Summary: We will not investigate Mr X’s complaint about the Council not enforcing against nor pursuing retrospective planning permission from the owner for a development near his property. There is not enough evidence of fault in the Council’s planning enforcement process to warrant us investigating. There is insufficient significant personal injustice caused to Mr X by the matters complained of to justify investigation. We also cannot achieve the outcome he wants.

The complaint

1. Mr X lives in a property near an access off a narrow lane leading on to open land. He complains the Council:
1. has allowed resurfacing of the access by the owner, amounting to development without planning permission;
2. has not pursued retrospective planning permission to regularise the planning breach.
2. Mr X says that as a result of there being no planning application, there has been no opportunity for local consultation or safety assessments by highways officers regarding the works. He says he is worried that drivers using his drive as a passing place could hit his vehicles there or pose a danger to his visiting grandchildren. Mr X wants the Council to pursue a retrospective planning permission, to allow views and objections to be made.

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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
• 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

5. I considered information from Mr X, relevant online maps and images, 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 agrees with Mr X that the access resurfacing amounts to development and is a planning breach. As the Council advised Mr X, where it identifies a breach, 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 did not receive a retrospective planning application from the neighbour. As the development was not authorised by a planning permission, it was then for officers to decide whether to use their authority’s enforcement powers.
8. Officers visited and considered the location, scale and appearance of the development, and comments and concerns received from Mr X and others. They noted the access from the road on to the land had been in place for over 10 years. Its age meant the access point was immune from enforcement action by the Council. Officers researched the land’s ownership to determine the resurfaced area leading to the access was not on common land. They took account of their policy and national government guidance when reaching their decision that the development 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 about the access and the resurfacing works.
9. There is not enough evidence of fault in the Council’s decision‑making process here leading to their enforcement decision to justify us investigating. We recognise Mr X may consider the Council’s decision is wrong. But it is not fault for a council to properly make a decision with which someone disagrees.
10. Even if there has been fault in the Council’s enforcement process, we will not investigate. Mr X says he has safety concerns related to the resurfaced access. He says drivers using his driveway as a passing place may hit his vehicles there or be a risk to his visiting grandchildren. Mr X does not say there have been any incidents involving traffic using the access on his land. We cannot consider speculative injustices based on people’s concerns about what might happen. Mr X also says he has been caused injustice from not being able to make representations on a planning application for the development. But that is not a significant personal injustice, particularly in the context of the other speculative impacts on him and his property from the development, to warrant us investigating. There is insufficient significant personal injustice to Mr X stemming from the matters complained of to justify an investigation.
11. The outcome Mr X wants from his complaint is for the Council to pursue a planning application from the owner of the access. We cannot order councils to pursue someone for a planning application. Even if we were able to make such an order, this would not mean the Council would secure an application, because councils do not have powers to force someone to submit one to them. That we cannot achieve the outcome Mr X seeks is a further reason why we will not investigate here.
12. We note the Council’s response to Mr X’s complaint to officers says it has an ongoing enforcement investigation into uses of the land reached by the access. Enforcement based on land use is a separate matter from that related to the access resurfacing issue. We cannot intervene in the Council’s ongoing enforcement case. If the Council makes a decision on the land use issue in future with which Mr X disagrees, this would be a new complaint he would need to make to the Council first before raising it with us.

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Final decision

13. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s planning enforcement process to warrant us investigating; and
• there is insufficient significant personal injustice caused by the matters complained of to justify an investigation; and
• we cannot achieve the outcome Mr X wants.

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Investigator's decision on behalf of the Ombudsman