Summary: We will not investigate this complaint about the Council deciding not to take planning enforcement action against an outbuilding at a property next to the complainant. There is not enough evidence that fault is likely to have affected the Council’s planning enforcement decision.

The complaint

1. Mr X complains about the Council’s decision not to take planning enforcement action against a neighbour’s outbuilding which exceeds the permitted development allowances.

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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, 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 no worthwhile outcome achievable by our investigation.

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

3. With regard to the first bullet point above, 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. The law also says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

5. I considered information provided by Mr X and the Council, which included the Council’s complaint responses.
6. I also considered the Ombudsman’s Assessment Code.

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My assessment

7. I appreciate Mr X is unhappy the Council has decided it will not pursue planning enforcement action if the neighbour does not submit a planning application.
8. But 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 decision, and we consider if any fault we may find is likely to have affected the planning outcome. In other words, we will only pursue a complaint if there is clear evidence of fault in the way a decision was made which, but for that fault, is likely to have led to a different decision or outcome for the complainant.
9. I consider there is insufficient evidence that any fault has affected the planning enforcement outcome here, so we will not start an investigation. In reaching this view, I am mindful that:
• Planning enforcement is discretionary. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
• Planning guidance explains height measurements should be taken from the ground level immediately adjacent to the building in question and in circumstances where the ground level is uneven, the ground level is the highest part of the surface of the ground next to the building. The Council has visited the site, taken photographs, and explained to Mr X why it took measurements from two points on the eastern elevation of the outbuilding.
• The Council accepts there is a breach of the permitted development criteria, and has written to the neighbour encouraging them to submit a planning application. But if this is not forthcoming, the Council has explained why it does not consider it expedient to pursue enforcement action. That is a professional judgement it is entitled to reach, even if Mr X disagrees with that decision.
10. We have not investigated any parts of the complaint about the Council’s consideration of related building control issues. With reference to paragraph 4 above, this is because Mr X does not appear to have raised this particular matter with the Council via its complaints process. I consider it reasonable to expect him to do so. Mr X can pursue a new complaint with the Ombudsman once he has received the Council’s final response on this matter.

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Final decision

11. We will not investigate Mr X’s complaint because there is not enough evidence that fault has affected the planning enforcement outcome.

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Investigator's decision on behalf of the Ombudsman