Summary: We will not investigate this complaint about how the Council dealt with a breach of planning control and an application to discharge a planning condition. This is because we are unlikely to find fault.

The complaint

1. Mr X has complained about how the Council has dealt with a breach of planning control and an application to discharge a planning condition. Mr X says planning conditions for the original application were not complied with, and the access for the development encroaches on his property. Mr X also says he was not properly consulted about the application to discharge planning conditions.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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)

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How I considered this complaint

4. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

5. Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission. It is for the council to decide if there has been a breach of planning control and if it is expedient to take further action. Government guidance stresses the importance of affective enforcement action to maintain public confidence in the planning system but says councils should act proportionately. Informal action can often be the quickest and most cost-effective way of achieving a satisfactory result. The council may also request a retrospective application to regularise the situation.
6. The Ombudsman does not act as an appeal body against enforcement decisions. Instead, we consider if there was any fault with how the decision was made.
7. In this case, a planning application was approved following an appeal to the Planning Inspector. The permission was subject to conditions, including a condition which said the developer must submit details of the proposed boundary treatments for the site to the Council for approval before commencing the development. The Council accepts this condition was not complied with. However, the developer submitted an application to discharge the condition retrospectively. It is not unusual for councils to accept retrospective applications to regularise a development. I am satisfied the Council properly considered the acceptability of the boundary treatment for the site before discharging the condition. The Council has also explained in response to Mr X’s complaint why the boundary details submitted were acceptable.
8. I understand Mr X disagrees. But the Council was entitled to use its professional judgement in this regard. Councils also do not need to take enforcement action just because there has been a breach.
9. Mr X says he was not properly consulted about the application, and the development encroaches on his property. However, councils do not need to consult residents about applications to discharge planning conditions. It is not for the Council to get involved in land ownership issues and concerns about the development encroaching on Mr X’s land will be a civil matter between the parties.
10. Mr X has also complained about the Council’s complaint handling. However, where the Ombudsman has decided not to investigate the substantive issues complained about, we will not usually use public resources to consider more minor matters such as complaint handling.

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Final decision

11. We will not investigate Mr X’s complaint because we are unlikely to find fault by the Council.

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Investigator's decision on behalf of the Ombudsman