Summary: We will not investigate this complaint about the Council not pursuing enforcement action against the use of a residential outbuilding as a professional boxing gym. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It would not be possible to carry out a fair investigation into the older events now, and there is not enough evidence of fault in the way the Council reached its recent enforcement decision.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council failed to continue to pursue enforcement action in 1993, following an unsuccessful appeal against an enforcement notice which required the cessation of the use of a residential outbuilding as a boxing gym. Following the intensification of the use in February 2020, the Council decided it was not expedient to initiate further enforcement proceedings.

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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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
3. And 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)
4. Finally, we have the general discretion to decide whether to start an investigation into any complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I considered information provided by Mr X and our Assessment Code.

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Summary of what happened

6. In 1993, the Council served an enforcement notice against the gym. The Planning Inspector dismissed an appeal against the notice and required the cessation of the use of the outbuilding for boxing training. The Council accepts it failed to pursue the matter further via prosecution for non-compliance with an enforcement notice. Mr X says he just assumed the gym operator had found a way round the Inspector’s decision.
7. The operation of the boxing gym therefore continued.
8. The Council received another complaint about the site in 2014. The investigating enforcement officer appears to have been unaware of the 1993 appeal decision, so concluded that as the use had been ongoing for over 20 years the deadline for initiating enforcement action had expired.
9. Mr X contacted the Council in February 2020, as clients started visiting the gym in the early morning.
10. In November 2021, the Council concluded that due to the excessive passage of time since the 1993 appeal decision, it would not be reasonable or just to now pursue the non‑compliance with the enforcement notice via a prosecution, and it would be unlikely to achieve a positive outcome in court.

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My assessment

11. With reference to paragraph 4 above, I do not consider it would be possible for the Ombudsman to now conduct a sound and fair investigation into the Council’s actions in 1993 and 2014, so we will not pursue these matters further.
12. And whilst there appears to have been delay in reaching the November 2021 enforcement decision, the Ombudsman cannot ultimately question the merits of the Council’s decision unless there is evidence of fault in the way it was made. I have seen no evidence of fault in how the Council reached its judgement not to pursue further enforcement action, so the Ombudsman will not investigate this part of the complaint either.

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Final decision

13. We will not investigate Mr X’s complaint because some of the events happened too long ago, and there is not enough evidence of fault in the way the Council made its recent enforcement decision.

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Investigator's decision on behalf of the Ombudsman