Summary: We will not investigate Mr X’s complaint about the Council’s decision not to take enforcement action against a neighbour’s structure which is in breach of planning regulations, and how it replied to his complaint and correspondence. There is not enough evidence of fault in the Council’s enforcement decision‑making process to warrant investigation. We do not investigate council complaint‑handling where we are not investigating the core issue giving rise to the complaint. We also cannot achieve the outcome he seeks.

The complaint

1. Mr X lives near a property whose owner installed an unauthorised structure, hardstanding and planting on adjacent agricultural land. He complains the Council:
1. made a planning decision to require the removal of the development, but enforcement officers have then decided not to do so;
2. did not provide full or proper replies to his complaints and correspondence.
2. Mr X says the structure is visible from surrounding properties and considers the Council has been discourteous to him in its replies. He wants the structure removed or moved within the domestic curtilage of the host property.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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
• 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

5. I considered information from Mr X, relevant online maps, and the Ombudsman’s Assessment Code.

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My assessment

6. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and, but for that fault, officers would have reached a different conclusion. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision was reached after following proper process.
7. The Council and Mr X agree the neighbour’s development is a planning breach. Mr X considers the Council has changed its position on removing the structure. Where there is a resolution by a committee or by officers that a development is a planning breach, that case is referred to a council’s planning enforcement officers. It is then for enforcement officers to decide, on behalf of the entire local authority, how to proceed. It is not fault or an improper intervention for enforcement officers to take control of a planning breach case, as it is ultimately their role to determine what action, if any, the council will take against such breaches.
8. As the Council advised Mr X, its planning enforcement powers are discretionary. It is for officers to decide if, when and to what extent they should use them in each case. Officers invited a retrospective planning application from the neighbour to regularise the development but did not receive one. It was then for officers to decide whether to use their authority’s enforcement powers. They considered the location, scale and appearance of the development and Mr X’s comments and concerns. Officers took account of their policy and national government guidance when reaching their decision that the development as built did not cause such planning harm to warrant them taking enforcement action. That was a professional judgement officers were entitled to make after gathering and assessing the relevant information. There is not enough evidence of fault in the Council’s decision-making process here leading to their enforcement decision to warrant us investigating. We recognise Mr X thinks the Council’s decision is wrong, disagrees with it and wants it to take further enforcement action. But it is not fault for a council to properly make a decision with which someone disagrees.
9. Mr X complains about the content of some of the Council’s replies to his correspondence and complaint. We do not investigate councils’ contacts and complaint‑handling in isolation where we are not investigating the core issues giving rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
10. Mr X wants the development removed or moved to within the host property’s curtilage. We cannot order councils to in turn order residents to take such action where they have decided not to enforce. That we cannot achieve the outcome Mr X seeks is a further reason why we will not investigate.

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Final decision

11. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s enforcement decision‑making process to warrant investigation; and
• we do not investigate councils’ complaint-handling where we are not investigating the core issue giving rise to the complaint; and
• we cannot achieve the outcome he wants.

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Investigator's decision on behalf of the Ombudsman