Summary: We will not investigate this complaint about the Council’s failure to take enforcement action over Mr X’s claims of breaches in planning conditions applied to a nearby supermarket site. There is insufficient evidence of fault which would warrant an investigation.

The complaint

1. Mr X complained about the Council failing to take enforcement action against a nearby supermarket. He says it has beached planning conditions attached to the site to limit delivery times and prevent disturbance to residents by vehicle movements and loading. He wants the Council to take enforcement action which he says is not limited by Ministerial statements about enforcement during the COVID-19 pandemic.

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The Ombudsman’s role and powers

2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)

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How I considered this complaint

4. I considered information provided by the complainant. I have also considered the Ministerial Statements issued concerning planning enforcement related to supply chains since March 2020.
5. I have considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X lives near a supermarket which has planning conditions attached to its deliveries and vehicle movement operations to reduce disturbance to residents. In September 2021 he complained to the Council because he was being disturbed by deliveries and the loading of vans for online delivery outside the conditioned hours.
7. The Council told him that it did not consider enforcement action would be appropriate because the government had issued ministerial statements in March 2020 and July 2021 which advised planning authorities to ensure planning controls are not a barrier to food delivery over the period of disruption caused by the coronavirus. Specifically it said ‘local planning authorities should not seek to undertake planning enforcement action which would result in unnecessarily restricting deliveries of food and other essential deliveries during this period’.
8. The Council told Mr X that it did not believe it should exercise its discretion to seek planning enforcement during the periods covered by the Statements. Mr X argued that the Statements only related to store deliveries and did not include the operation of online delivery vans which was essentially a loading rather than unloading operation. He also questioned whether the content of the online deliveries was strictly limited to food and ‘essential’ goods.
9. The planning enforcement process is a discretionary one. Before taking enforcement action, the Council must be satisfied that such action is the right thing to do (that it is ‘expedient’). Government guidance does not say that councils should take action against all unauthorised development, but a council should take action where serious harm to local public amenity is being caused.
10. In this case the Council decided that the Ministerial Statements supported a view that it would not be proportional to use enforcement powers during the pandemic.
11. In December 2021, the government issued a further Ministerial Statement. This statement superseded all previous ones and advised that local planning authorities should take a positive approach to their engagement with all supply chain stakeholders to ensure planning controls are not a barrier to the supply of all goods and services.
12. If there was any doubt about the extent to which the previous statements covered all forms of delivery, the latest statement has clarified this. This Statement remains in force until 30 September 2022.

Finding

13. It is not the Ombudsman’s role to determine the intention of government guidance or Ministerial Statements. The Council considered that the Statements issued in 2020 and 2021 were advice which it should take into account when contemplating enforcement action. This was reasonable in the circumstances, and we would not question the merits of its decision where there is insufficient evidence of fault.

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Final decision

14. We will not investigate this complaint about the Council’s failure to take enforcement action over Mr X’s claims of breaches in planning conditions applied to a nearby supermarket site. There is insufficient evidence of fault which would warrant an investigation.

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Investigator's decision on behalf of the Ombudsman