Summary: We will not investigate this complaint about the Council’s decision not to take enforcement action against a breach of planning control. There is insufficient evidence of fault in the Council’s actions.

The complaint

1. Ms X complains the Council failed to uphold its policies and take enforcement action against a breach of planning control on a site close to her home.

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The Ombudsman’s role and powers

2. 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.

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

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How I considered this complaint

3. I considered information provided by Ms X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The Council granted retrospective planning permission for changes to a site close to Ms X’s property. The planning permission included a condition stating, “no new or additional buildings, structures or enclosures (including gates, walls and fences) shall be erected within the land hereby approved without planning permission”.
6. Ms X reported a breach of the condition.
7. The Council confirms it investigated the reported breach. Officers decided the development does not have a detrimental impact on the amenity of the site or the immediate area. It decided it was not expedient to take enforcement action against the breach of planning control.
8. I understand Ms X disagrees with the enforcement officers’ opinion. I also understand she believes the original planning officer would not have included the condition requiring planning permission for new structures, gates or enclosures if they did not consider them to be detrimental.
9. However, the planning condition does not prevent such development. It only requires planning permission to be sought. In this case, Ms X’s neighbour chose not to apply for planning permission before erecting a fence and gates.
10. Where the breach involves carrying out development without permission, the Council may serve an Enforcement Notice or request the developer to put in a retrospective planning application. However, this is if it is expedient to do so. It is for the Council to decide whether it is expedient to take action. The term ‘expedient’ is not defined in the Town and Country Planning Act 1990. However, planning policy and court decisions show that the test is whether the development is causing serious harm to the public.
11. The Ombudsman is not 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.
12. 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 Ms X. In reaching this view, I am mindful that councils have the discretion to take enforcement action to remedy these, but they are under no obligation to do so.

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Final decision

13. We will not investigate Ms X’s complaint because we have not seen enough evidence of fault in the way the Council decided not to take enforcement action against a breach of planning control.

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Investigator's decision on behalf of the Ombudsman