Summary: Mr X has complained about how the Council has dealt with his concerns about breaches of planning control. There is some evidence of fault by the Council. I am satisfied the Council’s agreement to pay Mr X £250 is an appropriate remedy for the injustice caused.

The complaint

1. Mr X has complained about the Council’s failure to take enforcement action against his neighbour for a breach of planning control. He is also unhappy with how the Council has dealt with his concerns about excessive noise from the site.

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What I have investigated

2. I have considered events since 2016 as Mr X’s complaints have been ongoing from that date. The final part of this statement explains my reasons for not considering earlier events.

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The Ombudsman’s role and powers

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)
4. 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)
5. 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)

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How I considered this complaint

6. I have considered all the information from Mr X and the Council, including the information available to the public on the Council’s website.
7. A copy of this decision was sent, in draft, to Mr X and the Council. I have considered the comments received in response.

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Background

8. In 2002, the Council received a planning application from Mr X’s neighbour to change an existing stable into four kennels for boarding dogs. The Council considered the application and granted planning permission subject to conditions. One of the planning conditions restricted the hours during which the boarded dogs could be exercised outside.
9. In 2009, Mr X contacted the Council to raise concerns about noise from the site. He said his neighbour had expanded her business and was allowing more than double the permitted number of dogs at the site, which created unbearable noise.
10. The Council looked into Mr X’s concerns and a planning enforcement officer visited the site. The officer agreed that Mr X’s neighbour had increased the number of kennels at the site without planning permission and therefore invited a retrospective application to regularise the development.
11. In 2012, the Council received a retrospective planning application. Mr X objected to the proposal and complained that the noise from the dogs had a significant impact on his amenity. The Council granted planning permission on a temporary two-year basis, subject to a condition restricting the hours the boarded dogs were allowed outside.
12. In 2013, Mr X contacted the Council to complain that his neighbour had not completed the works in line with the approved plans and had built a new structure without permission. He also said his neighbour was breaching the planning conditions as the boarded dogs were being exercised in the paddock outside of the permitted hours. Environmental health officers (EHOs) from the Council also visited the site several times in 2013 and 2014 to look into concerns about noise from the site. In late 2014, Mr X’s neighbour applied to vary one of the 2013 planning conditions and make the permission permanent. The Council considered the application and granted permission.
13. In 2016, Mr X contacted the Council to complain about noise from the site. He said his neighbour continued to breach the planning conditions and the dogs were regularly in the paddock outside of the allowed hours. An enforcement officer from the Council visited the site with an EHO. In May 2017, the Council served a planning contravention notice to Mr X’s neighbour and asked Mr X to complete diary log sheets to record the possible breaches of planning control. Mr X returned the completed log sheets in August.
14. The Council’s EHO continued to visit the site and monitor the noise. In September the EHO decided the noise amounted to a statutory nuisance and served a noise abatement notice under the Environmental Protection Act 1990. However, Mr X’s neighbour appealed the notice at her local magistrate’s court. The appeal was upheld, and the notice was overturned. Shortly after this, the Council’s enforcement officer contacted Mr X and asked him to complete more diary log sheets. Mr X completed the logs, but the Council could not use the evidence as it had not informed Mr X’s neighbour that her activities were being monitored as required by the Regulation of Investigatory Powers Act 2000 (RIPA). The Council then reviewed the enforcement case and decided the planning condition relating to the hours boarded dogs could be outside was unenforceable. Therefore, the matter was referred to the Council’s planning committee to consider if the enforcement case should be closed.
15. The planning committee considered the case. Although it was satisfied the planning condition could be enforced, it agreed the enforcement case should be closed as it was not expedient to take any further action.
16. Mr X is unhappy with this decision. He argues the Council did not properly look into his concerns and says the noise from the dogs is having a significant impact on his home.

