The Ombudsman's final decision:
Summary: The Council failed to properly investigate Mr B’s complaints about breaches of planning control. It delayed responding to some of Mr B’s concerns, it failed to respond to his formal complaint and there were failings in the way it decided to close the case. The Council has agreed to apologise and explain to Mr B why it is not currently taking enforcement action. It will also make a payment to Mr B and take action to prevent similar failings in future.
- Mr B complains that the Council has failed to take effective enforcement action in relation to breaches of planning control at the industrial estate where he owns a unit. He says that as a result of this, landscaping has not been completed, a business is storing vehicles by the entrance to the site restricting visibility, and access to his unit is impeded by a business working on cars in the turning area or by its customers parking in the turning area.
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)
- 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 have:
- considered the complaint and the documents provided by the complainant;
- discussed the issues with the complainant;
- made enquiries of the Council and considered the comments and documents the Council has provided; and
- given the Council and the complainant the opportunity to comment on my draft decision.
What I found
- Rather than refusing a planning application, a council might grant permission, but with conditions. These conditions might require additional approvals for specific aspects of the development or might restrict the use of the site.
- The National Planning Policy Framework states that planning conditions should only be imposed where they are ‘necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects’.
- If there is a failure to comply with a planning condition, the council may issue a breach of conditions notice. It can be served on any person who is carrying out or has carried out the development; or any person having control of the land. Any recipient of a breach of condition notice will be in breach of the notice and guilty of an offence if, after the compliance period, any condition specified in it has not been complied with, and the steps specified have not been taken or the activities specified have not ceased.
- A council may decide not to take formal enforcement action, even though there has been a failure to comply with a planning condition. Action should be proportionate to the breach of planning control to which it relates and taken only when it is expedient to do so. In deciding what is the most appropriate way forward, councils should usually avoid taking formal enforcement action where there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area.
Background to the complaint
- In 2012, the Council granted conditional planning permission to a developer to erect 14 lock-up units. Mr B bought one of the units in 2014.
- In April 2017, Mr B emailed the Council about parked cars in the turning area outside his unit. He said that a garage business was working on vehicles in the turning area and storing cars and plant on a grass verge at the entrance to the site. He referred to planning conditions about keeping the turning area free from obstruction and the storing of plant outside of the units. Mr B also referred to a condition requiring the developer to carry out a landscaping scheme which he said had not been done.
- The Council opened a planning enforcement case, visited the site, spoke to the occupiers of some of the units and wrote to the owner of the garage business. It asked them to remove the vehicles from the verge and to keep the turning circle clear.
- Mr B wrote to the Council again in August 2017 because the problem had not been resolved. The Council wrote to the owner of the garage business again. It said that a condition of the planning permission was to keep the turning area free from obstruction at all times and failure to comply could lead to the serving of a breach of condition notice which could result in prosecution.
- Mr B then submitted a formal complaint to the Council in September 2017. He said that he had received some correspondence from the Council about cars parking in the turning area, but the problem had not been resolved. He also complained that the Council had not responded to the other issues he had raised about cars parking on the verge at the entrance to the site, or the developer’s failure to carry out the landscaping scheme.
- The Council then wrote to the owner of the site. It said that it had received complaints about the road/turning area not being kept clear and the landscaping scheme not being implemented. The Council referred to the conditions of the planning permission and said that should it take formal enforcement action, the notice would be served on them as owners of the land. The owner of the site then erected some no parking signs by the turning area.
- Mr B submitted another complaint to the Council in April 2018. He complained about its failure to resolve the issues and its failure to respond to some of his emails and some of the matters he raised.
- The Council wrote to the owners of the site again and asked for further signage to be put in place stating that the turning area needs to be kept clear at all times. It also wrote to the owner of the garage business and said that if obstruction of the turning area continued, it would consult its legal department with a view to taking formal action.
- In the Council’s response to Mr B’s complaint, it gave details of the action it had taken to try and resolve his concerns about the obstruction of the turning area. It said that it did not consider it expedient to take any formal enforcement action regarding the landscaping condition. The Council referred Mr B to Devon County Council, the Highways Authority, in relation to his concerns about vehicles stored on the grass verge at the entrance to the site.
- In the Council’s final response to Mr B’s complaint, it said that it considered the problem was more a site management issue and suggested that the business owners meet to address it. The Council said that it did not consider it expedient nor in the public interest to take any further action.
