Summary: We will not investigate this complaint about the Council’s handling of matters associated with its decision to granting planning permission for a development opposite the complainant’s property. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect the complainant to use the alternative remedies available to him, there is not enough evidence of fault in the way the Council determined the planning application, and we will not pursue concerns about the complaints process in isolation.

Summary of the complaint

1. The complainant, whom I refer to as Mr X, says there have been numerous systematic failings and deceit by the Council in the way it handled and reached its decisions on matters associated with a development opposite his property. In particular, Mr X alleges the following errors by the Council:
• Procedural impropriety (e.g. failing to lodge formal complaints or provide Freedom of Information replies; failing to substantiate claims that matters have been considered)
• Deceit/maladministration (e.g. omitting habitable rooms in its consideration of the impact of the development on light to his property; untruths told to councillors; untrue claims that an officer visited his building)
• Bias, discrimination, and prejudicial treatment (e.g. the lease plan dispute was overlooked)
• Delay in responding to correspondence
• Unprofessional responses (e.g. avoiding questions and offering lay responses)
• Incompetence (e.g. basic facts not recognised by senior officers in correspondence)

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The Ombudsman can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We 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 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, or
• we cannot achieve the outcome someone wants.

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

4. And the law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. Similarly, the law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. The Information Commissioner's Office (ICO) considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner. (Local Government Act 1974, section 26(6)(a), as amended)
6. Also, we cannot question whether an organisation’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. If there is evidence of fault then we will consider whether it affected the outcome. (Local Government Act 1974, section 34(3), as amended)
7. Finally, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue(s).

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How I considered this complaint

8. I considered information provided by Mr X and the Council, including Mr X’s comments on an earlier version of this statement. I also considered our Assessment Code, and information about the planning application on the Council’s website.

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My assessment

9. I appreciate Mr X is unhappy with the Council’s decision to grant planning permission and proceed with its development opposite his home. But I do not consider the Ombudsman should start an investigation for the reasons explained below.
10. The Ombudsman has no power to adjudicate in the dispute about how the development might affect Mr X’s private rights of way over the site, so we could not achieve an outcome for him in that respect. Rather, it would be a matter for the courts to decide. I consider it reasonable to expect Mr X to pursue a court remedy if he thinks the Council’s development will interfere with his right of way over the land.
11. Similarly, if Mr X thinks the Council has failed to properly respond to his freedom of information request(s) then, with reference to paragraph 5 above, I consider it reasonable to expect him to pursue these concerns via the ICO.
12. There is also not enough evidence to suggest fault in the way the Council determined the planning application is likely to have affected the outcome. In reaching this view, I am mindful that:
• When councils send neighbour notification letters about a planning application, these will be sent to the properties that may be affected by the development. There is no requirement to send them to alternative correspondence addresses for the occupier/owner of those properties.
• Private rights of way and the ‘right to light’ do not constitute material planning considerations, so could not have been taken into account when the Council made its decision on the application.
• Planning policies may pull in different directions, and it is for the decision maker to decide the weight to be given to any material planning consideration.
• The Highways and Waste consultees raised no objections to the proposal, subject to the use of some conditions.
• The application was supported by a ‘daylight and sunlight’ report, which was reviewed on behalf of the Council by the Building Research Establishment. Both documents consider how the development could affect levels of light entering the windows of the flats in Mr X’s building. The case officer’s report then goes on to reach a professional judgement on whether this aspect of the development was acceptable in planning terms.
• The courts have made it clear that case officer reports do not need to include every possible planning consideration, just the principal controversial issues, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material planning issues.
13. Finally, and with reference to paragraph 7 above, as the Ombudsman will not investigate the substantive issues at the heart of Mr X’s complaint, it would not be a good use of our resources to separately pursue his concerns about what the Council did or did not say in the associated correspondence with him and/or a councillor.

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Final decision

14. We will not investigate Mr X’s complaint because it is reasonable to expect him to use the alternative remedies available to him, there is not enough evidence that fault in the way the Council determined the planning application has affected the outcome, and we will not pursue the related concerns about the complaints process in isolation.

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Investigator's decision on behalf of the Ombudsman