Summary: We will not investigate the Council’s decision not to take planning enforcement action concerning works near a railway embankment. Even if there has been Council fault in the Council’s response to his complaint, the matter does not cause Mr X sufficient significant personal injustice to warrant an investigation. We also cannot achieve the outcome Mr X seeks.

The complaint

1. In short, Mr X complains the Council failed to take enforcement action against excavation works, creation of a ramp and associated issues near a railway embankment.
2. Mr X says there has been ecological and wildlife damage which has caused him distress. He wants enforcement action plus remedial action to restore the site.

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The Ombudsman’s role and powers

3. 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:

• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement; 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

4. I considered information from Mr X and the Council, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

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My assessment

5. The Council’s responses to Mr X show it considers the works as permitted development. It said it had not identified any breaches of planning control. And it said the works were subject to restoration and it was monitoring this. It also apologised for some delays in its complaints handling and partial responses. Overall, it maintained a consistent position that no breach of planning control took place.
6. We will not investigate. Planning authorities may take enforcement action where they identify a planning control breach. They are required to investigate claimed breaches, but any enforcement is discretionary. Officers have decided formal planning enforcement action is not appropriate in this case. I appreciate Mr X considers the Council should enforce, however it is for the Council’s officers to make that decision.
7. Even if there has been some fault in the Council’s responses to Mr X’s complaint this has not materially affected the core decision not to enforce so we will not investigate. Further, I have not seen any evidence that Mr X is suffering any personal injustice sufficient to justify us using public funds to investigate. While I note his distress at the ecological and wildlife impact, Mr X may highlight this issue more generally as a wider community issue by approaching his local councillor or member of parliament.
8. The outcome Mr X seeks from his complaint is for the Council to take enforcement action against the landowner. We cannot compel councils to take enforcement action. This is another reason not to investigate.

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Final decision

9. We will not investigate Mr X’s complaint because:
• even if there has been Council fault, the matter does not cause Mr X sufficient significant personal injustice to warrant an investigation; and
• we cannot achieve the outcome Mr X seeks; and

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Investigator's decision on behalf of the Ombudsman