Summary: We will not investigate this complaint about the Council failing to take planning enforcement action against works to a building which the complainant thinks is curtilage listed. There is not enough evidence that fault by the Council has caused the complainant a significant injustice.

The complaint

1. Mrs X complains the Council has failed to take planning enforcement action against works at a neighbouring property, which she believes is curtilage listed.

Back to top

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 directly caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

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

3. With reference to the first bullet point above, we can consider whether there was fault in the way the Council made its decision. If there was no fault in how it did so, we cannot question the outcome, regardless of whether the complainant disagrees with the decision the Council made. (Local Government Act 1974, section 34(3), as amended)

Back to top

How I considered this complaint

4. I considered:
• information provided by Mrs X and the Council, which included the complaint correspondence and Historic England guidance on the setting of heritage assets.
• information about the planning application for the neighbouring property, as available on the Council’s website.
• information about the Council’s planning enforcement process, as available on its website.
• the Ombudsman’s Assessment Code.

Back to top

My assessment

5. I appreciate Mrs X believes the neighbouring property is curtilage listed, and thinks the Council should have taken planning enforcement action against works to it which were not in accordance with the approved plans, and against other recent additions to the property.
6. 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 or a more positive outcome for the complainant.
7. I consider there is insufficient evidence of fault directly causing Mrs X a significant injustice, in the way the Council has considered the heritage status of the neighbouring property. In reaching this view, I am mindful that:
• Officers were entitled to reach their own professional judgement on whether the neighbouring property should be regarded as curtilage listed, even if Mrs X disagrees with the conclusion reached.
• Building Conservation was consulted on the planning application for the conversion of the neighbouring property. At that time, the building was regarded as a non-designated heritage asset, rather than curtilage listed. The Council’s complaint responses also provide further explanation as to why the building is still not considered to be curtilage listed.
• Building Control is covered by separate legislation/regulations to Planning, so they would not necessarily be expected to identify breaches of planning control during their visits.
• I understand the time limit for taking enforcement action against the deviations from the approved plans and the erection of an outbuilding, has expired.
• I understand other recent works at the property benefit from permitted development rights.
• The Council accepts that when it determined Mrs X’s planning application for works to her own property, it wrongly regarded the neighbouring property as curtilage listed. However, this did not affect the overall planning outcome, as the application was refused on other grounds, not just the impact of the proposal on the neighbouring property.
• Planning enforcement visited the neighbouring property in response to concerns raised about an alleged commercial use, but was satisfied this was at such a low level that it was not expedient to pursue enforcement action. This is a decision it was entitled to reach.

Back to top

Final decision

8. We will not investigate Mrs X’s complaint because there is not enough evidence that fault by the Council has caused her a significant injustice.

Back to top

Investigator's decision on behalf of the Ombudsman