Summary: We will not investigate this complaint about the way the Council considered Mr X’s planning applications, enforcement action against him and his complaints. We cannot consider complaints about matters linked to court action or that have been appealed to the Planning Inspector even if the legal action or appeals do not remedy all the claimed injustice. We do not consider Mr X has suffered a significant personal injustice because of an alleged failing in the Council’s complaints handling to justify an investigation into this matter alone.

The complaint

1. Mr X complains about procedural fault in the way the Council made its decision to take formal enforcement action against him for breaches of planning control.
2. He also complains about fault in the way it dealt with his complaints.

Back to top

The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
6. 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 any injustice is not significant enough to justify our involvement.

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

Back to top

How I considered this complaint

7. I considered information provided by Mr X and the Council.
8. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

9. Mr X says there is procedural fault in the way the Council gave pre-planning application advice and considered planning applications. He also says the Council proceeded with enforcement action without first exploring reasonable alternatives, focusing on punitive action rather than resolution.
10. Mr X also complains the Council:
• failed to consider the Human Rights Act or make reasonable adjustments for his partner’s health issues; and
• failed to follow its complaints procedure.
11. Mr X has appealed to the Planning Inspector about the Council’s various decisions to refuse planning applications, refuse to issue a Lawful Development Certificate and to issue an Enforcement Notice.
12. The law says we cannot consider complaints about such matters when the complainant has exercised their right to appeal. This rule applies even if the appeal did not or could not provide a complete remedy for all the injustice claimed.
13. The Council has also confirmed it got an injunction from the courts on enforcement action against breaches of planning control at Mr X’s property. Mr X is now appealing to the High Court on this matter. Therefore the restriction at paragraph four above applies, even if the appeal cannot provide a complete remedy for all Mr X’s claimed injustice.
14. Mr X says the Council failed to consider his partner’s health issues and failed to carry out an Equality Impact Assessment. I consider this is inextricably linked to the issues regarding planning applications and enforcement action. Therefore we cannot consider these matters as the restrictions detailed in paragraphs four and five above apply.
15. Finally, Mr X says the Council has failed to follow its complaint procedure. It refused to respond to his complaint as it concerns matters currently subject to legal action in the High Court. We will not investigate this part of Mr X’s complaint. We do not consider he has suffered a significant personal injustice on this point, and it is not a good use of public funds to investigate complaints about complaint handling alone, when we cannot investigate the substantive issue.

Back to top

Final decision

16. We will not investigate Mr X’s complaint because:
• We cannot consider complaints about matters linked to issues subject to court action.
• We cannot consider complaints about matters linked to issues that that have been appealed to the Planning Inspector.
• We do not consider an alleged failure in the complaint procedure alone to cause sufficient personal injustice to justify an investigation when we are not investigating the substantive issues.

Back to top

Investigator's decision on behalf of the Ombudsman