The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision not to take enforcement action against a breach of planning control on land next to his home. There is not enough evidence of fault to justify an investigation.
The complaint
The complainant, who I shall call Mr X, complains the Council refuses to take enforcement action against a breach of planning control which affects the security of his home.
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 or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating further investigation would not lead to a different outcome (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X says the Council refuses to take planning enforcement action to remove earth banking on the playing field on his boundary. He is concerned the banking compromises the security of his home.
Councils can take enforcement action if they find planning rules have been breached. However, 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.
So, a breach of planning control does not automatically mean a local planning authority will ask a developer to remove or stop whatever they have done. Rather, planning enforcement is a discretionary power that should only be used to put right any harm caused by the failure to comply with planning control. When there is no harm or it is insignificant, enforcement action is generally not justified.
In this case, the Council confirms planning enforcement officers have inspected the site. The Council decided the earth banking can be considered as engineering works which require planning permission. However, if a planning application were made, it would be likely to grant permission.
As the Council is the landowner of the playing field, officers from its property and valuation department also inspected the site.
Following site inspections and consideration of the breach of planning control the Council decided not to take enforcement action The information we have seen does not suggest the Council’s decision was affected by fault. This means we cannot say the Council’s decision not to act against the breach was right or wrong.
It is possible that Mr X’s expectations were raised by the Council when it discussed the work some years ago. But this does not mean the Council was at fault for deciding not to pursue enforcement action.
Final decision
We will not investigate Mr X’s complaint because there is not enough evidence of fault in the Council’s actions to justify an investigation.
Investigator's decision on behalf of the Ombudsman