Summary: X complained about the Council’s handling of a planning enforcement complaint that remains unresolved after several years. We did not continue our investigation now because the planning process is ongoing. X can come back to us again if they remain dissatisfied at the end of that process, or if there is evidence of unreasonable delay.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s handling of a planning enforcement case that has been ongoing for several years.
3. X said that the Council’s failure to resolve the matter has meant their privacy in their home and garden has been affected for longer than necessary.

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The Ombudsman’s role and powers

4. 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:

• we cannot show that any alleged fault has caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

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

5. 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)

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How I considered this complaint

6. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
7. I gave the Council and X an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

Planning applications

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Planning enforcement

12. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
13. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Planning appeals

14. Planning applicants and/or developers may appeal to the Planning Inspectorate in certain circumstances. Planning inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

15. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

What happened

16. Several years ago, X’s neighbour had planning permission to develop their (the neighbour’s) land. The neighbour raised the land levels in their garden and the Council’s enforcement officers decided this was a breach of planning control. The Council served an enforcement notice.
17. The neighbour appealed against the enforcement notice to the Planning Inspectorate, who did not uphold their appeal. The matter went back to the Council to enforce.
18. A few years passed but the matter remained unresolved. Earlier this year, a new planning enforcement officer took over the case. The enforcement officer visited the site to assess the situation. Soon after, the neighbour submitted a new planning application, which showed a new design for the boundary fences. This application has not yet been decided.

My findings

19. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
20. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
21. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
22. I should not investigate this complaint further now, and my reasons are as follows.
23. The Council’s investigation has been ongoing for several years, and unless it can show there were no periods of drift or unreasonable delay during that period, it is possible that further investigation may find evidence of fault. However, before we could begin any such investigation, we would have to consider its scope in terms of our time limits. If we were to find fault, we would then need to show it is likely to have caused a significant injustice to the complainant.
24. At the moment, the planning process is ongoing, and I cannot know the outcome. If the Council decides to refuse the application or approve it subject to conditions, new appeal rights will open and could be used by the developer. Once the application is decided, and if a breach of planning control continues, the matter will go back to its planning enforcement officers, who will then decide what action is justified.
25. Until the planning decision-making process has run its course, along with any time period for exercising a right of appeal or other legal challenger, we cannot begin to assess the extent of any injustice any potential fault may have caused. Because of this, I should end my investigation now.
26. X can come back to us again if they remain dissatisfied with the Council’s actions when the planning process has ended. However, as I have explained above, our powers to investigate are subject to time limits, and while we have some discretion, the reasons why X did not come to us earlier would need to be explored in more detail. X can also come back to us if there are long periods of delay/inactivity which the Council cannot reasonably explain.

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Final decision

27. I ended my investigation because the planning decision-making process is ongoing. X can come back to the Ombudsman again if they remain dissatisfied at the end of the planning process, or if there is evidence of unreasonable delay in taking enforcement action.

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Investigator's decision on behalf of the Ombudsman