Summary: We will not investigate this complaint about the way the Council investigated the complainant’s reports of a breach of planning control and noise nuisance. There is not enough evidence of fault in the Council’s actions and further investigation is unlikely to lead to a different outcome.

The complaint

1. Mr X complains:
• about the Council’s investigation of his report of a breach of planning control at his neighbour’s property
• about the Council’s decision that the noise from the air source heat pump (ASHP) does not meet the threshold of a statutory nuisance; and
• the Council has failed to provide information he has requested.

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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, or
• there is another body better placed to consider this complaint.

(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 the complainant.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Planning authorities can take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission. It is for the council to decide if there has been a breach of planning control and if it is expedient to take further action. Government guidance stresses the importance of effective enforcement action to maintain public confidence in the planning system but says councils should act proportionately.
6. The Ombudsman does not act as an appeal body against enforcement decisions. Instead, we consider if there was any fault with how the decision was made.
7. In this case, the Council considered Mr X’s report that his neighbour installed an ASHP without planning permission. It confirmed the ASHP meets the criteria for such installations as permitted development. As it is permitted development there is no breach of planning control and no enforcement action can be taken against the ASHP.
8. I understand Mr X disagrees and is not satisfied with the Council’s investigation. But the Council was entitled to use its professional judgement to decide it did not have any grounds on which to take enforcement action. As the Council properly considered if it was necessary to take enforcement action, it is unlikely I could find fault.
9. Mr X has also raised concerns about the Council’s consideration of his reports of noise nuisance from the ASHP.
10. In its complaint reply, the Council confirmed a public protection team officer investigated, and considered the noise recordings provided by Mr X. They decided the noise was not a statutory noise nuisance.
11. Although Mr X is unhappy with the Council’s response, we will not investigate this complaint. That is because there is no evidence of fault in how the Council considered Mr X’s noise complaint. Therefore, we cannot question the outcome of its investigation.
12. Section 82 of the Environmental Protection Act 1990 provides that a member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
13. I understand Mr X is concerned the council has not provided information he has requested. It is reasonable to expect him to pursue the matter with the Information Commissioner’s Office (ICO). This is the body which specifically deals with access to information held by public bodies.

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Final decision

14. We will not investigate Mr X’s complaint because
• we have not seen enough evidence of fault in the Council’s actions
• further investigation is unlikely to lead to a different outcome; and
• it is reasonable to expect Mr X to approach the ICO if he believes the Council is withholding information.

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Investigator's decision on behalf of the Ombudsman