Summary: Mr X complained the Council failed to take action against unauthorised development and use of neighbouring land. There was fault causing injustice due to the Council’s delays and lack of proper oversight of the enforcement investigations.

The complaint

1. Mr X complained about unauthorised development and use of neighbouring land. He said the Council failed to comply with a decision by the planning inspector ordering the unauthorised development to be demolished.
2. Mr X also complained the Council failed to take action about the unauthorised use of the land blocking a public right of way.
3. Mr X said the unauthorised development causes noise nuisance and the unauthorised use of the land results in people trespassing on his land.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning Use Classes

9. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind’ or ‘unique’.
10. Planning permission is usually needed to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.

Green belt protections

11. Some areas of land are designated as ‘green belt’ land. Green belt land is subject to enhanced planning controls, the purpose of which is to prevent urban sprawl by keeping the land open.
12. Government guidance says that inappropriate development in the green belt should not be allowed except in very special circumstances, where the harm is clearly outweighed by other considerations.

Enforcement

13. 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.
14. 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.
15. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)
16. 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 decided 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.
17. 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.

What happened

18. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
19. Mr X agreed to sell some of his land to a neighbour several years ago. However, the sale of land was not registered with Land Registry at that time. The neighbour, who I will refer to as N, applied for planning permission to build business premises on the land. To keep the complaint anonymous, I have not named the business or described what it does.
20. While the Council was still considering the planning application, N decided to start building the business premises. The Council later refused planning permission, meaning N’s business premises was unlawful development.
21. The Council issued an enforcement notice, alleging N breached planning control by erecting a building without planning permission. The notice confirms the Council considered the building was inappropriate development within the green belt, failing to demonstrate any very special circumstances that would outweigh the significant harm. The Council also said the overall design, scale, size, bulk and location would be harmful to the character of the area. The enforcement notice required N to demolish the building within three months. It served the notice on Mr X as well as N, as ownership of the land was not clear.
22. N’s solicitor questioned the validity of the enforcement notice. They said the plan accompanying the notice did not make clear which buildings should be demolished, and the building in question is not located within the red line shown on the enforcement notice plan. They suggested N would make a retrospective planning application. They asked the Council to withdraw the enforcement notice.
23. Mr X also said the enforcement notice plan was wrong. He said the unlawful building was not located on his land, it was on land owned by N. Mr X denied breaching planning laws and asked the Council to correct its records.
24. The Council withdrew the enforcement notice. It served a new, amended notice in November 2017. Again, it served this on Mr X as well as N.
25. N appealed against the enforcement notice to the planning inspector in December 2017. They said the plan accompanying the notice is wrong regarding the boundary and position of the building.
26. The planning inspector said this was not a serious deficiency and it was clear N is fully aware which building the notice referred to. The inspector concluded the building is inappropriate development and very special circumstances necessary to justify the development did not exist. The enforcement notice was upheld. However, the appeal succeeded in part, because the inspector felt the three months given for compliance with the notice was too short. They gave N six months to comply.
27. The planning inspector also touched on the issue of land ownership and occupation. They said N’s interest in the land was not secured through an entry in the Land Register. However, there is agreement N has a licence to use the land and occupied it at the date the notice was issued and at the date the appeal was made.
28. N made a retrospective application for planning permission in July 2018. N proposed to demolish part of the unlawful building and alter it to create a single storey building. N also sought permission to change the use of part of the land. The Council refused planning permission in September 2018.
29. N appealed to the planning inspector. The planning inspector dismissed the appeal in April 2019. They said the altered building and the change of use would be inappropriate development in the green belt. They also said the business activity had an unacceptable effect on the safety of users of the public right of way (PROW). They concluded very special circumstances did not exist.
