Summary: Mr X complains the Council has treated him poorly about a breach of planning control on his neighbour’s property. The Ombudsman will not investigate this complaint. The alleged breach of planning control occurred in 2017 and it is too late to complain to the Ombudsman now. Complaints about failure to respond to requests for information have already been considered by the Information Commissioner’s Office.

The complaint

1. Mr X complains the Council:
• Refuses to take enforcement action against his neighbour for a breach of planning control; and
• Repeatedly failed to respond to requests for information, forcing him to complain to the Information Commissioner’s Office (ICO).

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
5. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A (6), as amended)

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How I considered this complaint

6. I considered the information provided by Mr X and discussed his complaint with him.

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What I found

7. In 2017, Mr X complained to the Council that his neighbour had erected a building in his garden that is too high, breaching planning control.
8. Several officers have visited the neighbour and taken different measurements. From the information I have seen I understand the Council accepts the building exceeds the permitted height by 20cms and asked the neighbour to reduce the height.
9. Mr X says the neighbour has made some changes, but the building remains too high. He says the Council advised it would not take further action as the breach did not adversely affect Mr X.
10. Mr X has been in contact with the Council on this matter since 2017, trying to persuade it to take enforcement action. He has sought information which the Council has failed to provide. He has complained to the ICO.
11. The ICO investigated Mr X’s complaints and ruled the Council had failed to comply with the terms of the Environmental Information Regulations (EIRs). However, she did not require the Council to take further action.

Assessment

12. I discussed the complaint with Mr X. I explained where the complaint concerns failures to respond requests for information, we usually expect the complainant to refer the matter to the ICO. This is the body set up by Parliament to consider complaints about access to information and data protection. In this case, the ICO has already considered Mr X’s concerns.
13. I understand Mr X believes the Ombudsman should consider his complaint because the ICO only considered the access to information issues. He wants the Ombudsman to look at the Council’s behaviour, which he says forced him to complain to the ICO in the first place.
14. The ICO is the body with expertise in this area. Having reviewed the information and discussed the matter with Mr X, I do not believe that any investigation by the Ombudsman on this point would lead to a different outcome.
15. During my discussion with him, Mr X confirmed his main concern is the fact his neighbour’s garden building breaches planning control. He believes the Council should enforce the planning regulations.
16. The law says a complaint must be made to the Ombudsman with 12 months of the cause of the complaint being identified. Mr X reported the breach of planning control in 2017. Therefore, this part of the complaint is late.
17. I must consider whether there is good reason to exercise discretion and investigate this late complaint.
18. Mr X is aware the Council has decided not to take enforcement action and actively sought information about this over the last three years. I see no reason why he could not have complained to the Ombudsman about this much sooner.
19. Planning 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 or use.
20. Mr X told me he is not adversely affected by his neighbour’s garden building exceeding the permitted height by approximately 20cms. He confirmed his concern is the fact the breach exists. The Council has measured the building and is satisfied it is not causing harm to Mr X’s amenity and decided not to take enforcement action. This is a decision it is entitled to take.
21. Having reviewed the information available, I do not consider there is any good reason to exercise discretion and investigate this late complaint.

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Final decision

22. I will not investigate this complaint. The ICO has already considered his concerns about failures to provide requested information. It is unlikely that further investigation of this matter will lead to a different outcome.
23. Having considered the information detailed in paragraphs 19 to 21 above, I will not investigate Mr X’s concerns about the breach of planning control.

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Investigator's decision on behalf of the Ombudsman