Summary: We will not investigate this complaint about the Council’s determination of a planning application for a House in Multiple Occupation (HMO), and its handling of the associated planning enforcement case. There is insufficient evidence of fault affecting the planning outcome or causing the complainant a significant injustice, and we cannot achieve the outcome she is seeking.

The complaint

1. Mrs X complains about the Council’s decision to grant planning permission for the change of use of a building to a House in Multiple Occupation (HMO), and that the Planning Enforcement team failed to keep them updated after they reported that the proposed use had already commenced.

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The Ombudsman’s role and powers

2. We 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. So, 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, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or

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

3. With regard to the first bullet point above, we can consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. And in relation to the second and third bullet points, we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures by the Council. We do not start an investigation if we decide the impact of the fault a person complains about is not so significant that we should investigate.

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How I considered this complaint

5. I considered:
• information provided by Mrs X.
• information about the planning application, on the Council’s website.
• the report to the Planning Committee, the minutes of that meeting and the webcast recording.
• the Council’s ‘Planning Enforcement Policy’.
• the Ombudsman’s Assessment Code.

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My assessment

6. I appreciate Mrs X is very unhappy about the Council’s decision to grant planning permission for the use of the property as an HMO.
7. But the Ombudsman is not an appeal body, this means we do not take a second look at a Council decision to decide if it was wrong. Instead, we look at whether there was fault in how it made its decision, and we consider if any fault we may find is likely to have affected the outcome or caused the complainant a significant injustice. In other words, we will only pursue a complaint if there is clear evidence of fault in the way a decision was made which, but for that fault, is likely to have led to a different decision.
8. I consider there is insufficient evidence that fault by the Council has affected the decision on the application, so we will not start an investigation. In reaching this view, I am mindful that:
• The case officer had visited the site, so would have been aware of the proximity of the proposed development to neighbouring properties.
• The volume of local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
• Rather, decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise. And it is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
• The objections to the application are summarised in the report and the addendum to the Planning Committee. Objectors also spoke at the meeting.
• The Committee report goes on to address the concerns raised, the previous reason for refusal, and assesses the principle of the development, the impact on the character and appearance of the area, the impact on surrounding residential amenity, and the impact on the highway.
• Council officers were entitled to use their professional judgement to decide whether they had sufficiently detailed/accurate information upon which to reach their recommendation on the proposal. I do not consider the discrepancies in the answers on the application form have affected the Council’s assessment of the substantive planning merits of the proposal.
• There are no references in the report about the proposed end-user of the property, and the Council has explained that when the decision on the planning application was made, there was no agreement in place for the Council’s Housing Team to utilise the HMO. I also note the Council has no control over what the applicant said in his speech to the Committee.
• The description of the development and a condition on the permission limit the number of occupants of the HMO. If residents believe this condition is being breached, it is open to them to report this to the Planning Enforcement team.
• Other conditions require the development to meet Secured by Design standards, and for the bike store to be erected in accordance with the approved plans. So, whilst I note Mrs X’s concerns about comments made at the Committee meeting regarding the height of the store compared to her boundary, I am not persuaded that this affected the Committee’s decision on the application.
9. And in relation to the Council’s handling of the associated planning enforcement case, I also conclude there is insufficient evidence of fault causing Mrs X a significant injustice to justify starting an investigation. In reaching this view, I am mindful that:
• Planning enforcement action is discretionary, and Government guidance says councils should act proportionately when considering their enforcement powers. In other words, there is no expectation that councils should automatically enforce against every planning breach. Instead, councils may decide to take informal action instead or not to act at all. In that regard, it is common practice for planning authorities to put enforcement cases on hold, pending the decision of an associated planning application.
• the Council says updates were provided when requested, and that Mrs X will be updated when the enforcement case reaches a conclusion.
10. Finally, we could not achieve the outcome Mrs X is seeking, as we cannot direct the Council to revoke the planning permission.

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Final decision

11. We will not investigate Mrs X’s complaint because there is insufficient evidence that fault by the Council has affected the planning outcome or caused her a significant injustice, and we cannot achieve the outcome she is seeking.

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Investigator's decision on behalf of the Ombudsman