The Ombudsman's final decision:
Summary: Mr X complained the Council failed to take appropriate enforcement action against the owner of the property next door to his. Mr X said the property is left empty, in a state of disrepair and has overgrown gardens. The Council was at fault. It failed to deal with Mr X’s enforcement complaint in August 2018 in line with its enforcement policy. It further failed to respond to Mr X at stage 2 of its complaint’s procedure. The Council agreed to pay Mr X £200 for the delay, frustration, uncertainty and time and trouble caused. The Council has now started enforcement action against the property owner.
- Mr X complained the Council failed to take appropriate enforcement action against the owner of the property next door. Mr X said the property is empty and in disrepair. Mr X said the matter has been going on for a number of years and the owner has already failed to comply with a Section 215 notice.
- Mr X said the property is attracting criminal activity and it is causing him distress, anxiety, loss of amenity and time and trouble pursuing the matter.
What I have investigated
- I have investigated the Council’s handling of the matter following Mr X’s most recent complaint in early 2018; however, I have summarised the historic elements of this complaint for context.
The Ombudsman’s role and powers
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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)
- If we are satisfied with a council’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)
How I considered this complaint
- I spoke to Mr X about his complaint and considered information he provided.
- I considered the Council’s response to my enquiry letter.
- Mr X and the Council had an opportunity to comment on my draft decision. I will considered the comments before I made a final decision.
What I found
Section 215 Notice
- Section 215 of the Town and Country Planning Act (TCPA) 1990 provides councils with the power to take steps to require land to be cleaned up when its condition adversely affects the amenity of the area. Councils may serve a notice on the landowner which set out the steps they must take to remedy the situation, and the time in which they must be carried out. The use of Section 215 notices is discretionary.
Planning enforcement complaints
- The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
- Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.
The Council’s enforcement policy
- The Council’s policy says whether or not enforcement action should be taken against a breach of planning control is entirely at the discretion of the Council. It says where it identifies a breach of planning control which it cannot resolve informally, it will make a judgement as to whether it is appropriate to take formal enforcement action.
- The policy says within two working days of the Council receiving a complaint it will register it on its computer system and allocate the matter a priority. It will acknowledge it in writing to the complainant and provide them with the investigating officer’s contact details. The policy says upon receipt of the complaint the investigating officer may decide that no breach has occurred and will notify the complainant that the matter is closed.
- The policy says if the complaint requires further investigation the officer will advise the complainant of the next steps within 5 days of carrying out a site visit.
Compulsory Purchase Order (CPO)
- A CPO is a forced sale of a property to the Council, authorised by the Secretary of State. A Council may use a CPO for various purposes but usually to acquire substandard housing or for local road schemes.
- Government guidance on CPO’s state they should be used as a last resort after the owner has been given every opportunity to carry out improvements voluntarily or in compliance with other statutory notices. The guidance says Council’s should carefully consider how it intends to fund the CPO process. This should include both the source and the timing of the funding.
- Mr X lives in a house on a residential street. Mr X has complained to the Council for a number of years about the condition of the property (the property) next door to his which is privately owned. Mr X said the property is empty and is in state of disrepair. Mr X said the condition of the property and the garden areas are affecting his amenity.
- In 2013 the Council issued the property owner with a Section 215 notice following an inspection where the Council deemed the property was in a poor condition. The notice told the property owner to reduce the height of vegetation and to remove two abandoned vehicles and all household rubbish and litter. The Council also informally required the owner to carry out works to the property. This included making good the brickwork and broken windows, fixing doors, removing broken glass and replacing damaged roof tiles. The property owner appealed the Section 215 notice during 2014 at the magistrates’ court. The court however dismissed the appeal and allowed the notice.
- Following the appeal, the property owner carried out work. The Council re-visited the property again in 2015 and decided the owner had carried out substantial works to the external areas. Therefore, the Council concluded it would not be expedient or sustainable to take any further action with regards to the Section 215 notice.
- Although the property owner had carried out works to the Council’s satisfaction, it remained uninhabitable and in a poor condition. The Council negotiated with the property owner who proposed to convert the property into flats and sell them. However, the property owner failed to stick to agreed timescales and showed no willing to bring the property back into use.
- The Council decided to pursue a Compulsory Purchase Order (CPO) against the property owner. The Council said it had started the preparation for CPO proceedings to secure funding to buy the property which it approved during 2017. However, during 2018 the Council decided to withdraw the CPO action because of budget constraints.
Mr X’s 2018 complaint
- In April 2018, Mr X contacted the Council and reported the property was again in a state of disrepair. The Council carried out a visit to the property. The Council told Mr X that although the previous Section 215 notice remained on the land, it could only take formal action within 6 months of it coming into force. Therefore, it would need a new notice if it decided the property had deteriorated enough to have a detrimental effect on the area. The Council decided at this point that the garden was not overgrown or harming the surrounding area. The Council told Mr X to contact it again in the summer if the property got worse and it would reconsider whether to serve a new Section 215 notice.
- Mr X formally complained to the Council. He said the property was having a detrimental effect on his amenity and the Council had failed to properly enforce the previous Section 215 notice.
- The Council formally responded at stage 1 and reiterated what it had told Mr X when it carried out the site visit. The Council officer from the planning department who responded to the complaint told Mr X to contact him directly in the summer if the garden became overgrown. The officer told Mr X he would receive a separate response about the future of the property and its ongoing emptiness.
- Mr X contacted the Council again in July 2018. He sent it a photograph showing people were fly tipping and leaving rubbish outside the property. The records show the Council contacted Mr X who again informed it that the property was still in a state of disrepair and the gardens were overgrown. In August 2018, Mr X wrote and told the Council that he wished to make a further complaint about the inaction of the Council over the matter.
- Mr X received no response from the Council, so he contacted the Ombudsman about the matter. The Ombudsman told Mr X to formally request his complaint be escalated to stage 2. Mr X did so in January 2019 and the Council wrote to him and said it would respond within 20 working days.
- Mr X wrote to the Council in May 2019 chasing a response to his complaint. He said the property was now in such a state that it was attracting anti-social behaviour and other criminal activity. The Council apologised for the delay and said it would respond as soon as possible.
- Mr X chased the matter again in June 2019 before referring the matter back to the Ombudsman. The Ombudsman chased the matter with the Council between June and July 2019; however, the Council did not send Mr X any further response.
- In July 2019 the Council contacted Mr X to discuss the matter and asked for further photographs of the property and the gardens. Mr X sent the Council photographs as requested. In September 2019 the Council issued the property owner with a new Section 215 notice. That notice required the property owner to carry out works on the garden and land by November 2019. At the time of writing the Council said the property owner has carried out no remedial works in line with the notice. It said it now intends to initiate formal action against the property owner.
- The Council wrote to Mr X in October 2019 and told him that although it had recommended a CPO against the property, it was unable to secure the funding to progress the matter any further.
- Mr X asked the Ombudsman to investigate his complaint.
- Mr X has complained about the property for a number of years which resulted in the Council serving a Section 215 notice on the property owner in 2013. Following an appeal the property owner carried out works to the Council’s satisfaction. I have not investigated this matter because it is out of time and it was reasonable for Mr X to complain to us much earlier.
- Mr X continues to dispute that the work carried out was adequate; however, Section 215 notices are discretionary. Therefore, it was down to the Council’s judgement to decide at the time whether the work carried out was enough to satisfy the notice. The Council can only take formal action on a Section 215 notice within 6 months of the end of the notice period. So further investigation on this point would not lead to different outcome.
- Mr X has said the Council should have used its powers and sought a CPO to purchase the property. As explained above, the Council considered and started the CPO process however it ended it because of financial constraints. Further investigation into this matter would not lead to a different outcome.
- Mr X formally complained to the Council again in April 2018. The Council told Mr X in its stage 1 response that it would take no further action at that stage and asked Mr X to contact it again in the summer. If Mr X was unhappy at this stage it was open to him to escalate the complaint to stage 2 within 20 working days, as advised in the stage 1 response. Therefore, there was no fault in how the Council responded to Mr X at stage 1 in April 2018.
- Mr X however made a further enforcement complaint in August 2018 about the property. Mr X contacted the officer from the planning department as he was advised to do in the stage 1 response. There is no evidence which shows the Council dealt with this complaint in line with its enforcement policy, or its complaints procedure. I have seen no records that the Council responded to this at all. That was fault. It caused Mr X frustration and uncertainty.
- Mr X made another formal complaint in January 2019 about the matter. The Council agreed to escalate Mr X’s complaint straight to stage 2 and respond within 20 working days. To date Mr X has not received a stage 2 response. That is fault. It caused Mr X further frustration, uncertainty and time and trouble pursuing the matter with the Ombudsman.
- The Council served the property owner with a new Section 215 notice in August 2019. However, the records show the Council let the matter drift between August 2018 and August 2019 when it did not act on Mr X’s enforcement complaint in line with its policy. Had the Council properly responded to Mr X’s complaint, on balance, it is likely it would have started enforcement action a year earlier than it did.
- To date, the property owner has not complied with the Section 215 notice. Enforcement action is ongoing and decisions about further action may be made by the Council or the courts. In these circumstances, we should not comment on ongoing planning investigations.
- Within one month of the final decision the Council agreed to apologise to Mr X and pay him £200 to recognise the delay, frustration, uncertainty and time and trouble caused by:
- its failure to respond to his enforcement complaint in line with its policy in August 2018 and;
- its failure to respond to Mr X at stage 2 of its complaint’s procedure.
- I have completed my investigation. The Council was at fault and it agreed to my recommendations.
Parts of the complaint that I did not investigate
- I did not investigate Mr X’s complaint about how the Council dealt with the Section 215 notice it served on the property owner in 2013 for the reasons explained in paragraphs 35 and 36.
Investigator's decision on behalf of the Ombudsman