What I found

17. Planning authorities can take enforcement action where there has been a breach of planning control. The Town and Country Planning Act defines a breach of planning control and includes circumstances where a planning condition has not been complied with. However, it is for the Council to decide if a planning condition has been breached and what, if any, action is necessary. The Ombudsman does not act as an appeal body for enforcement decisions. Instead we consider if there was fault with how the decision was reached. When there is a suspected breach of planning control, we would expect the council to consider the allegations made and carry out a proportionate investigation into the matter.
18. There is no requirement for councils to take immediate action and government guidance encourages councils to resolve matters without the need for formal enforcement action where possible. Formal enforcement action should only be taken where it is expedient to do so and is often used as a last resort.
19. In this case, the Council decided it would not be expedient or in the public interest to take formal enforcement action. It accepts that the condition, which restricts the hours the dogs are allowed outside, is not precise or reasonable. It says the condition was acceptable when it granted planning permission and although it would not apply the condition now, that does not mean it cannot be enforced. The planning condition only applies to the boarded dogs. The Council says to enforce the condition it would need to distinguish between boarded dogs and the dogs owned by Mr X’s neighbour. To do this it would need to employ intrusive, excessive and costly investigative measures. It has decided it would not be expedient or in the public interest to pursue formal action.
20. I am satisfied the Council properly considered Mr X’s concerns before deciding not to take enforcement action. The case officer visited the site with the EHO. The Council also spoke with Mr X’s neighbour and considered the previous enforcement investigations. The Council’s planning committee also discussed the matter in detail during their meeting before deciding not to take any further action. I understand Mr X does not agree with the Council’s decision but, as it properly considered the matter, I cannot say there is any fault. The Council was entitled to use its professional judgement and the Ombudsman cannot question this decision unless it was tainted by fault.
21. I have also considered the concerns Mr X has raised about how the Council dealt with his concerns. He says he submitted evidence to show his neighbour was breaching planning conditions, but the Council failed to take any action and did not properly communicate with him.
22. The Council’s enforcement policy details how it considers suspected breaches of planning control. The policy says it will acknowledge reports of a breach within three working days and an officer will then visit the site. The policy gives timescales for the officer to carry out a site visit depending on the priority of the alleged breach. As the Council categorised the complaint as priority two, it should have visited the site within five working days.
23. Mr X contacted the Council on 20 September 2016 to complain about his neighbour breaching planning conditions. The Council acknowledged the complaint on 29 September and visited the site on 12 October. It is clear the Council has not responded to the possible breaches of planning control in line with its policy. There also seems to have been significant periods where the enforcement investigation was not being progressed. The case officer contacted Mr X in November and said he was due to attend the site with the EHO and would update Mr X after the visit. However, other than an email from Mr X in February 2017 to ask for an update, there does not seem to have been any further action taken until May. There were also further delays after Mr X returned the completed diary log sheets requested by the Council. Mr X returned the logs in August 2017. The case officer confirmed he had received the information and said he would be in contact once he had considered the logs. However, Mr X did not receive any updates and the case was not progressed again until July 2018. Because of this significant delay, the Council asked Mr X to complete the diary logs again. Mr X did this, but the information could not be used as the Council had not informed Mr X’s neighbour about the monitoring as required by RIPA.
24. I consider the Council’s actions have put Mr X to avoidable time and trouble. He has had to chase it for responses and provide further information to support his claims as the Council had not considered the information he had previously submitted sooner.

Agreed action

25. The Council has agreed to pay Mr X £250 to reflect the time and trouble he has been caused by how it dealt with his complaint. It should make this payment within one month of this decision.

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Final decision

26. There is some fault with how the Council dealt with Mr X’s concerns about a breach of planning control. I consider the Council’s agreement to pay Mr X £250 is a satisfactory remedy for the injustice caused.

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Parts of the complaint that I did not investigate

27. Mr X has also complained about breaches of planning control since 2009 and the Council’s decision to grant temporary planning permission in 2013 and vary the conditions so the permission became permanent in 2014. I have not investigated these matters as the issues occurred more than 12 months before Mr X complained to the Ombudsman and are therefore late. Mr X was aware of these matters at the time and I cannot see a good reason to exercise my discretion to consider these matters now.

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Investigator's decision on behalf of the Ombudsman