Summary: We will not investigate this complaint about the Council’s decision not to take enforcement action against a developer for breaching planning control and the Hedgerow Regulations. We have not seen enough evidence of fault in the process leading to the Council’s decision. Also, we consider Mr X has not suffered a significant personal injustice because of a failure to follow the complaints process which warrants our involvement.

The complaint

1. Mr X complains the Council has failed to taken enforcement action against a developer for the unlawful removal of a hedgerow and breach of planning control.
2. He also complains the Council failed to respond to his complaint according to its complaint procedure.

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The Ombudsman’s role and powers

3. 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

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

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My assessment

6. 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 effective enforcement action to maintain public confidence in the planning system but says councils should act proportionately.
7. 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.
8. In this case, the Council considered Mr X’s concerns. It has decided there is a technical breach of planning control because the hedgerow was removed before the relevant planning condition was discharged. However, it decided it was not expedient to take enforcement action. It is explained its reason for this is that any action would be at a considerable cost to the public purse and there was no remedial action it could require.
9. 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. As the Council properly considered if it was necessary to take enforcement action, it is unlikely I could find fault.
10. Mr X says the Council has failed to enforce the Hedgerow Regulations. But the Council does not have to prosecute the developer or require them to replace the hedgerow. The decision not to take action is one which the Council is entitled to take.
11. Finally, Mr X complains about the Council’s complaint handling. However, where the Ombudsman has decided not to investigate the substantive issues complained about, we will not usually use public resources to consider more minor matters such as complaint handling. We expect Councils to follow their complaints procedures. However, we do not consider the injustice suffered on this point alone warrants our involvement.

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Final decision

12. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council decided not to take enforcement action against the developer. And Mr X has not suffered a significant personal injustice because of the Council’s complaint handling.

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Investigator's decision on behalf of the Ombudsman