Summary: We will not investigate this complaint about the Council’s handling of a planning enforcement case and the subsequent complaints process. This is because there is insufficient evidence of fault in the way the Council made its decision on the enforcement case, and the delay in reaching that decision does not, on balance, cause a significant enough injustice.

The complaint

1. Mr X complains about the Council’s handling of its planning enforcement investigation into a breach of condition at the neighbouring property. In particular, he says it took 225 days for the Council to reach a decision, with no meaningful updates during that time. He also says it did not provide transparency, failed to consider his father’s severe medical vulnerabilities or conduct an Equality Impact Assessment (EIA), and dismissed national best practice.
2. Mr X says the Council’s delay and failure to enforce against the unauthorised works had a severe impact on his father’s health, as the intrusive overlooking caused ongoing distress, anxiety and a constant sense of insecurity in their home.
3. Mr X also complains the Stage 2 complaint was reviewed by an officer responsible for the service being complained about, which undermines independence.

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The Ombudsman’s role and powers

4. 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
• 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))

5. 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)
6. And as a publicly funded body, we must be careful how we use our limited resources. This means we consider complaints in a proportionate manner, and do not try to provide a response to every individual issue or question a complainant may have raised.
7. It is also 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

8. I considered:
• information provided by Mr X and the Council, which included the Council’s complaint responses.
• the planning applications for the works at the neighbouring property, and Mr X’s related planning application.
• the Council’s ‘Enforcement Plan’.
• the Ombudsman’s Assessment Code.

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My assessment

9. I appreciate Mr X and his father are very unhappy the Council has decided it is not expedient to pursue enforcement action against the unauthorised works at the neighbouring property.
10. But 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. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
11. In that regard, councils can take enforcement action if they find a breach of planning rules. However, they should not take enforcement action just because there has been a breach of planning control. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate and expedient 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. Councils do not consider the impact of harm to individuals.
12. I consider there is insufficient evidence of fault, in how the Council reached its decision on the planning enforcement case, to justify investigating this part of the complaint. In reaching this view, I am mindful that:
• Each planning enforcement case must be determined on its own merits.
• Planning enforcement officers visited the neighbouring property, taking photographs and measurements.
• The Council was entitled to have regard to the observations of the Planning Inspector, who had granted planning permission for the development.
• The Council was entitled to reach its own professional judgement on the permanency of the neighbour’s new boundary fence, and the extent of any overlooking from the unauthorised works, even if Mr X disagrees with the conclusions reached.
• The Council cannot take the individual circumstances of the complainant into account when deciding whether to pursue enforcement action. In that regard, there is no duty to complete a ‘stand-alone’ EIA when making a decision on expediency in planning enforcement, and the Ombudsman would not expect to see one in these circumstances.
13. The Council acknowledges the time taken to reach its decision did not adhere to the published timelines in its Enforcement Plan. I appreciate this delay and uncertainty would have been distressing and frustrating for Mr X and particularly his father. However, given the planning enforcement outcome is likely to have been the same but for this delay, on balance, I do not consider the injustice is significant enough to investigate this part of the complaint.
14. As we have decided not to investigate the substantive planning enforcement matters being complained about, it would not be a good use of our resources to investigate Mr X’s concerns about the Council’s complaint process in isolation.

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Final decision

15. We will not investigate Mr X’s complaint because:
• there is insufficient evidence of fault in the way the Council made its decision on the enforcement case,
• the delay in reaching that decision does not, on balance, cause a significant enough injustice, and,
• it would not be a good use of our resources to look at the Council’s complaint process in isolation.

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Investigator's decision on behalf of the Ombudsman