Summary: We will not investigate this complaint about the Council’s decision that it has no powers to require a developer to close a temporary access to a development site which is on private property. Also, if the complainant believes the Council is withholding information, it is reasonable to expect him to complain about this to the Information Commissioner’s Office.

The complaint

1. The complainant, I shall call Mr X, say the Council granted planning permission for new houses near his home. He complains this included a temporary access which was added at the last minute without consultation.
2. Mr X also complains the Council refuses to explain the criteria used by the highways department when it decided the access was safe,
3. Mr X says his property has no visual splay and therefore he is at risk of being hit by traffic from the construction site every day. He wants the Council to accept the decision to approve the access is wrong and instruct the developer not to use it. He also wants the Council to take enforcement action against breaches of working hours.

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The Ombudsman’s role and powers

4. 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
• there is another body better placed to consider this complaint.

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

5. 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 ICO.

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How I considered this complaint

6. I considered information provided by Mr X.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Outline planning permission for five houses and access was granted by the Planning Inspectorate, not the Council. The Planning inspector included a standard condition which says:

“There shall be no establishment of a site compound, site clearance, demolition, excavation or depositing of material before details of: (i) On-site parking for staff and contractors; and (ii) The storage of on-site materials; Have been submitted to and approved in writing by the local planning authority. The development shall thereafter be carried out in accordance with the approved details.”

9. The developer provided the required details with their application to discharge the planning conditions. The highways department confirmed the condition is satisfied.
10. The Council confirms the temporary access is not on the public highway and not under the Council’s control.
11. As part of his complaint Mr X says the Council refuses to provide him with information he has requested.
12. It is reasonable to expect Mr X to use his right of appeal to the ICO on this point. This is the body with specific powers to deal with matters relating to access to information. The ICO has powers which the Ombudsman does not have to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004.

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Final decision

13. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the Council’s actions. And it is reasonable to expect him to complain to the ICO if he believes the Council is withholding information.

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Investigator's decision on behalf of the Ombudsman