Summary: We will not investigate this complaint about the Council’s assessment of a certificate of lawfulness application. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. We cannot accept complaints made in a person’s capacity as a councillor, and there is not enough evidence of fault causing significant injustice.

The complaint

1. The complainant, whom I refer to as Mr X, is a councillor and says the Council failed to properly assess a certificate of lawfulness application for an outbuilding at a property near his home, and it delayed in responding to his subsequent complaint.
2. Mr X says he committed to the electorate that inappropriate development would be given full transparency and robustly challenged, and the Council’s decision has undermined confidence in the local planning authority.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The Ombudsman can investigate 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, 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))

5. 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. (Local Government Act 1974, section 34(3), as amended)
6. Also, we can only accept complaints from members of the public or their authorised representatives. This means we cannot accept complaints from councillors complaining about something relating to their position as a councillor. (Local Government Act 1974, section 26A, as amended)
7. And 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.

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How I considered this complaint

8. I considered information provided by Mr X.
9. I also considered our Assessment Code, the planning application documents on the Council’s planning portal, and the government’s ‘Permitted development rights for householders: technical guidance’.

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My assessment

10. The law says we can investigate complaints from members of the public who claim to have suffered an injustice due to fault by the Council. Local councillors, complaining about issues relating to their role as a councillor, are not members of the public. It appears Mr X’s complaint is being made primarily in his capacity as a local councillor, so the Ombudsman has no jurisdiction to investigate his complaint.
11. And even if the complaint was being made in a personal capacity, there is not enough evidence to suggest fault has affected the planning outcome. In reaching this view, whilst I note the decision notice refers to Class A instead of Class E permitted development rights, the proposal was assessed against the correct Class E criteria in the case officer’s report. And although Mr X might disagree with the Council’s view, it was entitled to reach its own planning judgement on what constituted the ‘principal elevation’ of the dwelling on the application site. As such, there is not enough evidence to suggest fault has affected the Council’s decision on the application, so I do not consider Mr X has been caused an injustice.
12. Finally, as we are not investigating the substantive issue being complained about, we will not normally pursue associated concerns about complaint response times in isolation.

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Final decision

13. We will not investigate Mr X’s complaint because it seems he is not complaining as a member of the public, and there is not enough evidence of fault causing him a significant personal injustice.

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Investigator's decision on behalf of the Ombudsman