30. Following the unsuccessful appeal, the Council contacted N for assurances they would demolish the building as soon as possible, or it would invite them for an interview over the alleged offence.
31. Mr X’s solicitor wrote to the Council asking for an update on enforcement action in August 2019. They said N suggested they had no intention of complying with the enforcement notice, and had increased business on site. They asked the Council to use its enforcement powers to resolve matters.
32. Mr X’s solicitor wrote to the Council in January 2020, again asking for an update on the enforcement. They understood the Council had interviewed N and they must confirm how they intended to comply with the enforcement notice, or the Council could issue court proceedings.
33. The Council said it only met with N’s solicitor, there was no interview. It gave N three weeks to provide a demolition date but confirmed it had received no response so far.
34. The Council chased N’s solicitor for an update in August 2020. It asked whether N wanted the chance to defend their actions.
35. Mr X made a planning enforcement complaint to the Council in September 2020. He said about 30 cars were stored on N’s land, which is greenbelt land, from March 2020 to present. He said the cars crossed a public footpath to get to this position, and one car was blocking access to the footpath. He said N used the unlawful building on site as a residence and had waste pipes leading to the adjacent motorway banking.
36. Mr X asked the Council for an update on his enforcement complaint in November 2020.
37. The Council told Mr X the case officer had left the Council and it was in the process of reallocating his cases. Due to the complexity of the case, it said it would ask a senior officer to review it.
38. Mr X made a formal complaint to the Council in October 2021, about its planning and PROW services. He said the Council failed to enforce the planning inspector’s decision.
39. The Council responded in November 2021. It said demolition action was put on hold pending N’s appeal and retrospective planning application. It also said there was dispute over ownership of the land which delayed matters.
40. The Council said it met N’s solicitor in January 2020 but with no satisfactory resolution. It continued to correspond with the solicitor, but the case officer then left the Council and it experienced staff shortages and a heavy workload whilst trying to cope with the difficulties of COVID-19. Nevertheless, the Council accepted there had been a significant delay, which it apologised for. The Council said it would pursue demolition as soon as possible.
41. Mr X emailed the Council on 12 January 2022, chasing an update on demolition action.
42. The Council apologised for the delay responding. It said staff shortages and changes to working due to COVID-19 caused delays. It said it appointed another officer to the case, they carried out a site visit and the Council was preparing a formal prosecution, subject to current court backlogs.
43. Mr X emailed the Council in February 2022, setting out the history of issues with the unlawful building, which he said N was living in, and the impact this had on him and his wife. Mr X expressed dissatisfaction with the way the Council handled the enforcement complaint.
44. An internal Council email from April 2022 confirmed it was a long-standing issue ‘that has unfortunately been neglected/overlooked’.
45. The Council contacted Mr X on 25 April 2022. It noted he said he sold the land to N, but he was listed as owner with Land Registry. It said it needed to clarify the ownership status before it could proceed with any action. It asked for evidence of the sale.
46. Mr X said legal ownership was to be transferred after N accepted a settlement offer under a claim in the County Court.
47. Mr X said he no longer had any interest in the land and never had any interest in the unlawful building N built. He said just because the land is not registered in N’s name with Land Registry does not mean it still belongs to Mr X. He said his solicitor could confirm this if necessary.
48. The Council said it was considering information from Mr X about land ownership in terms of the direction of future action. It also pointed to restrictions on staff numbers and COVID-19 working practices which meant it was not always possible for officers to maintain regular dialogue with customers or update them of progress.
49. On the PROW, the Council said an officer dealing with the matter had been off work for some months. It said the service was reviewing Mr X’s concerns and would be looking to progress them shortly.
50. In June 2022, the Council told Mr X it received no reply from N, and was preparing a case file for prosecution. It appreciated Mr X’s patience, but said there had been obstacles to overcome, including N’s non-compliance. It said it would ensure it kept Mr X updated going forward and would provide an update the following week, when it expected to have the case file ready.
51. The Council emailed Mr X on 12 August 2022 advising it was finalising documents which it would send to the Council’s solicitors by 16 August, recommending prosecution. It said the solicitors would then need to check the documents. It also said it would update Mr X with any dates going forward.
