The Ombudsman's final decision
Summary: We will not investigate Mr B’s complaint about the Council’s decision not to take planning enforcement action about a breach of planning control. This is because there is not enough evidence of fault to justify an investigation.
The complaint
The complainant, who I will refer to as Mr B, complains that the Council has refused to take planning enforcement action about a structure erected in a neighbouring garden. Mr B says the structure is a breach of planning control and significantly affects the amenity of his home. Mr B would like the Council to order his neighbour to move the structure to a different part of their garden.
The Ombudsman’s role and powers
The Ombudsman investigates 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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6)) We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by Mr B and the Council’s responses to Mr B’s complaint.
I have also considered the Ombudsman’s Assessment Code.
My assessment
Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement 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 response to the breach.
Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59) The Council has investigated the breach of planning control reported by Mr B. The Council is satisfied the structure is a breach of planning control. But, the Council has decided the structure is not causing sufficient harm to justify enforcement action.
Mr B disagrees with this decision. But, I have not seen any information to suggest the Council’s decision was affected by fault. The Council took relevant factors into account including what is allowed under permitted development rules – which is development which does not require a grant of planning permission from the local planning authority.
Because the information does not indicate the Council was at fault for the way it reached this decision, we cannot say the Council should have used its judgement differently.
Final decision
We will not investigate Mr B’s complaint because there is not enough evidence of fault to justify an investigation.
Investigator's decision on behalf of the Ombudsman