Summary: Mr B complains the Council has not taken enforcement action against a neighbouring business for breach of planning enforcement notices and statutory nuisance. He says the there are regular fires, excessive noise and toxic fumes coming from the business, which have a significant impact on people living close by. At this stage, we find the Council is at fault in how it carried out its planning enforcement and environmental health investigations and communicated its findings to Mr B.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council has not taken enforcement action against a business that neighbours his property. He says the business has breached planning enforcement notices the Council made several years ago. It is also causing significant nuisance to him and other neighbours due to fires causing smoke and acrid fumes, together with regular noise.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I considered the information Mr B provided and spoke to him about the complaint, then made enquiries of the Council.

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What I found

Law and Guidance

Planning enforcement

6. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
7. 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.
8. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
9. 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 July 2021, paragraph 59)
10. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.
11. However, the time-limits set out above do not prevent enforcement action after the relevant dates in certain circumstances. These include:
• the taking of “further” enforcement action in respect of any breach of planning control within 4 years of previous enforcement action (or purported action) in respect of the same breach. This is where the earlier enforcement action has been taken, within the relevant time-limit, but has later proved to be defective, so that a further notice may be issued or served, as the case may be, even though the normal time-limit for such action has since expired. This is known as the “second bite” provision.
• where there has been deliberate concealment of a breach of planning control, local planning authorities may apply for a planning enforcement order to allow them to take action after the time limits have expired
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.
14. Section 173(11) of the Town and Country Planning Act 1990 says that where
• a planning enforcement notice in respect of a breach could have required any buildings or works to be removed or any activity to cease but does not, and
• all the requirements of the notice have been complied with

planning permission shall be treated as granted for the parts the enforcement notice did not address.

Statutory nuisance

15. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
16. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
17. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.
18. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
19. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.

Background

20. Mr B lives close to a site that the Council has determined is being operated with a mixed use. The uses include a landscaping business and garden nursery. The owner also deals in scrap metal and the Council has identified a significant amount of waste on site.
21. The site has a complex planning history. The first available planning records for the site are from 1993/94. The records suggest the owner at that time constructed a building to store ‘plant and machinery’. The owner applied for planning permission for a change of use, from agriculture to a mixed use of agriculture and storage of plant and machinery. The Council declined the application and issued two enforcement notices:
• Notice 1 – cease the use of the land for the storage of plant and machinery.
• Notice 2 – dismantle the building and remove all material from the land
22. The owner appealed the decision not to award planning permission and the enforcement notices, to the Planning Inspectorate. The Inspectorate’s decision notice said the land was being used as partly as a garden and partly as a landscaping business. It said the limited level of equipment needed to conduct the business did not justify the harm caused by the building and use of land for storage. It said this did not prevent the owner from bringing equipment on to the site when needed in connection with the businesses. The Inspectorate dismissed the appeals.
23. In 2011 the Council served two further enforcement notices on the owner of the site:
• Notice 3 – Demolish a building and a poly tunnel (both shown in photographs) and remove all resulting materials from the site. Thereafter refrain from erection on the land of the building or poly tunnel shown on the photographs.
• Notice 4 – Remove all caravans, former shipping containers, building materials, builders plant and machinery, and motor vehicles from the land. Discontinue the use of the land for the stationing of caravans for residential purposes, stationing of former shipping containers, storage of caravans, storage of building materials, storage of builders’ plant and materials and storage of motor vehicles.
24. The owner appealed the enforcement notices but again the Planning Inspectorate dismissed the appeals.
25. In mid-2021 Mr B complained to the Council about the site. He said there was regular noise from heavy machinery and fires, which gave off acrid smoke. He also said there were buildings on site that did not have planning permission and were subject to enforcement notices for removal. An environmental health officer visited the site in July 2021. The officer established the heavy machinery noises were from the use of an excavator sieving top soil, in connection with the landscaping business.
26. In August 2021 the Council wrote to the owner of the site to say they were in breach of the enforcement notices currently in place on the land.
27. In October 2021 Mr B complained to the Council that problems were ongoing and it had not yet made a decision. He said there was a clear breach of the enforcement notices. He also attached a log of noise and fires at the site.
28. The planning enforcement team carried out a site visit on 14 October 2021. In December 2021 Mr B alerted the environmental health team of a fire at the site. An officer visited and witnessed the fire. Mr B reported a further fire in February 2022. The Fire Service attended one of the fires and found that garden waste and vegetation was being burned. The Council said it intended to carry out a joint site visit between the planning enforcement and environmental health teams.
29. In March 2022 Mr B sent further videos and photographs of fires at the site, together with a log of noise and fires. The Council carried out a further site visit. The Council then sent a response to Mr B that closed the case in April 2022. The letter said there was not a breach of planning conditions but did not give reasons.
30. In May 2022 Mr B made a stage two complaint. The Council’s complaint response said the investigation was ongoing. Mr X submitted extensive information to the Council along with photographs of the site.
31. The Council carried out a site visit in July 2022. It drafted a planning history report. It also produced a ‘methodical approach’ document, which included further details of its findings. I have outlined the details in the ‘Findings’ section of this statement. The report said the environmental health investigation was ongoing.
32. The Council carried out a further site visit in September 2022. The Council decided that there was no breach of the Enforcement Notices but found two additional buildings had been built on the site within the last four years.
33. In December 2022, the Council wrote to Mr B and told him it had reviewed the enforcement notices and decided there was no grounds for the Council to pursue the matter. The Council said it believed the majority of the requirements set out in the notices had been legally complied with so would not take any further enforcement action.
34. The Council said it discovered two unauthorised structures on the land which were not subject to the previous enforcement notices and did not have planning permission. The Council said it had written to the owner of the land and asked them to remove these structures.
35. In relation to a statutory nuisance the Council said its Environmental Health Team found insufficient evidence of a statutory nuisance regarding burning.
36. In March 2023, Mr B complained again to the Council about the way it had considered his reports about the site. Mr B said he had requested a meeting with the planning team to discuss his concerns but this was refused. Mr B said there are still items on the site which should have been removed in accordance with Notice 4. Mr B acknowledged while the Council told him in December 2022 there were no grounds to pursue this further, it had not explained the basis of this decision to him.
37. The Council provided its final response to Mr B’s complaint in April 2023. The Council said:
• It had not received further reports of noise and fires for some time from Mr B.
• There was currently machinery on the site but it was not possible to know whether this was subject to the enforcement notices. The Council said some machinery would be necessary to carry out a landscaping business at the site and it has decided that it would not be reasonable to take further action to remove the machinery.
• It would update Mr B in relation to the two structures which were not subject to the previous enforcement notices.
38. In May 2023, the Council served the site owner with another enforcement notice requiring them to remove the two unauthorised buildings it had found at the site.

Findings

39. Our role is to review the process by which decisions are made and if we find fault, to determine whether it caused an injustice to the individual complainant. This means we cannot decide whether or what enforcement action the Council should take, we can only consider how it made its decision.
40. There are several planning enforcement concerns, alongside a statutory nuisance complaint. I have separated my findings into each individual item of the planning enforcement decision, followed by the overall handling of the planning enforcement and statutory nuisance complaints.

Buildings

41. Notice 2 in 1994, Notice 3 in 2011 and Notice 5 in 2016, all required the demolition of buildings on site that did not have planning permission.
42. The Council found the buildings that Notice 2 and Notice 3 related two were removed. Since then, several other structures have been built (“Buildings A to F“).
43. Mr B says one of the buildings on site now is the same as one that Notice 3 referred to, with slight modifications. The Council says they are different buildings. From the photographs it seems clear they are different structures, so I cannot question the Council’s findings on this point. The enforcement notice prevented the future construction of the same building but not any other buildings at all. Any future development would need to comply with normal planning rules. It was for the Council to consider whether any developments had planning permission or were permitted developments, and if not whether to take enforcement action.
44. The Council’s investigation obtained information that the buildings were on the land for the following amount of time:
• Building A – 4 to 5 years
• Building B – 2 years
• Building C – 2 years
• Building D – 10 years
• Building E – 10 years
• Building F – Unknown
45. Therefore, some of the buildings may have been there so long as to be outside the time limit for planning enforcement action, but others would not be immune. It would be for the Council to decide which are immune based on its investigation, and whether it was expedient to take enforcement action in relation to any buildings that breach planning rules and are not immune.
46. Following on from its investigation in 2022, the Council decided it would take not further action in relation to the buildings on the site and that no breach of the Enfircement Notices, which had been issued in the past, had occurred. I have not found the Council at fault for coming to this decision, however it was at fault for the time taken to conclude its investigation and for not providing Mr X with reasons as to why there was no breach, in its decision on 15 December 2022.
47. In 2023, the Council opened another investigation into the buildings on site and decided the two structures were a breach of planning permission. The Council issued the owner with a new enforcement notice to remove the structures. I have not found the Council at fault for how it came to that decision.

