Summary: We will not investigate this complaint about the Council deciding not to take enforcement action against a breach of a planning condition. There is insufficient evidence of fault in the way the Council made its decision.

The complaint

1. Mr X complains the Council has failed to take enforcement action against a breach of a planning condition at a neighbouring property.

Back to top

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.

(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)

Back to top

How I considered this complaint

4. I considered:
• information provided by Mr X and the Council, which included the Council’s complaint responses.
• information about the planning applications for the site, as available on the Council’s website.
• the Council’s ‘Local Enforcement Plan’.
• the Ombudsman’s Assessment Code.

Back to top

My assessment

5. I appreciate Mr X is very unhappy about the Council’s decision not to take planning enforcement action against the breach of condition.
6. 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 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.
7. I consider there is insufficient evidence of fault in the way the Council reached its decision not to take enforcement action, so we will not start an investigation. In reaching this view I am mindful that:
• local planning authorities can take enforcement action if they find a person has breached 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. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. They should also consider the development plan and any other material considerations.
• the Council has visited the site and has explained to Mr X why it does not consider it expedient to pursue enforcement action, with particular reference to a Supplementary Planning Document adopted after the original planning permission was issued.
• each case/issue must be assessed on its own merits, taking into account the particular circumstances of the site and surrounding area. The Council is entitled to reach its own professional judgement on the whether to take action, even if Mr X disagrees with the decision reached.

Back to top

Final decision

8. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the way the Council reached its decision.

Back to top

Investigator's decision on behalf of the Ombudsman