The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision to take enforcement action against the complainant. This is because the complainant had the right to appeal to the Planning Inspector.
The complaint
The complainant, whom I shall refer to as Mr X, has complained about the Council’s decision to take enforcement action against him. He says the Council failed to act in line with government rules or its enforcement policy. He disagrees with the Council’s reasons for taking enforcement action and says it should have allowed him to make a retrospective planning application.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b)) The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about: delay – usually over eight weeks – by an authority in deciding an application for planning permission a decision to refuse planning permission conditions placed on planning permission a planning enforcement notice.
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
The Ombudsman will not investigate Mr X’s complaint about the Council’s decision to take enforcement action. This is because he had the right to appeal to the Planning Inspectorate. I consider it would have been reasonable for Mr X to have used his appeal right. The Ombudsman will not usually investigate when someone had the right to appeal, even if the appeal would not have provided a remedy for all the issues complained about.
Mr X has also complained about how the Council dealt with his retrospective planning application. The Council used its powers under section 70C of the Town and Country Planning Act 1990 to decline to determine the application as it said the nature of the development applied for was the same as that subject to the enforcement notice. I understand Mr X disagrees with the decision not to determine the application. But it is for the Council to decide if the provisions of section 70C of the Town and Country Planning Act apply, not the Ombudsman. If Mr X disagreed with the Council’s decision to use its powers under section 70C, he could have pursued the matter through the courts.
Final decision
We will not investigate Mr X’s complaint because he had the right to appeal to the Planning Inspectorate.
Investigator's decision on behalf of the Ombudsman