Condition relating to obstruction of the turning area
- The planning condition states:
“The turning area, parking and access shall be laid out and maintained for those purposes in perpetuity and the turning area will be maintained free from obstruction at all times.”
- The Council took action shortly after Mr B initially reported his concerns in April 2017. It carried out a site visit, spoke to the owners of some of the other units and sent a letter to the owner of the garage business. The Council then failed to take any further action until after Mr B wrote to the Council around three months later, in August 2017. This was fault.
- The Council did not respond to the formal complaint Mr B made in September 2017. This was fault.
- The Council wrote to the owners of the site in September 2017, who erected no parking signs. The Council did not check if this resolved the problem and did not take any further action until it received a second complaint from Mr B around seven months later, in April 2018. This was fault.
- The Council then sent another letter to the owner of the site and the owner of the garage business. Its letter to the garage business said that if obstruction of the turning area continued, it would consult its legal department with a view to taking formal action. The Council did not visit again to check if obstruction of the area continued, and there is no evidence to show that it consulted its legal department. This was fault.
- The Council provided an update to Mr B in May 2018 in response to his complaint. It said that it would continue to monitor the site and would take action if it deemed it appropriate. The Council did not continue to monitor the site and took no further action. This was fault.
- In August 2018, the Council told Mr B that it did not consider it expedient to take any further action and it closed the case. The Council did not provide any justification for its change of view; it clearly considered further action should be taken in May 2018. I am therefore not satisfied that the Council’s decision to close the case was made properly.
- I have considered how the failings identified have affected Mr B. I cannot say whether the Council would have taken formal enforcement action if there had been no fault. But I consider it likely that, had the Council acted proactively and not let the matter drift, the owner of the site and garage business would have made further efforts to resolve the problem. I consider the Council’s failings have caused Mr B frustration and he has been left with uncertainty as to whether the Council would have taken formal enforcement action if there had been no fault.
Condition relating to the landscaping scheme
- Mr B first raised concerns about the developer’s failure to comply with the landscaping condition in April 2017. The Council failed to take any action until after Mr B made a formal complaint in September 2017. This delay was fault.
- The Council did not respond to Mr B’s concerns until May 2018, when it responded to Mr B’s second formal complaint. This delay was fault. The Council then said that it had decided it was not expedient to take formal enforcement action.
- The Enforcement Officer’s notes from the first site visit say that he considered it unlikely to be expedient to enforce the landscaping issue. If there had been no delays by the Council, I consider it would have decided sooner that it was not expedient to take enforcement action. I do not consider it likely that the Council would have taken formal enforcement action. However, the Council’s delay in taking action and responding to Mr B’s concerns would have added to his frustration.
Condition relating to the storage of plant and equipment outside of the units
- The planning condition states:
“No display or storage of goods or materials or plant and equipment shall take place other than within the buildings hereby permitted or within suitably screened areas to be agreed in writing with the Local Planning Authority.”
- Mr B first raised concerns about the parking of vehicles on the verges at the entrance of the site in April 2017. The Council asked the owner of the garage business to remove the vehicles in May 2017, but then took no further action when the business did not do so. This was fault. The Council referred Mr B to the County Council because it does not have any powers itself in relation to highways. It has not provided any evidence to show that it considered whether there was a breach of planning control here, and whether it should take enforcement action. This is fault. Mr B has been left with uncertainty as to whether the Council would have been able to resolve the problem, if there had been no fault here. This has added to Mr B’s frustration.
- After receiving my draft decision, the Council revisited the site. It remains of the view that it is not expedient to take formal enforcement action in relation to the obstruction of the turning area. It has also explained why it considers it cannot take enforcement action in relation to vehicles parked near the entrance to the site. The Council has agreed to:
- write to Mr B explaining why it is not currently taking action in relation to the parked vehicles near the entrance to the site and in relation to the obstruction of the turning area;
- apologise for the failings identified in this case; and
- make a payment of £200 to Mr B.
It will take these actions within four weeks of my final decision.
- The Council has also agreed to:
- review its procedures to ensure cases are actioned proactively and are not allowed to drift;
- remind its officers to fully record the reasons for their decisions, particularly where there has been a change of view;
- investigate why it did not respond to the complaint Mr B made in September 2017 and take action to ensure it responds to all complaints in future.
It will take these actions within eight weeks of my final decision.
- I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice to Mr B. The action the Council has agreed to take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman