Summary: We will not investigate this complaint about a planning enforcement matter because there is not enough evidence of fault to justify investigating and further investigation would not lead to a different outcome.

The complaint

1. Mr Y complained the Council racially abused him and used derogatory language during its contact with him. He is also unhappy that the Council investigated an alleged breach of planning restrictions for fencing he had installed on his boundary perimeter. He says the investigation was driven by racist and religious bias against him and it is unfair his neighbours have been treated differently. He has also complained about the Council’s handling and response to his complaint.
2. Mr Y says the matter has deeply upset him and feels his evidence was ignored, which wasted his time and energy while he was receiving cancer treatment.

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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
• further investigation would not lead to a different outcome.

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

4. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

5. I considered information Mr Y and the Council provided and the Ombudsman’s Assessment Code.

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My assessment

6. The Council began a planning enforcement investigation after a member of the public contacted it about metal fencing Mr Y had installed outside his property. This included contacting the owner of the property and carrying out a site visit. Mr Y says that during the site visit and a following call, the Council’s planning enforcement officer racially abused him and used derogatory language towards him based on his race, disability and religion. He says this occurred again during a call following the visit.
7. He complained about the actions of the officer and the investigation, which he said was unfair and racially biased. He said he had given evidence of others who had also installed fencing but were not, he said, being investigated for a breach of planning restrictions.
8. The Council responded to Mr Y’s complaint, explaining that it had spoken to the officer. It said the allegations made had been taken extremely seriously. However, it said that it was unable to reach a conclusion so could not uphold Mr Y’s complaint but would remove the officer from the case.
9. The Council also explained how, under a condition of the planning permission for Mr Y’s property, his permitted development rights had been restricted. It said this was why the boundary fencing Mr Y had installed would be a breach of planning restrictions. It said that while Mr Y had provided photographs of other properties which also had fencing, this would not necessarily mean that these fences had created a precedent. Mr Y then approached us.
10. Since approaching us, Mr Y has been told that he must remove the fencing from the perimeter of his property and if he does not, the Council will take enforcement action against him.
11. Mr Y has complained the Council has investigated him putting up fencing but not investigated others and feels that this is because of his race and religion.
12. The Council’s policy on planning enforcement says it, “will investigate all reports about alleged breaches of planning control…to determine whether a breach has…occurred, and if it has, will then determine the most appropriate course of action”. Consequently, it had to investigate the report made about Mr Y’s fencing, regardless of whether Mr Y’s neighbours also had fencing or not.
13. The Council has carried out a site visit and explained why the fencing would be a breach of planning control. It has then considered whether it would have approved planning permission for the fencing and whether retrospective permission ought to be given. In this case, it has found that retrospective permission would not be granted, before deciding to take enforcement action if Mr Y does not remove the fencing.
14. As the Council has acted in line with its policy to investigate the breach, there is not enough evidence of fault in the Council’s investigation to justify investigating this complaint. We will not investigate this complaint.
15. Mr Y has also complained about the lack of consideration of photographs he has provided about his neighbours’ fencing. The photographs were acknowledged by the Council, but it said fencing at other properties would not necessarily mean that a precedent had been set to allow fencing for Mr Y’s property. The Council considered the evidence Mr Y provided and explained its rationale about why these photographs would not affect its position on the enforcement action against Mr Y. As the Council has considered the evidence and concluded on whether these affect his case, there is not enough evidence of fault to justify investigating.
16. Mr Y has complained that a Council officer racially abused him and used derogatory language during his contact with him. The Council has spoken to the officer concerned and outlined its recognition of the seriousness of the allegation. It has explained that it has been unable to reach a conclusion because of the nature of the complaint, this being where the complaint is denied by the officer and there is no other evidence. It has then considered what action it could take to try to reduce the upset and mistrust Mr Y has felt and has removed the officer from the case. These are the actions we would expect a Council to take in response to such an allegation.
17. We are an independent evidence-based organisation and do not take sides. As we would have opposing evidence, we would be unable to reach a conclusion due to a lack of evidence of fault. Therefore, there is not enough evidence of fault to justify investigating this complaint and as further investigation would not lead to a different outcome, we will not investigate this complaint.
18. As we are not investigating the substantive complaints in this matter, it is not a good use of public resources to investigate how the Council dealt with or responded to Mr Y’s complaint. We will not investigate this.

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Final decision

19. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigating and further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman