Summary: We will not investigate this complaint about how the Council considered reports of breaches of planning control. There is not enough evidence of fault in the Council’s actions to justify an investigation.

The complaint

1. Mr and Ms X complain the Council:
• Conducted a flawed investigation and did not carry out a site visit.
• Made an irrational decision that contradicted advice that the track would have an unacceptable impact on amenity.
• Misapplied planning law and failed to identify a material change of use.
• Relied on legally unsound reasoning and unverified developer claims to support its outcome; and
• Failed to meet the deadline for its complaint response.

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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 impact 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 or continue an investigation if we decide there is not enough evidence of fault to justify investigating.

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

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How I considered this complaint

3. I considered information provided by Mr and Ms X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mr and Ms X live next to a plot where the previous house has been demolished.
6. Mr and Ms X complained to the Council the new owner of the plot has carried out unauthorised work on the site. The Council opened an enforcement case.
7. In response to Mr and Ms X’s complaint, the Council said it had initially allocated the case to enforcement officer A. However, officer A told the Council they knew a relative of the landowner. To avoid a conflict of interest, the Council reassigned the case to officer B.
8. Officer B considered information provided by the landowner and by Mr and Ms X. They concluded the development was permitted development and that there were no breaches of planning control on the site.
9. Mr and Ms X requested a review of the decision.
10. A senior officer visited the site and met with Mr and Ms X and heard their concerns.
11. The senior officer decided planning permission was not needed to remove vegetation from the site or to level the sloping land. He considered there was no evidence the work had significantly raised the land level across the whole site.
12. However, the senior officer considered that planning permission was required to bring in hardcore to create the track. As the site is close to a watercourse, the Council consulted the Environment Agency.
13. The Environment Agency confirmed it had no objections to the work carried out.
14. The Council said it considered the wider impact of the completed work on the character and appearance of the area and on neighbouring properties. It noted the track was mainly used for storing and accessing three caravans, and that there was an existing vehicle crossover from when the demolished property was still on the site. The Council decided this occasional use did not significantly change the character of the land and that it was not expedient to take enforcement action.
15. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
16. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
17. In this case, having visited the site, spoken to Mr and Ms X and considered the impact of the track the Council has decided not to take enforcement action. This is a decision it is entitled to take.
18. 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.
19. Mr and Ms X say this decision contradicts earlier advice that an access road on the site of the current track was not acceptable because of its impact on neighbours, including them. However, that advice was given in the context of an access road serving proposed new properties. The current track is used only occasionally to access stored caravans, rather than the much heavier use an access road for new homes would generate.
20. I understand Mr and Ms X are also concerned that the Council acted quickly to investigate a report that they had breached planning control, and that officer B investigated that report.
21. I have not seen enough evidence of fault in the way the Council considered the report that Mr and Ms X had breached planning control. The officer visited the site and noted that work to their home did not follow the approved plans. Mr and Ms X then submitted a non-material amendment application, which the Council approved. The matter was therefore resolved.
22. Finally, the Council’s response to Mr and Ms X’s complaint was late. The Council has apologised for this. We expect Council’s to follow their complaint procedures. However, we do not consider it a good use of public funds to investigate a complaint about the complaint process, when we are not investigating the substantive issue.

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Final decision

23. We will not investigate this complaint because there is insufficient evidence of fault in the Council’s actions to justify an investigation.

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Investigator's decision on behalf of the Ombudsman