The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council dealt with a planning application and a possible breach of planning control. This is because we are unlikely to find fault. The complainant can appeal to the Planning Inspector if he disagrees with the Council’s decision to take enforcement action against him.
The complaint
Mr X has complained about how the Council dealt with his neighbour’s planning application. Mr X says the decision to grant planning permission was based on inaccurate information and not in line with planning policy. Mr X says the development will have a significant impact on his property.
Mr X has also complained about how the Council has dealt with a possible breach of planning control.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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), 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.
We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
When a local authority receives a planning application it must look at the development plan and material planning considerations to decide if the proposal is acceptable. Material considerations relate to the use and development of the land in the public interest and includes matters such as the impact on neighbouring properties and the relevant planning policies. It is for the decision maker to decide the weight to be given to any material considerations in determining a planning application.
The Ombudsman does not act as an appeal body for planning decisions. Instead, we consider if there was any fault with how the decision was made.
In this case, I am satisfied the Council properly assessed the acceptability of the development, including the impact on neighbouring properties, before granting planning permission. The case officer’s report referred to resident’s objections and addressed the concerns raised. However, the officer decided the development would not have a materially harmful impact on neighbouring amenity in terms of appearing overbearing, loss of light and overlooking. The Council also explained further in response to Mr X’s complaint why it considered the proposal acceptable and why the separation distance between the properties was sufficient.
I understand Mr X disagrees with the Council’s decision to grant planning permission. But the Council was entitled to use its professional judgment to decide the application was acceptable and the Ombudsman cannot question this decision unless it was tainted by fault. As the Council properly considered the application, it is unlikely I could find fault.
Mr X has also complained about the Council’s decision to issue an enforcement notice in relation to a structure he erected at his property. However, if Mr X disagrees with the Council’s decision to take enforcement action he can appeal to the Planning Inspector. I consider it would be reasonable for Mr X to use his right to appeal, and the Ombudsman will not usually investigate when someone has appeal rights.
Final decision
We will not investigate Mr X’s complaint because it is unlikely we would find fault. Mr X can appeal to the Planning Inspector if he disagrees with the Council’s decision to take enforcement action.
Investigator's decision on behalf of the Ombudsman