Summary: We will not investigate Mr X’s complaint about a planning enforcement investigation, access to records and the progress of a related enforcement case. There is insufficient evidence of fault and an investigation would not lead to a worthwhile outcome. The Information Commissioner’s Office is better placed to consider a complaint about access to information.

The complaint

1. Mr X complains the Council failed to properly investigate before commencing enforcement action against him for unauthorised development outside his residential curtilage. He says the matter has caused him distress and financial loss. He wants the Council to review its decision-making, disclose records and conclude a related, ongoing enforcement investigation.

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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, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), section 34(B))

3. We 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)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Councils can take enforcement action if they find a breach of planning rules. This is discretionary; it is up to the council whether to take action and what action to take. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
7. The Council decided Mr X had developed land which was outside his residential curtilage. It advised him this was a breach of planning rules and that the development required planning permission. It provided him with informal advice indicating that due to relevant planning conditions, the Council was unlikely to grant retrospective permission. It invited him to submit a retrospective planning application so it could consider the matter further. Mr X chose not to submit a planning application but to remove the development instead.
8. We will not investigate this complaint. The Council was entitled to exercise its professional judgement when assessing whether a breach of planning control existed and what action to take in response. It was Mr X’s choice to remove the development rather than submit a retrospective planning application. There is not enough evidence of fault in the Council’s decision-making to justify an investigation.
9. If Mr X wants the Council to disclose records from its enforcement investigation to him, it is open to him to request this. If he is unhappy with the Council’s response, he can complain to the Information Commissioner’s Office (ICO). The ICO considers complaints about access to information and information rights and is better placed to consider this matter.
10. We will also not investigate the Council’s handling of a related enforcement matter. The Council has explained why it considers the related case to be low priority and that it will address it in due course. We could not require the Council to prioritise this matter as Mr X wants. There is insufficient evidence of fault and an investigation would not lead to a different outcome.

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Final decision

11. We will not investigate Mr X’s complaint because there is insufficient evidence of fault, an investigation would not lead to a different outcome and the Information Commissioner’s Office is better place to consider a complaint about access to information.

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Investigator's decision on behalf of the Ombudsman