Summary: Mr X complained about the Council’s failure to make planning and enforcement decisions in relation to a site near his home. We did not investigate this complaint further as it is unlikely to result in a meaningful outcome.

The complaint

1. Mr X complained about the Council’s failure to make planning decisions within a reasonable time and to decide whether to take enforcement action in relation to a breach of planning control that he had reported.
2. Mr X also complained that the Council did not provide all the information he had asked for in a freedom of information request.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We must also consider whether any alleged 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint or part of this complaint.

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

5. 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 matters, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

6. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
7. I gave Mr X and the Council an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
13. This may happen where:
• the Council has already granted planning permission for the use or development;
• a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.
14. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it should consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.

What happened

15. Mr X lives across the road from a building that was used for commercial purposes. In 2019, the Council received a planning application to demolish the building and build a mixed use replacement, including a restaurant, and office and residential units.
16. In 2020, the developer also applied for a certificate of lawful use to confirm that the existing building could be used as a restaurant.
17. Mr X’s house is about 25 metres from the nearest part of the existing building, which is across a main road, but not directly facing him. He objected to both applications and sought legal advice, which he shared with the Council. Mr X said that the proposed development would be unlawful if allowed under either application.
18. Mr X also complained to the Council that there had been a breach of planning control at the rear of the site, further away from Mr X’s home. Mr X said he has a right to pass over this land and structures on it made it difficult for him to do so.
19. Mr X said he is unhappy because the planning and certificate of lawfulness applications have not yet been determined and the Council has not decided his allegation that there was a breach of control at the rear of the site.
20. The Council has told me:
• the planning application is due to go to the next planning committee;
• it recently refused the certificate of lawfulness application;
• its planning enforcement officer has already sent an email to Mr X explaining why it considered there was no breach of planning control on the site. The Council sent me a copy of this email.

My findings

21. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
22. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
23. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
24. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
25. I should not investigate this complaint further and my reasons are as follows:
• Mr X lives a significant distance from the site, which is across a main road from his home and offset at an angle. The Council has not yet made its decision on the planning application but even if it was to approve it, and we were to find fault in its decision making, I think it is unlikely that we would find that any such fault would cause a significant injustice to Mr X that would require a remedy for him.
• The Council has refused the certificate of lawfulness application, which was the outcome Mr X wanted;
• The Council’s email shows that the Council was aware of Mr X’s allegation, had considered its powers and decided there was no breach of planning control. This is the decision-making process we expect and so it is unlikely we would find fault.
• Mr X can take his complaint about his freedom of information request to the Information Commissioner's office, which is better placed to deal with this issue.

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Final decision

26. I ended my investigation as it is unlikely to result in a meaningful outcome.

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Investigator's decision on behalf of the Ombudsman