Summary: We will not investigate Ms B’s complaint that the Council refused to deal with her complaint about a developer’s infringement onto a right of way and failed to accept the developer submitted the planning application without the correct certificate. This is because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, Ms B, complained that the Council refused to deal with her complaint about a developer’s infringement onto a right of way and failed to accept the developer submitted the planning application without the correct certificate.

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The Ombudsman’s role and powers

2. We 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
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

3. 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)

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How I considered this complaint

4. I have considered the information Ms B provided and the planning officer’s report on the most recent planning application. I have given Ms B an opportunity to comment on my draft decision.

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What I found

5. We have previously considered a complaint from Ms B that the Council granted planning permission for a development even though it includes land which does not belong to the developer. Ms B said the developer did not declare this when he applied for planning permission and so the application should be void. In our decision we said land ownership or land disputes are not something the Council can take into account when granting planning permission. If a developer or builder attempts to build on land they do not own then it is open to the owner of the land to take action in the courts. We would not look again at matters we have previously considered and decided.
6. During 2020 the developer made an application to the Council for a variation of the original planning permission. Ms B submitted a surveyor’s drawing, title deeds and plans to support her belief that the new development would encroach on a right of way. The Council has considered this information. It told Ms B its view was the surveyor’s drawing, of itself, did not prove the existence of a right of way or indicate ownership of the land. The Council said the title deeds did show a right of way but this did not convey ownership of the land. The Council explained it relies on the accuracy of certificates applicants have provided and, in the absence of evidence the application was invalid, it had to determine it.
7. The planning officer’s report to the planning committee on the recent variation application summarises the representations the Council had received. It refers to the disputed validity of the applicant’s certificate but said no evidence had been provided to demonstrate the applicant did not own all the land within the application site. The report said the right of way issue was a civil matter and not a matter to consider as part of its assessment of a planning application.
8. Ms B told us she cannot understand why the Council did not accept the evidence provided. Our role is to consider how the Council reached its decisions. In this case the Council has considered the evidence Ms B provided. It has explained that evidence of the existence of the right of way is not the same as evidence of ownership of the land. The right of way was not something the Council could consider as part of the planning application process. There is insufficient evidence of fault in the way the Council has dealt with the matter.

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Final decision

9. We will not investigate this complaint. This is because there is insufficient evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman