Summary: We will not investigate this complaint about the Council’s decision not to pursue enforcement action and the time it took to investigate. This is because there is not enough evidence of fault by the Council or to show its actions caused Mr X significant injustice. We will not investigate this complaint about the Council’s failure to ensure planning controls were met between 2015 and 2022. This complaint is late and there is no good reason to exercise discretion.

The complaint

1. Mr X complains the Council took too long to investigate his concerns about breaches of planning controls by the owner of a site near his home and its decision not to take enforcement action.
2. He says the noise from the breaches disturbs his family’s sleep and he is concerned it could be affecting his health.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We 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)
6. 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, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. In July 2022 Mr X reported to the Council his concerns traffic on the site was more than the planning control allowed, and this was causing increased night-time noise and pollution. The Council investigated his concerns and issued the site with a Breach of Condition Notice in June 2023. Following this it asked the site to provide data on its night-time traffic so the Council could review its adherence. In May 2024 it concluded the site had breached the controls again. The Council chose not to take enforcement action against the site.
10. Mr X complains the Council should have decided sooner about the breach and feels the decision not to take enforcement action is solely motivated by costs. He also says the Council failed to ensure the site provided the data required in the planning controls from 2015.
11. We will not investigate Mr X’s complaint about the Council’s decision not to take enforcement action. The Ombudsman is not an appeal body, and this means we do not look at the Council’s decision to decide if it was right or wrong. We consider whether there was fault in the way it made this decision.
12. Councils have discretion to take enforcement action to remedy a breach, but they are under no obligation to do so. In each case, councils will decide whether further action is expedient, having regard to the provisions of the development plan and to any other material planning considerations. Relevant planning policies and other material considerations may pull in different directions; it is for the decision maker to decide the weight to be given to these factors.
13. I am satisfied the Council has properly looked into Mr X’s concerns. It got information on his allegations and decided there was a breach. It chose to issue a Breach of Condition Notice and monitor the situation. I understand Mr X disagrees with the Council’s decision not to take enforcement action. But the Council is entitled to use its professional judgement to decide whether to pursue this or not. There is insufficient evidence of fault in how it took this decision so we will not investigate this complaint.
14. Further, I cannot say that Mr X has suffered a sufficient injustice which warrants investigation of any potential delays in the Council investigating the breaches.
15. We will also not investigate Mr X’s complaint the Council did not ensure it received data from the site between 2015 and 2022. This complaint is late and there is no good reason to exercise discretion and consider it now.

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Final decision

16. We will not investigate Mr X’s complaint because part of his complaint is late, and we see no reason why Mr X could not have complained sooner. We are unlikely to find fault in the remaining complaints about the Council’s investigation of the breaches and its decision.

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Investigator's decision on behalf of the Ombudsman