Summary: We will not investigate this complaint about differences in the Council’s handling of a planning enforcement matter at the complainant’s property in comparison to other sites in the area. The complainant either has used, or it would be reasonable for her to have used, the right of appeal to the Planning Inspectorate, and there is insufficient evidence of fault in relation to the Council’s handling of enforcement issues at other sites.

The complaint

1. Mrs X complains the Council failed to apply its planning enforcement powers fairly, consistently, or proportionately, as it has pursued planning enforcement action against gates/fencing erected at her property, yet it has not done so in relation to similar works at other properties in the area.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. In that regard, 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)
5. We also cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister, and can consider appeals against a decision to refuse planning permission, or to issue a planning enforcement notice. (Local Government Act 1974, section 26(6)(b), as amended)
6. And we cannot normally investigate a complaint when someone could have appealed to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to have appealed. (Local Government Act 1974, section 26(6)(b), as amended)

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How I considered this complaint

7. I considered:
• information provided by Mrs X and the Council, which included the Council’s complaint responses and information about the enforcement case.
• information about Mrs X’s planning application to retain the gates, as available on the Council’s website.
• the Council’s ‘Planning Enforcement Plan’.
• the Ombudsman’s Assessment Code.

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My assessment

8. Mrs X appealed to the Planning Inspectorate against the refusal of her application to retain the gates/fence. With reference to paragraph 5 above, we therefore cannot investigate any parts of the complaint about the decision on that application.
9. It also seems reasonable to expect Mrs X to have appealed against the subsequent enforcement notice if she felt it was not properly served, or the actions required to achieve compliance were excessive, or the compliance period was too short. So, with reference to paragraph 6 above, we would not start an investigation into this part of the complaint either.
10. And in relation to the other examples of gates/fences highlighted by Mrs X, I consider there is insufficient of fault by the Council. In reaching this view, I am mindful that:
• each case must be considered on its own merits, taking into account the individual circumstances/context of the site and surrounding area. Officers are entitled to use their professional judgement to decide whether the impact of a particular development is acceptable or not.
• the Council’s complaint responses provide a detailed explanation of the planning status of each case and the reasons for its decisions.

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Final decision

11. We will not investigate Mrs X’s complaint because she either has used, or it would be reasonable for her to have used, the right of appeal to the Planning Inspectorate, and there is insufficient evidence of fault in relation to its handling of enforcement matters at other sites.

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Investigator's decision on behalf of the Ombudsman