Summary: We will not investigate this complaint about the Council delaying in investigating an alleged breach of planning control. There is insufficient evidence of fault in the way the Council reached its final decision on the enforcement case, and its apology for the delay in concluding the matter was an appropriate way to address that part of the complaint.

The complaint

1. Mr X complains the Council delayed in investigating his report that a neighbour had raised the ground level next to a fence, which meant it was unable to reach a definitive conclusion on whether a breach of planning control had occurred.
2. Mr X says the raised area has devalued his property and destroyed his privacy.

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The Ombudsman’s role and powers

3. 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
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation, or
• we are satisfied with the action the Council has already taken in response to the complaint.

(Local Government Act 1974, section 24A(6) & (7), as amended, section 34(B))

4. 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)

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How I considered this complaint

5. I considered information provided by Mr X and the Council, which included their complaint correspondence.
6. I also considered the Ombudsman’s Assessment Code.

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My assessment

7. I appreciate Mr X is unhappy about the raised area next to his boundary fence, and the time it has taken for the Council to reach a decision on the enforcement case.
8. 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 the Council has 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.
9. 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 response to the breach. In other words, 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.
10. The Council has visited Mr X and considered the photographs/evidence he has submitted, as well as contacting the neighbour. It has explained to Mr X that even if it was satisfied a breach of planning control had occurred, it would not be expedient to pursue enforcement action due to the limited size of the area in question, and that it is no higher than the adjoining steps/land. This is a professional judgement the Council was entitled to reach, even if Mr X disagrees with the conclusion reached.
11. The Council has also acknowledged the enforcement case was unacceptably protracted and has apologised for this. I am satisfied this was an appropriate way to address this part of the complaint.

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Final decision

12. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the way the Council reached its expediency decision, and its apology was a satisfactory way to address the delay in reaching that final decision on the case.

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Investigator's decision on behalf of the Ombudsman