Summary: We will not investigate this complaint about the Council’s handling of a planning enforcement case and the subsequent complaint process. There is insufficient evidence of fault in the way the Council reached its decision on the case, and the Council has provided a satisfactory response to the other issues raised.

The complaint

1. Mr X complains the Council has decided not to pursue further enforcement action, including the submission of a retrospective planning application, against a breach of planning control at a neighbouring property. He also complains the Council failed to inform him of its decision on the enforcement case, and delayed in responding to his associated complaint.

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The Ombudsman’s role and powers

2. 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
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation, or
• we are satisfied with the action the Council has taken or proposed to take.

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

3. 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)
4. And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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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.
• Mr X’s comments on an earlier version of this statement.
• the Ombudsman’s Assessment Code.

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My assessment

6. I appreciate Mr X is very unhappy the Council has decided it is not expedient to pursue formal planning enforcement action or the submission of a retrospective planning application, in relation to this breach of planning control.
7. 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 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.
8. With regard to planning enforcement, Councils can take 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. Councils may therefore decide to take informal action, or not to act at all. 
9. Here, the Council visited the site, consulted its heritage team, and provided pre‑application advice to the neighbour. It has explained to Mr X that it does not consider it expedient to pursue further action (which would include pursuing the submission of an application), because the breach of planning control causes insufficient planning harm. That is a professional judgement the Council was entitled to reach. The Ombudsman will not start an investigation into that decision, because there is not enough evidence of fault in the way it was made.
10. The Council has apologised for failing to inform Mr X if its decision on the enforcement case. That was a satisfactory way to address this part of the complaint.
11. The Council has also apologised for the delay Mr X experienced during the complaint process. Again, this is a reasonable way to address that part of the complaint. Furthermore, and with reference to paragraph 4 above, we would not pursue Mr X’s concerns about the complaint process in isolation, when we have decided not to investigate the Council’s handling of the underlying planning enforcement case.

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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 decision on the planning enforcement case.
• the Council has taken satisfactory action to address its failure to provide an update on the enforcement case, and the delay in the subsequent complaint process.

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Investigator's decision on behalf of the Ombudsman