Summary: Mr X complains about the Council’s failure to take planning enforcement action against a neighbour. We will not investigate this complaint because there is no evidence of fault by the Council and the matter has not been determined yet and so any injustice is speculative.

The complaint

1. Mr X complains about the Council’s failure to take planning enforcement action against a neighbour.

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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 the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.
5. The complainant had the opportunity to comment on a draft of this decision.

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My assessment

6. Mr X says that a neighbour’s extension has been built too close to his house and not in accordance with the planning permission approved plans.
7. The Council has sought and obtained a new retrospective planning application from the neighbour which has not yet been determined.
8. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
9. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
10. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)
11. Councils have a range of options for formal planning enforcement action available to them, including:
12. Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
13. Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
14. Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
15. Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
16. Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
17. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
18. In this case the Council has obtained a retrospective planning application from the neighbour to see if the Council would consider approval for that which has been built, notwithstanding the failure to comply with the previous planning permission.
19. The Council’s actions are not therefore fault. Any injustice depends on the outcome of that planning application. If Mr X remains unhappy with the decision he may make a further complaint to this office.

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Final decision

20. We will not investigate this complaint because there is no evidence of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman