Summary: We will not investigate this complaint about the Council’s failure to oversee a development which allowed breaches of planning control. We have not seen enough evidence fault in the Council’s actions to justify an investigation. Nor will we investigate his complaint about a failure to provide information as it is reasonable to expect him to complain to the Information Commissioner’s Office on this matter.

The complaint

1. Mr X says the Council failed to check the building of the development of houses where he lives. He says the developer failed to build the estate according to the approved plans which should have been corrected by the Council before residents moved in.
2. Mr X also complains the Council failed to provide information he requested under the Freedom of Information Act and failed to consider his disability needs.

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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:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

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

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.

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How I considered this complaint

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

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My assessment

7. The Council admits the open space in front of Mr X’s property was originally shown on plans as a formal play area for children under five years old. A condition on the planning permission stated that “notwithstanding the submitted plans” the developer should provide details of the amenity spaces for written approval by the Council before any of the new properties were occupied.
8. However, the application to discharge the condition changed the requirement for the area outside his home from a formal play area of under-fives to a grassed area with paths, benches and litter bins. The Council approved the amended plans. This is a decision it was entitled to take.
9. The Council has explained as there are no benches or litter bins, there is a breach of planning control on the site. However, the development was finished in 2014. As more than ten years have passed the development is now immune from enforcement action.
10. I understand Mr X believes the Council failed to ensure the developer built the estate according to the approved plans. However, the Council is not required to oversee developments and the responsibility for ensuring build works adhere to approved plans lays with the developer.
11. I will not investigate this part of Mr X’s complaint as I have not seen enough evidence of fault in the Council’s actions.
12. Mr X says the Council should allow him to install a fence or barrier to prevent footballs from entering his property. The Council has confirmed permitted development rights have been removed from all properties on the estate. Therefore Mr X needs planning permission to erect a fence. It has offered to provide pre planning application advice for this. It has also advised that in cases where development is needed to secure a disabled person’s safety, health or comfort, it can waive the planning application fee.
13. Mr X says the Council has ignored the impact of the built development on him because of his disability. However, in view of the assistance it has offered I have not seen enough evidence of fault on this point.
14. Turning to Mr X’s complaint about a failure to provide information. The Information Commissioner’s Office (ICO) was set up by Parliament to deal with access to information rights. I consider it reasonable to expect Mr X to complain to the ICO about the Council’s failure to follow the requirements of the Freedom of Information Act.

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Final decision

15. We will not investigate Mr X’s complaint because:
• We have not seen enough evidence of fault in the way the Council relied on the developer to comply with the approved plans for the development where he lives.
• We have not seen enough evidence of fault in the way the Council considered his report of breaches of planning control.
• We have not seen enough evidence that the Council ignored Mr X’s disability; and

• It is reasonable to expect Mr X to complain to the ICO about a failure to provide information.

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Investigator's decision on behalf of the Ombudsman