The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s planning enforcement action against him. The Council’s Enforcement Notice gave Mr X a right of appeal to the Planning Inspectorate. If he used that appeal, the matter is outside our jurisdiction and we cannot investigate. Even if Mr X did not use his appeal, it was reasonable for him to have done so. Mr X’s complaint about the planning enforcement visit is also late and there are no good reasons to investigate it now. We will not investigate Mr X’s complaint about the Council’s own complaint process as we are not investigating the core matters giving rise to the complaint.
The complaint
Mr X received a visit from a Council planning enforcement officer in 2019. The officer determined Mr X had developed his property in a way which required planning permission. The Council served a planning Enforcement Notice (EN) on Mr X in 2021. Mr X complains the Council: improperly visited his property unannounced in 2019 to gather information about a planning breach; assured him it would not take enforcement action against him but then did so; broke the law in the way they conducted their 2019 visit; breached his human rights during the visit; did not provide a proper response to his Freedom of Information (FOI) requests about the matter; refused to take his complaint to stage three of their complaint process.
Mr X says the Council’s errors resulted in avoidable enforcement action against him. He says the matter has caused him stress and anxiety which has affected his health. He wants the Council to: withdraw the enforcement action; be held to account for its failings; take action against officers for their conduct; acknowledge it breached planning law in the way it conducted the 2019 visit, and breached his human rights; explain to him why it is withholding some documents from its FOI response, or send him all the information.
The Ombudsman’s role and powers
We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended) 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. They 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.
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
How I considered this complaint
I considered information from Mr X, and the Ombudsman’s Assessment Code.
My assessment
The Council received a report that Mr X had developed his property without planning permission. A planning enforcement officer visited in autumn of 2019. In spring 2020, Mr X applied for a Certificate of Lawful Development (CLD) to regularise what he had built. The Council served Mr X with an Enforcement Notice (EN) in summer 2021. Mr X says the Council did this after one of its officers had assured him it would not take enforcement action. He says the Council did not keep any record of the assurance he received.
Mr X had a right of appeal to the Planning Inspectorate against the terms of the EN. It is not clear if Mr X used that appeal right. If Mr X did appeal the EN to the Inspectorate this matter is outside our jurisdiction under paragraph four above.
If Mr X did not use that appeal right, we would only investigate if it would have been unreasonable for him to do so. It would have been reasonable for Mr X to use that appeal. This is because Mr X’s 2020 CLD application and his complaint to the Council indicate he has been able to continue to engage on the planning matters during this period, indicating he would have been able to appeal instead. The Inspectorate appeal also gave Mr X the appropriate formal route to challenge the Council’s enforcement action. If Mr X believed the Council served its EN in error, given the assurance he says he got from an officer, or broke the law during the process, he could have raised this in his appeal. If he considered there had been procedural errors in the way the Council gathered its information before serving the EN, including the conduct of the home visit, he could have also raised this as part of his appeal.
In any event, even if the complaint about the planning officer’s visit is somehow within our jurisdiction, it happened almost three years ago. We expect people to complain about something they think a council has done wrong within 12 months of being aware of the matter. Mr X was present at the visit he now complains about, so has been aware of it since it happened in autumn of 2019. This means any complaint about that visit is now late. I have considered whether there are any grounds for us to use discretion to investigate it now. The visit is related to the Council’s subsequent EN, against which Mr X had the right of appeal. There are no good grounds to investigate now because if Mr X was dissatisfied with the way the Council dealt with the enforcement matter, he could have appealed the EN to the Inspectorate and raised this as part of that appeal.
Mr X says the Council breached his human rights during the visit, particularly Article 8, the right to a private and family life. Article 8 is not an absolute right. It is a qualified right, which means an authority may interfere with it if it has legitimate duties or objectives which it decides justify such interference. We cannot make a finding on whether Mr X’s human rights were breached or interfered with on good grounds by the Council’s enforcement actions. If Mr X wants such a finding, he would need to take the matter to court.
Mr X is not satisfied with the Council’s response to his Freedom of Information (FOI) requests. That is a complaint for the Information Commissioner’s Office (ICO). The ICO is the organisation best placed to consider the matter. It is reasonable for Mr X to refer this issue to the ICO because it is the body created by national government to assess complaints about authorities’ application of relevant data legislation when responding to FOIs or subject access requests. If Mr X should disagree with the ICO’s decision on his complaint, he would also have a right of appeal at the First Tier Tribunal dealing with information rights.
Mr X says the Council refused to respond to his complaint at stage three of its complaint process. Councils may decide not to proceed with their complaint process and end it at any stage. Furthermore, we will not investigate a council’s complaint process in isolation where we are not investigating the core issue giving rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of Mr X’s complaint.
Final decision
We will not investigate Mr X’s complaint because: if he used his Planning Inspectorate appeal right against the EN, that takes the matter outside our jurisdiction; and even if he did not use his Inspectorate appeal, it was reasonable for him to have done so; the key incident he complains about is the planning officer’s enforcement visit which happened almost three years ago, so the complaint is late and there are no good reasons to investigate it now; we will not investigate his complaint about the Council’s own complaints process in isolation as we are not investigating the core matters giving rise to the complaint.
Investigator's decision on behalf of the Ombudsman