Summary: We cannot investigate Ms X’s complaint about the Council’s refusal of her application for planning permission. This is because Ms X has appealed against the decision to the Planning Inspectorate. We will not investigate Ms X’s complaint about the actions of the Council’s building control team and its planning enforcement investigation because there is not enough evidence of fault.

The complaint

1. The complainant, Ms X, complains the Council oversaw building work to her house but raised no concerns about it at the time. The Council then started enforcement action against her because it found the work did not comply with the approved plans. Ms X applied for retrospective planning permission to retain the development as-built but the Council refused it.

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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 effect 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 the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
5. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• Delay – usually over eight weeks – by an authority in deciding an application for planning permission
• A decision to refuse planning permission
• Conditions placed on planning permission
• A planning enforcement notice.

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How I considered this complaint

6. I considered information provided by Ms X and the Ombudsman’s Assessment Code.

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My assessment

7. When carrying out their functions under the Building Regulations, local authorities may visit at various stages but the number and timings of any inspections vary by local authority and type of development. Local authorities are not present for the great majority of the project and do not act as a ‘clerk of works’.  It is not their role to determine whether the build is in accordance with the approved plans; rather it monitors the work for compliance with the Building Regulations.
8. We would not therefore say it was fault that the Council’s building control team did not notice or tell Ms X that her building work had exceeded what was allowed under the grant of planning permission and could not hold it responsible for the action which followed. We would also not find fault in the Council’s handling of the enforcement case as it is clear that what was constructed breached the planning permission and the Council was therefore required to investigate the issue.
9. Ms X applied for planning permission to the Council to keep the development as constructed but the Council refused her application. Ms X is unhappy with this decision as she says the planning officer made the decision on the grounds of visual amenity despite not having visited the site. But Ms X appealed to the Planning Inspectorate and we cannot therefore consider any complaint about its decision.
10. In any event, by the time the Planning Inspectorate considered Ms X’s appeal the Council had already decided not to pursue any formal enforcement action. This is the best outcome Ms X could have hoped for.
11. Ms X is also unhappy with the way the Council dealt with her complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.

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Final decision

12. We cannot investigate Ms X's complaint about the Council's refusal of her application for planning permission because Ms X has used her right of appeal to the Planning Inspectorate. We will not investigate Ms X’s complaint about the Council’s failure to identify breaches of planning control before the building work on her house was complete. This is because there is not enough evidence of fault by the Council and Ms X now has planning permission to retain the development as-built.

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Investigator's decision on behalf of the Ombudsman