Plant and Machinery

48. Notice 1 instructed the owner to cease the use of land for storage of plant and machinery. Notice 4 required the removal of all builders’ plant and machinery and to discontinue the use of the land for storing the builders’ plant and machinery.
49. The Council recorded that Notice 1 did not take action against the use of the land for a landscape gardening business or garden nursery. It said therefore the use of land for this purpose was granted planning permission in accordance with s173(11), as outlined at Paragraph 14 and that some plant and machinery was necessary for the purpose of this business. It recorded that it could not prove the plant and machinery that was currently on site was the same as referred to in Notice 4.
50. On balance I find fault in how the Council considered Mr B’s complaint about plant and machinery on the site.
51. The site may have de facto planning permission for use as a garden nursery and landscaping business. However, the Planning Inspectorate appeal decision from 1994 was clear that only a limited amount of plant and machinery would be needed for this, and it did not justify storing that machinery on the land, considering the harm it caused to the local area. This was supported by a further Planning Inspectorate decision in 2012. Both decision referred to the fact that the plant and machinery on site could be used for both the landscape gardening business and for work off site, but still required it not to be stored on site. Two enforcement notices, 15 years apart, expressly required the owner to stop storing plant and machinery on site. Therefore, the question the Council needed to consider was whether the owner was currently storing plant and machinery on site and if so whether this breached the enforcement notices.
52. The Council did say in response to Mr B’s complaint there was no evidence that the machinery and plant on site were those that were subject to the previous enforcement notices. Furthermore, the plant and machinery that the Council found on the site was consistent with the lawful use of the site as a landscape business so no further action would be taken. I am satisfied on balance that the Council has made a decision on whether this is a breach and has explained its rationale to Mr B.

Shipping Containers

53. Notice 4 said the owner must remove any shipping containers and discontinue use of the land for stationing shipping containers.
54. The Council recorded that it may not be possible to enforce against a shipping container being on site. This was because a shipping container was there in 1994 and the enforcement notices did not require its removal. Therefore, it may have planning permission in line with s173(11). At the time of making that record the Council did not have access to the Planning Inspectorate appeal decision from 2011/12. The Council’s further enquiries found the current container had been on site for five years.
55. The Planning Inspectorate decision from 2011/12 rejected the claim that the use of the land for storing a shipping container became lawful by virtue of s173(11). Therefore, the Council cannot rely on s173(11) in not taking enforcement action. I understand the Council did not have sight of that information at the time, but it did then find the appeal decision. I cannot see evidence the Council has changed its view based on that new information.
56. The Council also recorded that it has no evidence the shipping container on site now was the same one referred to in Notice 4. However, that is only relevant to the removal of the previous shipping container. Notice 4 also expressly said the owner should stop using the land to station shipping containers.
57. In response to our enquiries the Council said the shipping container on site was being used in connection with the lawful use of the site so there was no breach. While the Council said it told Mr B on 15 December 2022 it would take no further enforcement action, it did not specify this included the shipping containers or explain to Mr B how it had come to the decision that the shipping container was lawful. This was fault.

Caravans

58. Notice 4 required the removal of all caravans and to discontinue stationing caravans for residential purposes, or to store caravans.
59. The Council has recorded that the caravans on site now are not the same as those removed following Notice 4. It did not find evidence of residential use of the caravans. Therefore it could not see evidence of a breach. It also recorded that two caravans were on site for about two years. I do not fault in how the Council’s considered this point.
60. Notice 4 referred to removing specific caravans. However it also told the owner to cease storing caravans on the site. The Council needed to consider whether the caravans currently on site amounted to a breach of the enforcement notice.
61. While the Council told Mr X in December 2022 it was not taking further action in relation to the enforcement notices, it did not provide him with any details about why the caravan on site did not amount to a breach. Therefore, I find fault.

Motor Vehicles

62. Notice 4 required the owner to cease use of the land for storage of motor vehicles. The Council has recorded that it is not clear if the vehicles currently on the land are the same as those the 2011 notice related to. However, I cannot see evidence the Council reached a conclusion, or considered whether the land was currently being used for storing motor vehicles, and if so whether this breached the enforcement notice.
63. Council has said in response to our enquiries that during its visits it did observe two motor vehicles, but they belonged to the owners. The Council said these motor vehicles were in current use and parked at the site and not being stored there. While this is evidence of the Council’s decision making not to take enforcement action, I cannot see that the Council told Mr B this information. In its email on 15 December 2022 it did not mention anything specific about the storage of motor vehicles at the site. This was fault.

Building materials

64. Notice 4 required the removal of all building materials and to cease use of the land for storage of builder’s plant and materials.
65. The Council’s investigation found there was a large amount of material on site, including pallets of materials and waste. The Council has again recorded that if these are not the same as the building materials Notice 4 referred to, then they are not covered by the same notice. However, again, Notice 4 required the owner to stop using the land to store such materials.
66. In response to our enquiries the Council said the building materials it saw were materials that were used for the carrying out of the lawful use of the site. While this is evidence of the Council’s decision making, I cannot see that it communicated this to Mr B. This was fault.

Planning enforcement overall

67. I find fault with the Council’s overall approach to the planning enforcement investigation.
68. The site has been subject to four enforcement notices, with the intention of preventing development of the land or a change of use from agricultural. A planning application was also rejected, and all four notices were upheld on appeal. On the face of it, the Council’s investigation has identified that much of what the enforcement notices referred to, like storing plant and machinery, vehicles, a shipping container and building materials, is now present again on the land.
69. The Council has highlighted what it considers may be deficiencies in the previous enforcement notices. But there is also a lot about the enforcement notices that is clear. The owner was instructed to stop using the land to station or store shipping containers, building materials, plant and machinery and motor vehicles. I cannot see evidence the Council has properly explained to Mr B whether the presence of similar items on the site amounts to a breach of the enforcement notices.
70. There have also been significant delays in the Council’s investigation. Mr B first complained in mid-2021. The Council sent him a letter in April 2022 that said it was closing the case. But it gave no reasons for why it had not found any breaches of planning rules and the Council has not provided evidence of how it investigated or reached its conclusions. It then carried out further investigations, and in December 2022 told him it would not be taking any further action in relation to the Enforcement Notices, however the Council did not provide him with reasons or rationale for its decision. This caused distress and uncertainty.

Statutory nuisance

71. The records suggest the environmental health team have visited the site on several occasions, alongside the planning enforcement team, and informed the owner not to set fires. Mr B told me that since then the fires have continued but he stopped reporting them to the Council but the noise was ongoing. He has provided lengthy logs to the Council about noise. He also said the Council had told him it would fit a microphone to monitor the noise, but this did not happen.
72. There a very few records of any action taken by the environmental health team. I cannot see evidence the Council has reached a decision on whether the noise causes a statutory nuisance. The Council said in response to our enquiries that an Environmental Health officer did not think the noise was a statutory nuisance, however it also agreed to get in contact with Mr B following his last complaint in March 2023. It is not clear whether this happened. I therefore find fault in the Council’s statutory nuisance investigation.

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Recommended action

73. I recommend that within a month of this decision the Council:
• Apologise to Mr B for the fault in its planning enforcement and statutory nuisance investigations
• Arrange to meet with Mr B to discuss with him how the Council decided each aspect he reported was not a breach of the Enforcement Notices. This will give the Council an opportunity to clearly set out to Mr B why it decided not to take further enforcement action. This will also allow Mr B the opportunity to discuss with the Council any current issues with the site and the Council to consider whether any further investigations are warranted. Following this meeting the Council should draw up an action plan and send this to Mr B setting out what was discussed at the meeting and any matters that it is going to carry out further investigation into.
• Pay Mr B £200 to recognise the distress caused by the fault in its initial investigation and the overall delay in making decisions.
74. The Council should provide us with evidence it has complied with the above actions.

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Draft decision

75. Subject to further comments by Mr B and the Council, I intend to close this case on the basis the Council is at fault in ow it carried out its planning enforcement and environmental health investigations.

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Investigator's decision on behalf of the Ombudsman