Summary: We will not investigate Mr X’s complaint about the Council’s decision not to take planning enforcement action against his neighbour and how it dealt with his complaint. There is not enough evidence of Council fault in its planning decision to warrant us investigating. We cannot achieve the key outcome Mr X seeks. We do not investigate councils’ complaint handling where we are not investigating the core issue giving rise to the complaint.

The complaint

1. Mr X lives in an upper floor flat. A neighbour on the ground floor has put items in their back garden which require planning permission. Mr X complains the Council:
1. has dismissed his concerns by deciding not to take planning enforcement action against his neighbour;
2. failed to visit the property when making its decision;
3. incorrectly initially told him in its complaint response that there was no planning breach;
4. failed to meet its own complaints process timescales.
2. Mr X wants the Council to:

• make the neighbour follow the relevant laws and regulations;
• write to the neighbour advising them they have broken planning guidelines and should consider removing the items;
• apologise to him;
• add a disclaimer to its online planning tool that officers have discretion on whether to use enforcement powers;
• put more effort into reviewing planning complaints that are in the public interest.

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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 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
• 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, 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 decision where there is evidence of fault in the decision-making process and but for that fault a different decision would have been made. So we consider the process they have followed to make their decision. We cannot replace a decision with our own or someone else’s opinion if the decision was reached after following proper process.
7. In response to Mr X’s concerns about the items in his neighbour’s garden, the Council considered the information he provided. An officer initially took the view there was no planning breach, that the items did not require planning permission. Later in the complaint process a different officer reassessed the information and photographs of the site and considered its location. That officer determined some of the items did require planning permission. They decided that while there was a planning breach, it was not expedient for the Council to use its enforcement powers. The officer determined there was limited public visibility of the site due to its location, so the Council using its resources on enforcement would not be in the public interest.
8. There is a duty on councils to investigate reports of planning breaches. If they find a breach, it is for officers to decide what action to take, including whether to enforce. There is no duty on councils to use their planning enforcement powers on every breach. Officers have discretion on whether to use those powers.
9. There is not enough evidence of Council fault here to warrant us investigating. We note Mr X says officers did not visit the site. It is for officers to determine what information they need to inform their investigation of a report of a breach. Officers noted the location of Mr X’s neighbour’s garden and received evidence of what was there from Mr X’s photographs from his property’s windows. It is unlikely any additional information to inform their decision would have been gained from a visit. We cannot say it was fault for the Council not to visit where its officers considered they had enough information to make their final enforcement decision.
10. Officers took account of the relevant information when making their decision. We recognise Mr X disagrees with the Council’s position and wants officers to take further action. But it is not fault for a council to properly make a decision with which someone disagrees.
11. We note Mr X considers enforcement would be in the public interest because he is a member of the public. But the Council’s consideration of whether action is in the public interest is an assessment of the impact of a breach on all residents in its area, not one or a small number of residents. It is for officers to decide whether a planning breach has such impact on that wider public to justify enforcement. Planning breaches in prominent locations and those visible from streets or other public areas would be most likely to attract enforcement. Officers determined the location of the neighbour’s items in the back garden meant there was insufficient impact on the wider public to warrant enforcement. That is a professional judgement decision officers were entitled to make.
12. The core outcome Mr X seeks from his complaint is for his neighbour to be required to comply with planning laws and regulations. We may only make recommendations to councils. We cannot order them to use their discretionary planning enforcement powers. That we cannot achieve the core practical outcome Mr X seeks from his complaint is a further reason why we will not investigate.
13. Mr X complains about delays and errors in the Council’s complaint process. The Council has acknowledged and apologised for its first response to his complaint and the time officers took to respond. In any event, we do not investigate councils’ complaint handling in isolation where we are not investigating the core issues giving rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this aspect of the complaint.

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Final decision

14. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s enforcement decision-making process to warrant us investigating; and
• we cannot achieve the key planning enforcement outcome he seeks; and
• we do not investigate councils’ complaint handling where we are not investigating the core issues giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman