Summary: We will not investigate this complaint about the way the Council has dealt with a planning application. We do not consider the complainant has suffered sufficient personal injustice to warrant an investigation. Also, we cannot achieve the outcomes the complainant is seeking.

The complaint

1. Mr X complains the Council:
• failed to comply with its own committed deadlines for planning applications
• failed to allow reviewers to remain anonymous until the 'support' reviewers appeared after the closure of the consultation
• failed to publish review comments in full, on three occasions
• failed to ensure that the factual comments raised in consultation 1 were fully addressed before allowing round 2 to proceed; and
• failed to refer him to the Ombudsman.
2. Mr X says he has:
• spent time preparing and submitting responses to his neighbour’s planning application
• spent time pursuing his complaint; and
• spent time and money making a planning application when others do not bother.
3. He wants:
• an internal audit of the planning department
• assurance that local government and planning processes remain independent of customers and suppliers
• rewards for those who use the planning process correctly by giving them a rebate for 'right first time' applications
• retrospective planning applications forbidden to those that could have reasonably followed the correct process
• the Council to issue a national rogue traders list and place his neighbour’s suppliers and architects involved on the list
• the Council to withdraw the planning permission for the retrospective planning application and have the unauthorised building work removed
• pay compensation to those affected; and
• fine the neighbour.

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The Ombudsman’s role and powers

4. 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:

• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council granted planning permission for a resident in a road behind Mr X’s home to develop their property. However, what the resident built did not accord with the approved plans.
8. The resident submitted a retrospective planning application. However, Mr X and others told the Council the submitted plans were not correct. The Council says it decided to assess the application based on what had been built and therefore it did not consider the plans prejudiced its decision. The Council decided to approve the retrospective planning application.
9. Following a judicial review of the Council’s decision to approve the application, the decision to approve the retrospective application was quashed and the case returned to the Council for re-determination. The Council confirms it is waiting for the accurate plans it has asked the applicant for. The development is therefore unauthorised, and it is open to the Council to take enforcement action, should it decide to do so.
10. 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.
11. 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. The Council’s decision to seek a retrospective planning application to authorise what is built is not fault.
12. Once the Council receives the correct plans, it can process the application in the usual way and the public, including Mr X, will be able to comment. If the neighbour chooses not to put in accurate plans, the Council must decide whether to take enforcement action. It should advise Mr X what action, if any, it will take and its reasons for doing so.
13. I understand Mr X may feel frustrated that an unauthorised building remains on site. I also understand he feels it is unfair that he and others have applied for planning permissions and have adhered to the permissions when the neighbour has not. However, the neighbour decided to build outside of the planning permission, not the Council. And we do not consider the injustice claimed by Mr X is so significant as to warrant an investigation.
14. In addition, the Ombudsman cannot achieve most of the outcomes Mr X is seeking. We cannot require the Council to reward those who use the planning process correctly by giving them a rebate for 'right first time' applications – planning application fees are set nationally by the government. And retrospective planning applications are a legitimate way of regularising breaches of planning control. The planning permission for the retrospective application has already been withdrawn.
15. Breaching planning control is not an illegal act, and the Council cannot fine the neighbour. If it does not receive accurate plans it must decide what enforcement action, if any, it will take.
16. Mr X has not claimed that he is suffering from loss of amenity because of the unauthorised building. For example, he is not claiming that he is now overshadowed or overlooked. I understand he has chosen to make his own planning applications and spent time commenting on others. However, I do not consider this is sufficient injustice to warrant compensation.
17. The Ombudsman cannot require the Council to issue a national rogue traders list and add the neighbour’s suppliers and architects to such a list.

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Final decision

18. We will not investigate Mr X’s complaint because we do not consider he has suffered a significant personal injustice. Nor can we achieve the outcomes he is seeking.

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Investigator's decision on behalf of the Ombudsman