Summary: Mr B complains about the Council’s decision not to take enforcement action against his neighbour for unauthorised development. We will not investigate this complaint. We have not seen evidence of fault which would warrant an investigation.

The complaint

1. The complainant, I shall call Mr B, says the Council refuses to take enforcement action against his neighbour for building 200 square metres (sqm) of tarmac track with inadequate drainage.
2. Mr B says by allowing the unauthorised tarmac track, the Council has left his home unprotected from damp. He also says the Council would have refused any retrospective planning application.

Back to top

The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
4. 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)

Back to top

How I considered this complaint

5. I considered:
• information provided by Mr B and the Council.
• the Ombudsman’s Assessment Code; and
• Mr X’s comments on the draft version of this decision.

Back to top

My assessment

6. Mr B reported a breach of planning control to the Council. His neighbour has replaced an unmade dirt track with 200sqm of tarmac. He said there is inadequate drainage which is causing damp in his home.
7. After an initial view that the track was permitted development; the Council sought advice and told the neighbour the track required planning permission and invited a retrospective planning application.
8. The neighbour declined to put in a valid planning application. The Council considered whether it should take enforcement action. It sought advice from its conservation team. It concluded although the materials used are not ideal, there is limited visibility from the roadside and the track is shielded from a public footpath by fencing, hedging and houses. Also, it is within a built environment and while officers would have preferred a less urban surface, the tarmac track does not cause unacceptable harm to the appearance of the conservation area.
9. Officers also consulted the Building Control Manager. He confirmed the track does not require building control approval. The Council advised Mr B the issue of damage being caused to his property is a civil matter between him and his neighbour.
10. The Council decided it is not expedient to take enforcement action.

Analysis

11. Government guidance does not say that councils must act against all unauthorised development, but a council should take action a breach is causing serious harm to local public amenity. The decisive issue for the Council is whether the breach of control would unacceptably affect public amenity or the unauthorised use of land or buildings merits protection in the public interest.
12. In this case, the Council decided not to exercise its power of planning enforcement because the tarmac track does not cause unacceptable harm to the conservation area. We may not question the merits of decisions which have been properly made. We do not comment on judgements councils make when there is no evidence of fault in the decision-making process.
13. In this case, officers invited a retrospective application which was not forthcoming. It then sought advice from the conservation team before deciding not to take further action.
14. Mr B disagrees with the decision. He says the Council has failed to follow guidance issued in a paper produced to inform the Government’s recent update to the National Planning Policy Framework (NPPF). However, I have considered the current NPPF and the current enforcement guidance issued by the Government in its Planning Practice Guidance. I have also considered the Council’s enforcement policy which specifically states that for the purposes of planning, harm does not include potential damage to property.
15. I have not seen evidence of fault by the Council in how it reached its decision not to enforce to warrant our investigation. Officers looked into the matter and took their decision based on the evidence they gathered. We cannot substitute their view with that of Mr X or the Ombudsman.

Back to top

Final decision

16. I will not investigate this complaint as I have not seen evidence of fault which warrants an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman