Summary: We will not investigate this complaint about the Council’s handling of a planning enforcement case, an associated freedom of information (FoI) request, and the subsequent complaint process. There is not enough evidence of fault in the way the Council determined the enforcement case, it is reasonable to expect the complainant to refer any FoI concerns to the Information Commissioner, and it is not a good use of our resources to pursue any concerns about the Council’s complaint process in isolation.

The complaint

1. Ms X complains the Council has failed to take planning enforcement action against landscaping works in her neighbour’s rear garden, which she believes amount to a breach of planning control by reason of the change in ground levels. Ms X says the works have caused flooding and damage to her property.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

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

4. With regard to the first bullet point above, we 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)
5. The law also says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The Information Commissioner's Office (ICO) considers complaints about freedom of information (FoI). Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about FoI, we normally consider it reasonable to expect the person to refer the matter to the ICO.
7. And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

8. I considered:
• information provided by Ms X.
• information about the neighbour’s planning application for other works to the building, available on the Council’s website.
• the Ombudsman’s Assessment Code.

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My assessment

9. I appreciate Ms X is unhappy about the impact of the works in the neighbouring garden, and that the Council has not done more to assist her.
10. 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. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
11. I consider there is insufficient evidence of fault (in the way the Council reached its decision that a breach of planning control could not be substantiated), to justify starting an investigation. In reaching this view, I am mindful that:
• The Council visited the site, and took photographs.
• The Council considered the neighbour’s response to a Planning Contravention Notice.
• The Council considered historical sales photographs of the rear garden prior to the works
• The Council considered information (including photographs and videos) submitted by Ms X during the enforcement case and subsequent complaint process. There was no requirement to also visit her property.
• The landscaping works did not form part of the neighbour’s planning application for extensions to their home, so the drainage condition on the planning permission would not apply to the works in the rear garden.
• Party Wall issues are a private, civil matter between Ms X and her neighbour.
12. Ms X has also raised concerns about the Council ignoring her freedom of information request. With reference to paragraphs 5 and 6 above, I see no reasons why she should not be expected to refer that matter to the ICO, so we will not investigate this aspect of the complaint either.
13. Finally, and with reference to paragraph 7 above, as we are not investigating the substantive matters being complained about, it would not be a good use of our resources to pursue, in isolation, Ms X’s associated concerns about a conflict of interest in the complaints process.

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Final decision

14. We will not investigate Ms X’s complaint because there is not enough evidence of fault in the way the Council reached its decision on the planning enforcement case, it is reasonable to expect her to refer any FoI concerns to the ICO, and it is not a good use of our resources to pursue any concerns about the Council’s complaint process in isolation.

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Investigator's decision on behalf of the Ombudsman