Summary: We will not investigate Mrs X’s complaint about the Council’s failure to decide a Prior Notification application within the statutory time frame. The person affected has already taken legal action. Also, even if we could have considered the complaint, we could not achieve the outcome Mrs X is seeking.

The complaint

1. Mrs X complains the Council failed to decide a Prior Approval application for a telecommunications mast (‘the mast’) near a property she owns.
2. She wants financial compensation to cover ten percent of the value of the property, estate agent fees, stamp duty, and all costs associated with selling the property and buying another.

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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 to resolve their complaint through legal action, we cannot investigate. This is the case even if the legal action 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 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 we cannot achieve the outcome someone wants.

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

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How I considered this complaint

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

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My assessment

8. Mrs X confirms her daughter, Ms Y, took legal action against the Council for failing to take enforcement action against the mast.
9. In response to my enquiries, Mrs X confirmed that she and her daughter lived in the family home which she owns. However, they had both moved out of the property which has been let for some years, although they intend to move back in the future.
10. The law says we have no power to investigate any action where the 'person affected', (not "the complainant") has or had a remedy by way of proceedings in court.
11. In the decision on Ms Y’s application for judicial review the court said:
    “The basic point raised by this judicial review is the effect of the Defendant’s failure to respond to the application for prior approval within 56 days.”
12. This complaint is made by Mrs X, but she and Ms Y are both persons affected. Mrs X is a member of the public who claims to have suffered injustice. However, through the actions of Ms Y, she had access to a remedy for that claimed injustice in court.
13. For the above reasons I consider this complaint is outside the Ombudsman’s jurisdiction. However, even if we were able to consider this case, we could not achieve the outcome Mrs X is seeking. In separate legal action against the telecommunications company, the First Teir Tribunal found it was “not persuaded the mast detrimentally impacts the market value of her property.

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Final decision

14. We will not investigate Mrs X’s complaint because we consider she has already sought a remedy through Ms Y’s legal action against the Council. And, even if we could consider the complaint, we could not achieve the outcome Mrs X is seeking.

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Investigator's decision on behalf of the Ombudsman