Summary: We will not investigate this complaint about the Council’s decision not to take enforcement action against his neighbour for a breach of planning control. Also for its decision that there is no statutory nuisance at his neighbour’s property. We have not seen enough evidence of fault in the way the Council came to these decisions. Also it is reasonable to expect Mr X to make a claim on the Council’s insurance or in court if he believes the Council is responsible for allowing criminal damage to his property. Finally, we cannot achieve the outcome Mr X is seeking.

The complaint

1. Mr X complains the Council:
• Ignored reports and petition about breaches of planning control and statutory nuisance for years
• Has decided it is not expedient to take enforcement action against a breach of planning control
• Told the neighbour they could cause criminal damage to Mr X’s fence.
2. Mr X wants the Council to:
• Take enforcement action against the breach of planning control at the neighbour’s property; and
• Apologise and pay him compensation for the damage caused to his fence by his neighbour.

Back to top

The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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, or
• we cannot achieve the outcome someone wants.

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

Back to top

How I considered this complaint

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

Back to top

My assessment

7. The Council has confirmed it considered reports of a breach of planning control at Mr X’s neighbour’s home in 2019 and has reviewed the matter since then.
8. It says it decided in 2022 that dog boarding does not operate on a scale that changes the use to something other than a residential home.
9. It has apologised for failing to advise Mr X of this at the time.
10. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
• carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
11. Enforcement action is discretionary, and councils should act proportionately in responding to suspected breaches of planning control. (Ministry of Housing, Communities & Local Government, 2019, National Planning Policy Framework) Councils may decide to take informal action, formal action, or no action at all.
12. In this case the Council has investigated the reports of breaches of planning control. Based on the investigation it decided the activity at the neighbour’s home is not a material change of use and it is not expedient to take enforcement action. I understand Mr X disagrees but this is a decision the Council is allowed to make.
13. Mr X also complains the Council has failed to take action against statutory noise and odour nuisance from the same property. The Council confirms its Environmental Health Officers have investigated these reports and have decided there is no statutory nuisance.
14. Councils have a duty to investigate noise complaints they receive but their powers to take enforcement action in noise matters are discretionary. They may only use their powers where they are satisfied the noise identified amounts to a statutory noise nuisance. The assessment of whether a noise is a statutory nuisance is for officers to make. It is also for officers to decide what investigations of noise reports are required to make their statutory nuisance decision.
15. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Nor can we tell the Council whether it must take enforcement action against a breach of planning control or what is or is not a statutory noise nuisance. Instead, we look at the processes a Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a person disagrees with the decision the Council made.
16. Mr X says the Council gave his neighbour permission to damage his property. He has provided a copy of an email from the police. This says the police have seen an email from the Council to Mr X’s neighbour which says the Council told his neighbour they can remove trellis from the fence if she returns it to Mr X’s property.
17. I do not agree this is evidence the Council gave his neighbour permission to cause criminal damage to Mr X’s property. The Ombudsman cannot decide whether a Council is liable for damage. If Mr X believes the Council is responsible for damage to his property then he can either make a claim on the Council’s insurance or in the small claims court.

Back to top

Final decision

18. We will not investigate Mr X’s complaint because:
• We have not seen enough evidence of fault in the way the Council came to its decision not to take enforcement action and there is no statutory noise or odour nuisance.
• Further investigation will not lead to a different outcome; and
• We cannot achieve the outcome Mr X is seeking.

Back to top

Investigator's decision on behalf of the Ombudsman