Summary: We will not investigate this complaint about how the Council dealt with planning applications and unauthorised works. This is because parts of the complaint are outside the Ombudsman’s jurisdiction. It is unlikely we would find fault with the remaining issues complained about.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about how the Council dealt with his planning application and his application for a Certificate of Lawfulness of Existing Use or Development (CLEUD).
2. Mr X has also complained the Council has not looked into his concerns about unauthorised works by his neighbour and dust and construction waste at his neighbour’s property.

Back to top

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 cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
6. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

7. 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
• the injustice is not significant enough to justify our involvement.

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

Back to top

How I considered this complaint

8. I have considered Mr X’s complaint and the Council’s responses. I invited Mr X to comment on a draft of this decision and have considered his comments in response.

Back to top

What I found

9. When a local authority receives a planning application it must look at the development plan and material planning considerations to decide if the proposal is acceptable. It is for the decision maker to decide the weight to be given to any material considerations in determining a planning application.
10. The Town and Country Planning Act enables a person to ascertain if an existing use of a building or land is lawful. A development can be certified as lawful if there has been no breach of planning control or if the time to take enforcement action has expired. If the council is provided with information to show the lawfulness of the use, it must issue a certificate to that effect. If a person disagrees with a decision to refuse their planning application or CLEUD they have the right to appeal to the Planning Inspectorate.

What happened

11. An enforcement officer from the Council visited Mr X as it had received reports about the unauthorised use of an outbuilding. Following this, Mr X made a retrospective application to regularise the use of the building. The Council considered the application and refused planning permission due to the impact on the area. It also said the outbuilding was not ancillary to the main dwelling. Mr X appealed to the Planning Inspectorate. The appeal was allowed, and planning permission granted.
12. Before Mr X’s appeal was decided he submitted a CLEUD application for the use of the outbuilding. The Council refused the application as it said it had insufficient information to show the building had been used as a separate residential house for the last four years.
13. Mr X has complained about how the Council has dealt with the applications. He disputes the Council’s reasons for refusing the applications. He says it failed to properly communicate with him or advise him regarding the additional information needed for the applications. Mr X also says the Council published offensive comments made by his neighbour on its website.
14. Mr X has complained his neighbour has carried out unauthorised works to trees and says the Council has failed to look into his concerns about dust and construction waste at his neighbour’s property.

Assessment

15. I will not investigate this complaint about how the Council dealt with Mr X’s planning applications. This is because the complaint is outside of the Ombudsman’s jurisdiction. It is unlikely I would find fault with the remaining issues complained about.
16. Mr X has complained about how the Council dealt with his planning application. But he has already used his right to appeal to the Planning Inspectorate. The Ombudsman cannot investigate when someone has appealed to the Planning Inspector, even if the appeal does not provide a remedy for all the issues complained about.
17. Mr X is unhappy with how the Council dealt with his CLEUD application. He says the Council encouraged him to make the application even though it knew it would not be successful. He says he has incurred unnecessary costs as a result. However, the Council would not have been able to determine the application until it assessed the details. It would also have been reasonable for Mr X to have used his right of appeal to the Planning Inspector if he was unhappy with the Council’s decision to refuse the CLEUD application. The Ombudsman will not normally investigate a complaint when someone had an appeal right.
18. Mr X has also raised concerns about unauthorised works to trees in his neighbour’s garden. The Council has said it is looking into Mr X’s concerns. As its investigation is ongoing it is not yet possible to say if Mr X has suffered any injustice in this regard as the Council may decide there has not been a breach or that further action is not necessary.
19. Mr X has complained the Council published offensive comments from his neighbour it is website. However, I cannot say Mr X was caused any significant injustice in this regard as the comments were removed once he complained.
20. The Council has looked into Mr X’s concerns about dust and construction waste. Environmental health officers visited the site but did not find evidence of a statutory nuisance. As the Council properly looked into Mr X’s concerns it is unlikely I could find fault in this regard.

Back to top

Final decision

21. I will not investigate this complaint. This is because parts of the complaint are outside the Ombudsman’s jurisdiction. It is unlikely we would find fault with the remaining issues complained about.

Back to top

Investigator's decision on behalf of the Ombudsman