Summary: We will not investigate this complaint about how the Council dealt with breaches of planning control and a possible statutory nuisance. This is because part of the complaint is late. We are unlikely to find fault in relation to the complainant’s concerns about how the Council considered noise issues. The Complainant has not suffered significant injustice in relation to the remaining issues complained about.

The complaint

1. Ms X has complained about how the Council has dealt with breaches of planning control and noise disturbances from a restaurant next to her home. Ms X says the unauthorised developments and activities at the restaurant significantly impact her property and her family’s health and wellbeing.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(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 provided by Ms X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms X has complained about how the Council dealt with her complaint about an unauthorised extraction unit installed at the neighbouring property. However, I consider Ms X’s complaint about this matter late. A complaint is late if it has taken someone more than 12 months to complain to the Ombudsman. It has been more than a year since Ms X reported the possible breach. The Council investigated her concerns at the time and has explained why it would not take formal enforcement action. I see no good reason to exercise discretion to investigate as Ms X could have complained to the Ombudsman sooner.
8. I have considered the recent possible breaches Ms X has reported to the Council. 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. Councils do not need to take enforcement action just because there has been a breach.
9. In this case, the Council explained planning permission was not needed for internal changes made to the property. Its investigation regarding the other potential breaches is ongoing. Therefore, it is not yet possible to say if Ms X has suffered any significant injustice because of any fault with the Council’s enforcement investigation. The Council may still decide there has not been a breach or that formal action is not necessary. Ms X can return to the Ombudsman and make a new complaint if she remains unhappy once the enforcement investigation has concluded.
10. Ms X has also complained about noise disturbances from the site and says this has a significant impact on her property. But I am satisfied the Council has properly considered Ms X’s concerns. It has carried out site visits and monitoring and explained why the noise does not amount to a statutory nuisance. As the Council properly considered Ms X’s concerns about noise from the site, it is unlikely I would find fault.

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Final decision

11. We will not investigate Ms X’s complaint because part of the complaint is late. It is unlikely we would find fault with how the Council dealt with Ms X’s concerns about noise disturbance. It is not yet possible to say if Ms X has suffered significant injustice because of any fault with the Council’s recent enforcement investigation.

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Investigator's decision on behalf of the Ombudsman