Summary: We will not investigate this complaint about the Council’s consideration of a planning application as there is no evidence of fault.

The complaint

1. Mr X complains that the Council failed to notify him of a neighbour’s planning application for an extension and failed to take enforcement action.

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The Ombudsman’s role and powers

2. We 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 or continue 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), as amended, section 34(B))

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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.

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My assessment

5. Mr X’s neighbour submitted a planning application for a single storey extension in October 2022 (which was granted in March 2023).
6. Mr X says that he was not notified of the planning application. The Council says that notification letters were issued to him and other neighbours. It adds that a site notice and press notice were also issued.
7. Regulations set out the minimum requirements for how councils publicise planning applications.
8. For major development applications, councils must publicise the application by; a local newspaper advertisement; and either a site notice; or serving notice on adjoining owners or occupiers.
9. For all other applications, including minor developments, councils must publicise by either a site notice or serving notice on adjoining owners or occupiers.
10. The Council did not have to send notification letters as a site notice and press notice had been issued. The Ombudsman would not therefore be critical of any failure to issue letters (if that was the case).
11. Mr X says that the development could affect his trees. The Council considered the trees in the Planning Officer report. An arboricultural report was submitted as part of the planning application which noted that no trees were on the site bit others infringed the area. A condition was added to fence off these trees as a result.
12. The Planning Officer was satisfied that the extension itself did not breach the 45 degree rule which meant that negative affect on neighbouring amenity (privacy and overbearing) was not so great as to warrant refusal.
13. I am persuaded that the Planning Officer report considered all the issues Mr X raises now (and presumably would have raised as objections) and therefore there is no injustice from the alleged lack of notification.
14. Mr X says that there has been a breach of planning which required enforcement action.
15. A Planning Officer visited the site and note that the trees had not been fenced off as required. However, as the work on that part of the extension had not yet started, there was no breach which required enforcement. The Planning Officer noted that some plants may have been affected by the work but this was a private legal matter between the owners concerned. Advice was given about protecting vegetation.
16. 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.
17. 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.
18. 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 September 2023, paragraph 59)
19. I am satisfied that, following a site visit, the Council was fully aware of the facts of the development and therefore any decision not to take enforcement action was one taken without administrative fault.
20. For these reasons, the Ombudsman would not investigate this complaint.

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Final decision

21. We will not investigate Mr X’s complaint because there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman