Summary: The Ombudsman will not investigate this complaint that the Council has failed to uphold the law regarding highway signage. The Ombudsman is unlikely to find fault in the way the Council reached its decision not to pursue planning enforcement action, and the Council’s actions have not caused the complainant a significant injustice.

The complaint

1. The complainant, whom I refer to as Mr B, says the Council should take enforcement action against an advertisement erected on the highway, as it has not been erected in the position shown on the approved plans and is contrary to the Highways Act. Mr B says the Council’s decision not to take action is inconsistent with its decision on a separate advertisement consent application, whereby a condition requires that applicant to erect the sign on private land, instead of on highway land. Mr B believes the law should be upheld in all cases, and he questions whether anyone connected to the Council’s decision has links to the owner of the signage.
2. As a parish councillor, Mr B says he has experienced several other situations like this, and has spent much time on trying to resolve these issues.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We can investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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 we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

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

5. And we can only accept complaints from members of the public or their authorised representatives. This means we cannot accept complaints from councillors complaining about something relating to their position as a councillor. (Local Government Act 1974, section 26A, as amended)

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How I considered this complaint

6. I have considered:
• Mr B’s complaint to the Ombudsman;
• The Council’s final response to Mr B’s complaint;
• Information about the advertisement application on the Council’s website;
• Mr B’s comments on a draft version of this statement.

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What I found

Background to planning enforcement

7. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.”

(National Planning Policy Framework July 2018, paragraph 58)

and,

“Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations….

…… Nothing in this guidance should be taken as condoning a wilful breach of planning law. Enforcement action should, however, be proportionate to the breach of planning control to which it relates and taken when it is expedient to do so. Where the balance of public interest lies will vary from case to case.

In deciding, in each case, what is the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where:

• there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;”

(www.gov.uk/guidance/ensuring-effective-enforcement)

Summary of what happened

8. The Council approved an advertisement consent application. The approved plans show the sign in the corner of a private field, adjacent to the hedge/fence which runs along the boundary with the highway verge. When the sign was erected, it was positioned on the other side of the fence, on the highway verge.
9. Mr B complained to the Council, asking for the sign to be repositioned to its approved position.
10. The Council decided to take no further action. It noted the sign was erected directly next to the private land, at the back of the highway verge, and there were no line-of-sight (I take this to mean no visibility splay obstruction) issues. The encroachment onto the highway was considered to be marginal, so the Council decided it would not be a good use of its resources to engage in enforcement action.

Assessment

11. I appreciate Mr B disagrees with the Council’s decision not to pursue planning enforcement action against the sign.
12. But, as noted in paragraph 7 above, planning enforcement action is discretionary. The Council does not have to take action against every breach of planning control. Each case must be assessed on its own merits, and it was for the Council to reach its own professional judgement on this particular case. The Ombudsman cannot question the Council’s decision unless there is evidence of administrative fault in the way it was made.
13. The Council has provided planning reasons why it is not considered expedient to take action, so I find there is insufficient evidence of fault to warrant the Ombudsman investigating the planning enforcement decision.
14. I am not clear if the Council, in its separate role as the highway authority, has also reached a similar decision to take no action against any breaches of the Highways Act.
15. But even if it has, I do not see that this, or the planning enforcement decision, causes Mr B a significant personal injustice. I note Mr B says that in his role as a parish councillor he has spent time on seeking to resolve many situations like this. But, with reference to paragraph 5 above, the Ombudsman cannot consider the impact on Mr B in his capacity as a councillor. And even if Mr B was complaining as a member of the public, the sign itself does not affect him to any significant degree, so any time he has spent on pursuing the case was of his own choosing, rather than something which inevitably flowed from the Council’s actions.

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Final decision

16. The Ombudsman will not investigate Mr B’s complaint. This is because there is insufficient evidence of fault in the way the Council reached its decision not to pursue planning enforcement action, and the alleged fault does not cause Mr B a significant personal injustice.

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Investigator's decision on behalf of the Ombudsman