The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint that the Council failed to identify non-compliance with a grant of planning permission. This is because it is unlikely we would find fault. We will not investigate Mr X’s complaint about the Council’s decision not to require further action in compliance with the terms of the planning permission because it is unlikely we could achieve any worthwhile outcome.
The complaint
The complainant, Mr X, complains the Council has failed take action to ensure compliance with the terms of a planning permission, S106 planning obligation and associated management plan.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mr X and the Ombudsman’s Assessment Code.
My assessment
There is no requirement for a council to actively monitoring compliance with every planning permission it grants. Councils are expected to investigate issues which are brought to their attention but there is no suggestion that any concerns were raised by residents and ignored by the Council in this case. It is therefore unlikely we would find fault in the Council’s failure to identify alleged breaches of planning control prior to concerns being raised in 2020.
Mr X is also concerned the Council has failed to enforce compliance with the management plan more recently and that its investigations have resulted in unnecessary and inappropriate works being carried out on an area of land near his property. But responsibility for compliance and for any works falls on the management company, of which Mr X is a part. Mr X cannot himself decide what action the management company should take, but he has a say. This is the downside of the structure.
The Council has considered reports about the various issues concerning Mr X and while he believes it should take steps to secure further action by the management company this would not necessarily result in the outcome he wants.
Mr X is in the process of taking legal action against his solicitors for failing to properly advise him about the implications of the arrangement with the management company and this is where the issue lies. We could not say the Council should provide a remedy where Mr X is seeking compensation for the issue through the courts. Mr X also has the option of making a claim against the Council through his legal expenses insurance, as he has done with his former solicitors, if he believes it is responsible. The courts are better placed to determine and apportion liability between the relevant parties.
Mr X is also unhappy with the way the Council dealt with his complaint. But it is not a good use of public resources to look at the Council’s complaints handling if we are not going to look at the substantive issue complained about. We will not therefore investigate this issue separately.
Final decision
We will not investigate this complaint. This is because it is unlikely we would find fault in the Council’s failure to identify issues of non-compliance with the original grant of planning permission and it is unlikely we could achieve any worthwhile outcome by investigating its more recent decision not to require further action by the management company.
Investigator's decision on behalf of the Ombudsman