Summary: We will not investigate this complaint about how the Council dealt with a breach of planning control. This is because we are unlikely to find fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about how the Council dealt with a breach of planning control and its decision not to take formal enforcement action. He says the Council has given him contradictory advice and failed to answer his questions. Mr X also says there were delays and the Council has not considered the impact the unauthorised building will have.

Back to top

The Ombudsman’s role and powers

2. 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, or
• any injustice is not significant enough to justify our involvement.

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

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)

Back to top

How I considered this complaint

4. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

Back to top

My assessment

5. Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission or not complied with a planning condition. However, it is for the Council to decide if there has been a breach of planning control and if it is expedient to take further action. Government guidance stresses the importance of effective enforcement action to maintain public confidence in the planning system but says councils should act proportionately.
6. In this case, I am satisfied the Council properly considered Mr X’s concerns about the unauthorised development before deciding not to take enforcement action. The case officer visited the site, took measurements and found the building was only slightly higher than allowed using permitted development rights. The Council also decided the building would not cause harmful overlooking. Therefore, it decided it would not be expedient or in the public interest to take formal action.
7. I understand Mr X disagrees and says the Council did not properly consider the building’s impact and it should enforce against planning breaches. However, the Council does not need to take formal action just because there has been a breach of planning control and it was entitled to use its professional judgement to decide it would not be expedient to take enforcement action. The Ombudsman cannot question this decision unless it was tainted by fault. As the Council properly considered if enforcement action was necessary it is unlikely I would find fault.
8. Mr X has also complained there was a delay before the Council looked into his concerns and visited the site. He says this led to it initially closing the case as it wrongly believed the building was allowed under permitted development rights. The Council says it was unable to carry out a site visit when Mr X first reported the breach due to Covid-19 restrictions. Instead, it contacted the developer to request further information. However, even if I were to say there was fault by the Council in this regard, I cannot say Mr X has been caused any significant injustice by any delays as the Council ultimately decided not to take enforcement action.
9. Mr X has also complained about the Council’s complaint handling. However, where the Ombudsman has decided not to investigate the substantive issues complained about, we will not usually use public resources to consider more minor issues such as complaint handling.

Back to top

Final decision

10. We will not investigate Mr X’s complaint because we are unlikely to find fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman