Summary: We will not investigate this complaint about the Council refusing to take planning enforcement action against an outbuilding, which was not built in accordance with the approved plans. There is insufficient evidence of fault in the way the Council reached its decision on the enforcement case, and an investigation is unlikely to establish whether a council officer was unprofessional during a site visit.

The complaint

1. Mrs X complains the Council has refused to take planning enforcement action against an outbuilding at a neighbouring property, which was built taller than the approved plans. She also says a council officer was unprofessional during a visit to her home.

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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
• 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
• there is no worthwhile outcome achievable by our investigation.

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

3. 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)

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How I considered this complaint

4. I considered:
• information provided by Mrs X and the Council, which included their complaint correspondence.
• information about the planning applications for the outbuilding, available on the Council’s website.
• the Council’s ‘Planning Enforcement Charter’.
• the Ombudsman’s Assessment Code.

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My assessment

5. I appreciate Mrs X is very unhappy that the Council has decided not to take planning enforcement action against the neighbour’s outbuilding.
6. But the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at whether there was fault in how it made its decisions. 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.
7. I consider there is insufficient evidence of fault in the way the Council has reached its decision on the enforcement case, so we will not start an investigation. In reaching this view I am mindful that:
• councils can take planning enforcement action if they find planning rules have been breached. However, they should not take action just because there has been a breach of planning control. Planning enforcement is discretionary, and formal action should happen only when it would be a proportionate and expedient response to the breach. As such, councils may decide to take informal action or not to act at all.
• officers visited both Mrs X and the neighbouring property during the course of the enforcement investigation.
• each case has to be considered on its own merits, and officers were entitled to use their professional judgement to decide whether the outbuilding causes material harm to Mrs X’s amenity.
• the Council has explained the reasons for its decision to Mrs X.
• it is open to Mrs X to look at the Council’s planning database for examples of how it has assessed other planning applications for outbuildings.
• party wall issues are ultimately a private, civil matter between the parties involved. There was no requirement for the Council to provide advice to the neighbour about this.
8. And in the absence of any independent witnesses, an investigation by the Ombudsman is unlikely to be able to establish whether the council officer acted unprofessionally towards Mrs X during a site visit. So, we would not start an investigation into this part of the complaint either, as we could not add to the previous investigation by the Council.

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Final decision

9. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault in the way the Council reached its decision on the enforcement case, and we could not establish whether the council officer behaved unprofessionally.

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Investigator's decision on behalf of the Ombudsman