52. On 18 August 2022, the Council clarified the prosecution file was over non-compliance with the enforcement notice, not other issues Mr X had complained about. It said it would visit the site the following week to assess those.
53. The Council emailed Mr X about the PROW on 19 August 2022. A new officer picked up the case and apologised for the lack of timely responses and action. They said the Council would be seeking removal of N’s security gates which are on the PROW. They said the Council was also considering whether a diversion of the footpath is feasible. They noted all the land appeared to be registered in Mr X’s name and asked if there was some dispute over this.
54. Mr X emailed the Council for an update on legal proceedings in September 2022.
55. In October 2022, the Council told Mr X it was waiting for a manager to finalise the case statement for the court and secure a hearing date. It said it was collating information to submit along with the statement and it hoped to secure a court date soon. It apologised for the delay.
56. The Council contacted Mr X in November 2022, apologising for the continued delays. It said the case was complex and long running, with a considerable amount of information. It confirmed it had now sent the prosecution file to its solicitors.
57. On 16 November 2022, Mr X provided the Council with a copy of a settlement agreement confirming land transfer to N.
58. Mr X asked the Council for an update on 18 December 2022. He said the delays were unacceptable.
59. The Council emailed Mr X on 6 January 2023 advising the court scheduled a hearing for 6 April 2023.
60. In February 2023, Mr X sent the Council an email from his solicitor, which he said he first sent in November 2022. The email confirms Mr X sold the land in question to N several years earlier, but they were in dispute about its boundary. Mr X’s solicitor confirmed Mr X was still named with Land Registry. However, they said Mr X no longer had any interest in the land. They said he only held the land in trust for N while the court determined the boundary.
61. Mr X wrote to the Council in April 2023. He said it had still not resolved his complaint from October 2021. He said it was more than four years since the planning inspector gave N six months to demolish the building.
62. The Council confirmed receipt of the information Mr X sent about land ownership. It said Land Registry records still show Mr X as owner of the land, and the Council’s solicitors were now reviewing his responses before moving further with prosecution. It said, as things stand, Mr X is registered owner and therefore liable.
63. Mr X’s solicitor contacted the Council in June 2023. They said transfer of additional land from Mr X to his neighbour was completed on 31 May 2023. They said the unlawful building is on the additional land and enclosed a plan confirming this.
64. The Council confirmed it was no longer taking action against Mr X over non-compliance with the enforcement notice.
65. Mr X wrote to the Council on 7 July 2023. He said it was now 20 months since his enforcement complaint and they were no further forward with the demolition of N’s unlawful business premises. He said the Council previously told him it was reviewing the case after his solicitor provided details of the land transfer to N. He said the transfer was completed 31 May 2023, but the Council did not respond to his request for an update in June. Mr X referred to a court hearing date of 24 July 2023 but said he contacted the court and it had received nothing from the Council, so Mr X assumed there are more delays. Mr X also referred to the PROW and said N’s gates remained padlocked, preventing access.
66. The Council emailed Mr X confirming the hearing on 24 July was still scheduled to go ahead. It was not aware of any adjournment request.
67. Mr X emailed the Council about N’s continued obstruction of the public footpath running through their land. Mr X said he had to erect fencing to stop walkers accessing his field and to enclose the sheep he now has. Mr X also said the padlock to N’s gate remains locked, despite the Council asking N to unlock it so walkers can use the footpath.
68. The Council said an officer visited the site two weeks ago and could follow the footpath, albeit with obstructions to its line. They said the padlocks were not in place at the time of their visit. The Council referred to the issues Mr X had with land title ownership, being considered by the courts, and said this may affect the Council’s approach to the obstruction.
69. Mr X gave the Council a copy of a document confirming land ownership had now been settled, he confirmed this was sent to the Land Registry in May 2023, but it is running behind. Mr X said he erected the fence because they had several instances of walkers accessing their land due to N’s gates being padlocked.
70. The Council said at its recent visit it found obstructions to the footpath on Mr X’s land as well as N’s. It said it was looking at informal solutions and would welcome the opportunity to meet on site.
71. Mr X emailed the Council in September 2023, providing a copy of an appeal decision from the planning inspector dated April 2019. Although the appeal was about the change of use and unauthorised building, the inspector touched on the PROW and concluded N’s use of the site caused an unacceptable effect on the safety of users of the PROW. They also said the PROW was not readily accessible at the time of their visit.

