Summary: We will not investigate this complaint about the Council deciding not to take planning enforcement action against a raised structure built at a property next to the complainant. There is insufficient evidence of fault in the way the Council reached its planning enforcement decision, and an investigation by the Ombudsman will not change that outcome.

The complaint

1. Mr X complains the Council has failed to act lawfully or proportionately when deciding not to take planning enforcement action against a raised structure built at a neighbouring property. He says the Council has ignored the severe impact on his privacy, dignity and wellbeing as a severely disabled person, and feels the situation breaches the Equality Act and his Human Rights, as well as the Council’s duty to protect vulnerable residents.

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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.

(Local Government Act 1974, section 24A(6), 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. The Ombudsman also cannot decide if an organisation has breached the Human Rights and/or Equality Acts as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of a person’s rights in its treatment of them. Organisations will often be able to show they have properly taken account of the Acts if they have considered the impact their decisions will have on the individuals affected.

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How I considered this complaint

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

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My assessment

6. I appreciate Mr X is very unhappy about the Council’s decision not to take planning enforcement action against the 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 decision. If we decide there is insufficient evidence of 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. In that regard, 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 and expedient response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public interest and whether they might grant approval if they were to receive an application for the development or use.
9. I consider there is insufficient evidence of fault in the way the Council reached its planning enforcement decision, and the Ombudsman’s continued involved would not achieve a different outcome. So, we will not start an investigation. In reaching this view, I am mindful that the Council:
• visited the neighbouring property and considered the distance and views between the structure and Mr X’s windows.
• considered whether the structure complies with its planning policies.
• cannot take the personal/unique circumstances of the complainant into account when deciding whether to pursue planning enforcement action.
• was entitled to reach its own professional judgement on the extent of the impact on Mr X’s general residential amenity, even if he disagrees with the conclusion reached. With reference to paragraph 4 above, I am satisfied the Council has properly considered the impact the unauthorised development has on Mr X.

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Final decision

10. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the way the Council reached its planning enforcement decision and we could not achieve a different planning enforcement outcome.

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Investigator's decision on behalf of the Ombudsman