Summary: We will not investigate this complaint about the Council’s decision to take enforcement action against a breach of planning control. We have not seen enough evidence of fault in the way the Council made its’ decision.

The complaint

1. Mr X complains about the Council’s decision not to take enforcement action on a breach of planning control near his home.

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The Ombudsman’s role and powers

2. We 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. We do not start or continue 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))

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How I considered this complaint

3. I considered information provided by Mr X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. I understand Mr X disagrees with the Council’s decision that there is no breach of planning control at a site near his home. He says the Council has not applied the law correctly.
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. Nor is it our role to adjudicate on disputed points of law.
7. Councils can act 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.
8. In this case the Council served an Enforcement Notice on the operator of the site near Mr X’s home. Following a site visit, enforcement officers noted the Enforcement Notice had not been complied with. They referred the case to the Council’s legal team to decide whether to prosecute the operator.
9. The Council confirms that its legal team did not consider the Council can make a convincing argument that the terms of the Enforcement Notice have been breached. Following a site visit and receipt of legal advice, the Council decided there is no breach of planning control on the site. This is because the items that remain on the site which are the cause of Mr X’s complaint, were not mentioned in the Enforcement Notice. The Council says this means the items have in effect become lawful by default.
10. Mr X disagrees with the Council’s decision.
11. It is not our role to ask whether an organisation could have done things better, or whether we agree or disagree with its interpretation of the law. Instead, we look at whether there was fault in how it made its decisions. 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
12. I consider there is insufficient evidence of fault in the way the Council reached its decision. Therefore, we will not start an investigation. It has inspected the site, sought legal advice and explained why has decided there is no breach of planning control.

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Final decision

13. We will not investigate Mr X’s complaint because we have not seen enough evidence of fault in the way the Council decided there is no breach of planning control on the site.

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Investigator's decision on behalf of the Ombudsman