My investigation

72. The Council said decisions to enforce planning breaches are for the Council, they are not ordered by the planning inspector as Mr X suggests. Compliance is down to the recipient of the notice. The Council said the case has been long and protracted due to various legal issues, but the case is still ongoing.
73. The Council said it took appropriate enforcement action, but prosecution was delayed by complications serving the notice, subsequent appeals, and a planning application.
74. The Council told me the hearing scheduled for 11 November 2023 was adjourned until March 2024, due to ill health.

Analysis

75. I can appreciate Mr X’s frustration and distress at the situation. N breached planning rules and then seemingly ignored the enforcement notice and subsequent decisions by the planning inspector.
76. However, that was not the fault of the Council. The Council responded to the breach and took the necessary enforcement action. Unfortunately, it was met with resistance at each stage by N.
77. This has been a difficult case for the Council. It encountered initial issues over some details on the enforcement notice, leading to it having to withdraw and re-issue the notice. It then faced a challenge from N over the site boundary and location of the unlawful building. Those issues were settled by the planning inspector, who dismissed those elements of the appeal.
78. After the planning inspector’s decision in 2018, N had six months to demolish the unlawful building. However, N then made a retrospective planning application. This had the effect of placing the requirements of the enforcement notice into abeyance while the Council determined the planning application.
79. The Council refused planning permission, but N again appealed. The second appeal to the planning inspector was dismissed in April 2019.
80. N did not make any further planning applications, meaning the Council was free to pursue prosecution when it became clear N did not intend to comply with the enforcement notice. It took the Council until November 2022 to complete a prosecution case file to send to its solicitors. That is a significant delay.
81. I am mindful of the impact of the COVID-19 pandemic, which affected staffing levels and working practices, and which resulted in an unavoidable reduction in service capacity and delays. However, that would not account for delays of over three years. I found the Council was at fault for periods of inactivity and a lack of proper oversight of the enforcement case.
82. The Council also faced issues over the ownership of the land, meaning it served a copy of the enforcement notice on Mr X and his wife as well. It was distressing for Mr X and his wife to receive a copy of the enforcement notice. They had no access to the land and no control over it, so they could not do anything to ensure compliance with the enforcement notice. However, I found the Council had legitimate concerns about ownership of the land, and it had to ensure it got this right. The court did not formally confirm the transfer of the land from Mr X to N until May 2023. At that point, the Council dropped any potential action against Mr X. I do not criticise the Council over its approach and found no evidence of fault in this regard.
83. The enforcement case is currently with the court, who are now responsible for the timetable. The Council is not at fault for any delays since it filed the prosecution with the court at the end of 2022. It is now up to the court to decide the outcome.
84. The Council encountered similar staffing issues and delays over Mr X’s complaint about the PROW. Again, I found a lack of proper oversight by the Council contributed to the delays. The Council is now looking at informal means of resolving the problem. This is a course of action the Council is entitled to take. It is not under a duty to take formal action. It is also possible the court’s decision, when it arrives, about N’s unlawful building and associated business activities on the land, will resolve the issues surrounding the PROW.

Injustice

85. I found the unlawful development has not in itself caused Mr X any significant harm in planning terms. The refusal of planning permission, and the reason for the enforcement notice, was about development on the green belt, not about impact on neighbouring amenity.
86. Mr X mentioned some noise nuisance, but there is no evidence of this, and he did not raise any complaints about this with the Council. Mr X also said N used the building for residential purposes and sometimes entered the site late at night using the shared access. This meant Mr X or his wife had to leave his gates open and stay up late to close them. The Council did not find evidence N used the building as a dwelling when it visited the site, and N is free to enter their land when they choose. The Council told Mr X it could not issue an enforcement notice over this, because the building itself was unlawful. The Council had already issued the relevant enforcement notice. Mr X has now installed electric gates, so this is no longer an issue.
87. Mr X suffered general distress over the Council’s delays carrying out enforcement action, its lack of regular updates, and its lack of full or timely responses to his complaints.
88. When the Council started enforcement action, this raised Mr X’s expectations that the matter would soon be resolved. The continued delays and lack of updates caused frustration and uncertainty. This is his injustice.
89. The Council was also responsible for delays investigating the issues with the PROW. However, I did not see evidence Mr X suffered any further significant injustice here. The main injustice appears to be suffered by members of the public trying to use the footpath, as recognised by the planning inspector. There was some inconvenience for Mr X when people walked on part of his land, but I found the footpath also goes through his land in places, so I do not consider this is significant. Mr X’s injustice comes from the frustration he suffered at the Council’s lack of action or updates.

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Agreed action

90. Within four weeks of my final decision, the Council will:
• Apologise to Mr X and his wife for the significant delays and lack of timely progress identified in its handling of the enforcement case. Its apology will acknowledge the frustration and uncertainty this caused.
• Pay Mr X £200 to recognise the avoidable distress its delays caused.
91. Within three months of my final decision, the Council will:
• Review its case management processes for its planning enforcement services, ensuring it has sufficient alerts after periods of inactivity, and sufficient management oversight of case progression.
• Review the issues with the PROW and confirm what action, if any, it proposes to take.
92. The Council should provide us with evidence it has complied with the above actions.

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Final decision

93. I have completed my investigation. There was fault causing injustice due to the Council’s delays and lack of proper oversight of the enforcement investigations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman