The Ombudsman's final decision
Summary: We cannot investigate this complaint about the Council taking planning enforcement action. The complainant has appealed to the Planning Inspector therefore the matter is outside our jurisdiction.
The complaint
Mrs X complained the Council issued a planning enforcement notice, blocking the development of her property into a residential premises. She said it based this decision on an Energy Performance Certificate (EPC) that was unlawfully revoked.
Mrs X said the Council had ignored freedom of information requests and refused to validate subsequent planning applications. She said the Council’s actions had resulted in significant financial damage and distress. She wants an apology from the Council, for it to disclose all internal communication about the development and to review the processes that led to it taking enforcement action against her.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 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 has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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.
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 the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
We cannot investigate Mrs X’s complaint about an unlawfully revoked EPC. The Council was not responsible for completing the EPC or revoking it. This was completed by a private company. We have no jurisdiction to investigate the actions of that company.
We cannot investigate Mrs X’s complaint the Council blocked the development of her property into a residential premises. That is because Mrs X appealed the Council’s enforcement notice to the Planning Inspector; therefore, it is outside our jurisdiction. Mrs X has also appealed more recent planning decisions. Therefore, these matters are also outside our jurisdiction. This includes any concerns she has about the Council’s actions in relation to those planning applications, as these are not separable to the matters under appeal.
Mrs X has lodged an appeal with the Information Commissioner’s Officer (ICO) around the Council’s handling of her freedom of information request. This is the correct body to consider any complaints about her personal information, or requests for information.
Mrs X states the Council’s actions have resulted in significant financial loss. Any claim against the Council for financial damages would need to be made through the courts, not the Ombudsman. There are no good reasons Mrs X could not go to court to pursue this.
If Mrs X has any other complaints about the Council’s actions or conduct, which are separable from her appeals, she would need to make a complaint to the Council and exhaust its complaint procedures before we could consider the matters.
Final decision
We cannot investigate Mrs X’s complaint because it has been subject to a Planning Inspectorate appeal.
Investigator's decision on behalf of the Ombudsman