Summary: We will not investigate this complaint about the Council deciding not to take enforcement action against a breach of planning control. There is insufficient evidence of fault in the way the Council reached its decision, and any personal injustice caused to the complaint is not significant enough to justify our continued involvement in the matter.

The complaint

1. Mr X complains the Council has decided not to take planning enforcement action in relation to a new dwelling containing four bedrooms instead of the three shown on the approved plans.

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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
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, 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. And in relation to the second and third bullet points, our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the organisation. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures.
5. We target our limited investigation resources not based on points of principle, but instead on where we will have the most impact to remedy significant personal injustices caused to complainants.

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How I considered this complaint

6. I considered:
• information provided by Mr X.
• information about the planning application, as available on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

7. I appreciate Mr X is very unhappy the Council has decided it is not expedient to take planning enforcement action against the breach of planning control.
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 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.
9. 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. 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.
10. I consider there is insufficient evidence of fault in the way the Council reached its decision on the expediency of taking enforcement action, so the Ombudsman will not start an investigation. It has explained the external appearance of the building is no different to what was approved, and the additional bedroom does not cause any material planning harm . As such, it was not deemed expedient to enforce against this technical breach of the planning permission.
11. And, with reference to paragraphs 2, 4 and 5 above, I am not persuaded Mr X is directly caused a tangible and significant personal injustice by the Council’s decision. So, we would not start an investigation for this reason too.

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Final decision

12. We will not investigate Mr X’s complaint because there is insufficient evidence of fault by the Council causing him a significant personal injustice.

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Investigator's decision on behalf of the Ombudsman