Summary: We will not investigate this complaint about the Council’s decision not to take enforcement action against a reported breach of planning control and fly tipping. There is not enough evidence of fault in the way the Council considered the reports of breaches of planning control to justify an investigation. Also the Council confirms it has arranged with the owner to remove the items left in an alleyway. Therefore further investigation on this point will not lead to a different outcome.

The complaint

1. Mr X complains the Council has failed to enforce planning conditions put in place to protect residents. He also says it has allowed a business to fly tip in an alleyway behind his home.

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The Ombudsman’s role and powers

2. 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, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by Mr X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Some years ago the Council placed a condition on a planning permission which requires tables and chairs at a nearby bar to be put away outside certain hours.
6. Mr X reported the bar was breaching this condition regularly. He also reported the owner of the bar is fly tipping in an alleyway behind his home.
7. The Council investigated Mr X’s report. It says officers noted the condition was breached because customers took stacked chairs without the consent of the operator. It also noted:
• no services or drinks were allowed outside the permitted hours; and
• the bar staff introduced regular checks to close the area off and ensure seating is not available outside the allowed hours.
8. The Council confirms the bar operator has been cautioned about the breach and advised it may take action in the future if necessary. It has decided it is not expedient to take enforcement action.
9. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
10. 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.
11. We are not an appeal body. Our role is to review the process by which decisions are made. Having investigated the report of a breach of planning condition, the Council decided it is not expedient to take enforcement action. This is a decision it is entitled to take.
12. The Council confirms it has contacted the bar operator about fly tipping. The operator has advised the items will be removed from the alleyway. Further investigation on this point will not lead to a different outcome.

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Final decision

13. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council decided not to take enforcement action against a breach of planning conditions. Also, we will not investigate the Council’s response to Mr X’s report of fly tipping as further investigation will not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman