Summary: We will not investigate this complaint about how the Council dealt with breaches of planning control. This is because we are unlikely to find fault. The complainant also had the right to appeal to the Planning Inspector.

The complaint

1. Ms X has complained about how the Council dealt with breaches of planning control. Ms X says the Council has treated her unfairly and its enforcement investigation was not proportionate. Ms X is also unhappy with the Council’s decision not to take enforcement action against her neighbour.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended)
4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• Delay – usually over eight weeks – by an authority in deciding an application for planning permission
• A decision to refuse planning permission
• Conditions placed on planning permission
• A planning enforcement notice.

5. 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

6. I considered information provided by Ms X and 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. Councils do not need to take enforcement action just because there has been a breach.
8. Ms X has complained about the Council’s decision not to take enforcement action against her neighbour. However, I am satisfied the Council properly looked into Ms X’s concerns before deciding the outbuilding was permitted development and did not need planning permission.
9. Ms X says the Council initially did not visit her neighbour’s property and based its decision on photographs. But there is no requirement for officers to visit a site and the Council has also since carried out a site visit.
10. I understand Ms X disagrees with the Council’s decision not to take enforcement action against her neighbour. But the Council was entitled to use its professional judgement to decide it did not have any grounds on which to take enforcement action. As the Council properly considered if it should take enforcement action, it is unlikely I could find fault.
11. Ms X has complained about how the Council dealt with possible planning breaches at her property and says she has been treated unfairly compared to her neighbour. But councils need to investigate potential breaches, and each case will be dealt with based on the individual circumstances. Ms X could have chosen to continue the development and not applied for retrospective planning permission. She would have had the right to appeal to the Planning Inspector if the Council then decided to take enforcement action. I consider it would have been reasonable for Ms X to use her appeal right. The Ombudsman will not usually investigate when someone has the right to appeal to the Inspector.

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Final decision

12. We will not investigate Ms X’s complaint because we are unlikely to find fault with how the Council dealt with a possible planning breach at Ms X’s neighbour’s property. Ms X also had the right to appeal to the Planning Inspector.

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Investigator's decision on behalf of the Ombudsman