice in relation to the remaining issues complained about.

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Investigator's decision on behalf of the Ombudsman