Summary: We will not investigate this complaint about how the Council dealt with a breach of planning control. This is because we cannot yet say if the complainant has suffered significant injustice because of the alleged fault.

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. He says there have been delays and the ongoing unauthorised use of the building is causing him distress and impacting his enjoyment of his home.

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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 fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

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

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How I considered this complaint

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

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My assessment

4. 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 or changed the use of a building without permission. 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 affective enforcement action to maintain public confidence in the planning system but says councils should act proportionately. Informal action can often be the quickest and most cost-effective way of achieving a satisfactory result. The council may also request a retrospective application to regularise the situation. However, if the development is considered unacceptable, it may be necessary to take other action to secure compliance such as serving a breach of condition or enforcement notice.
5. After Mr X contacted the Council about the possible breach, it wrote to his neighbour and invited them to make a retrospective planning application to regularise the use of the building within 28 days. There were delays before a valid application was submitted and Mr X says the Council should have taken enforcement action after 28 days. But councils do not need to take formal enforcement action just because there has been a breach of planning control and it was entitled to decide to wait for the retrospective application.
6. Furthermore, the Ombudsman must be satisfied that an injustice has been caused by the alleged fault. In this case, the Council has not yet determined the retrospective application. However, if it does decide to grant planning permission it would mean the use of the building as a business was authorised and the Council could take no action in relation to the breach. Therefore, Mr X would not have been caused significant injustice because of any delays. If the Council refuses planning permission, it can then consider if enforcement action is appropriate.
7. As the planning application is still pending, I do not consider an investigation could determine, at this stage, if Mr X has suffered any significant injustice from the alleged fault. Mr X can make a new complaint once the planning process has been completed if he remains unhappy with the Council’s actions.
8. 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.

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Final decision

9. We will not investigate Mr X’s complaint because we cannot yet say if he has been caused significant injustice because of the alleged fault.

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Investigator's decision on behalf of the Ombudsman