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North Devon District Council (18 015 673)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 12 Nov 2019

The Ombudsman's final decision:

Summary: The Ombudsman upholds Mr X’s complaint. The Council delayed in opening an enforcement investigation. It also communicated poorly and failed to act on Mr X’s environmental health concerns. This frustrated Mr X and left him unsure how the Council had considered his concerns. The Council will apologise to Mr X, provide a service from its environmental health team and issue reminders to staff about information sharing, the investigation process, and timely communication.

The complaint

  1. Mr X complains the Council has failed to take enforcement action against unauthorised occupation of a caravan in a field near to his home. He also complains about noise nuisance and environmental health concerns which he says the Council has not investigated. Mr X says the caravan overlooks his home, its occupation harms an area of outstanding natural beauty and puts his business and family’s well-being at risk.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. I have considered the complaint made by Mr X and the documents he provided.
  2. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
  3. I gave Mr X and the Council an opportunity to comment on my draft decision and I considered their responses.

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What I found

Background

Planning legislation and case law

  1. Planning permission is required to develop land. Planning permission may be granted subject to conditions about the development and use of land.
  2. The courts have decided when planning permission is granted for a certain use, any limitation on how that use is to be exercised should be imposed by a condition.
  3. Planning authorities may take enforcement action where there has been a breach of planning control. The Town and Country Planning Act 1990 defines a breach of planning control as:
    • carrying out development without the required planning permission; or
    • failing to comply with any condition or limitation subject to which planning permission has been granted.
  4. The National Planning Policy Framework says, “Effective enforcement is important as a means of maintaining public confidence in the planning system.”
  5. Enforcement action is discretionary. Councils should only take enforcement action if it would be a proportionate response. Councils should consider what harm the unlawful development causes to the public. If a council decides it would approve an application for the development, further enforcement action is not likely to be in the public interest.

The Council’s enforcement plan

  1. The Council’s ‘Compliance and Monitoring Plan’ sets out its approach to enforcement.
  2. The plan says the Council intends to investigate all planning related concerns about unauthorised development, and its actions will be proportionate to the scale of the breach. It says it will share information with other council services, including environmental health.
  3. On receiving a request for investigation, the Council says it will assess whether the concern is a planning issue. It will refer any non-planning issue to the appropriate body and check records to see what permission the site has. It will also send an acknowledgement within three working days telling the requestor who will be dealing with the matter. Finally, it will schedule a site visit.
  4. The plan sets out the possible outcomes of an enforcement investigation. These include:
    • A breach is identified but the works are minor and acceptable. If the Council decides it is likely to grant planning permission (had an application been submitted) it will advise the owner that planning permission is required but it will not take any further action.
    • A breach is identified and the works may be acceptable. The planning officer may decide that works would be acceptable but only by imposing a specific condition on the grant of planning permission. In these circumstances the Council will ask the owner to submit a planning application to resolve the breach.
    • An unacceptable breach. If there is a breach which causes harm, the Council will negotiate with the owner to take remedial action. If the harm caused by the breach is significant, the Council will consider taking formal action such as issuing an enforcement notice.
  5. The Council aims to tell the person raising the concern of its decision or provide an update within eight weeks of acknowledgement. It aims to provide an update every eight weeks until no further action is needed.

What happened?

  1. Many years ago, planning permission was granted to site a caravan in a field near Mr X’s home for around six months of the year. There were no conditions placed on the reason for occupying the caravan or where the caravan should be sited within the boundary of the field.
  2. Over the years, previous and current owners made successful applications to extend the time the caravan could be occupied. The last application, made in 2014, extended occupancy to 11 months of the year. No conditions were put in place to restrict what the caravan could be used for or who could stay in it.
  3. In early 2017, Mr X told the Council the caravan was occupied in breach of the planning condition. The Council replied in August 2017. It said if there was a breach of the authorised occupancy period, the Council would need to consider whether it was expedient and in the public interest to take enforcement action. The Council said it could not identify any material harm arising from the extended use of the caravan to justify further intervention through enforcement action. It invited comments from Mr X about the adverse impact of year-round occupancy. The Council did not open an enforcement investigation.
  4. Mr X replied to the Council outlining his concerns about the 2014 planning decision. The Council did not reply until December and then again in January 2018. It said there was no condition preventing residential occupation of the caravan for 11 months of the year. It reiterated its previous position that it would need to consider whether any action on occupation during the twelfth month would be expedient.
  5. Mr X replied setting out how the development affected him. He said it overlooked his home and devalued his property and business. He raised concerns about sewage and waste disposal at the site and a generator running continuously.
  6. There is no evidence the concerns about sewage, waste disposal, or generator noise were brought to the attention of the Council’s environmental health team. There is no record of the Council responding to Mr X’s concerns about privacy and property value.
  7. The Council opened an enforcement investigation about a trailer on site in December 2017.
  8. The Council carried out site visits in January and February 2018 to check development at the site complied with existing planning permissions and to request the removal of the trailer. The owners told the Council they were living off-site to comply with the occupancy restrictions.
  9. Due to non-compliance with an informal request to remove the trailer, the case was referred to a planning officer to decide whether an enforcement notice should be issued.
  10. In June 2018, Mr X contacted the Council again to raise concerns there was a business being run from the site. He said there was a motorhome and trailer on site which were in breach of planning conditions. He said the spray paints used on site may be hazardous. H ewHe raised the issue of noise from the generator again. The Council told him it had opened an enforcement investigation. There is no evidence the Council shared his concerns with its environmental health team.
  11. Mr X complained to the Council about its handling of development on the land. The Council sent its final response in October 2018. The response said the Council had not seen evidence of any material harm arising from the use of the caravan all year to justify further enforcement action. It did not say what facts it considered when making this decision.
  12. Mr X complained to the Ombudsman in January 2019.
  13. In February 2019, the Council considered carrying out an unannounced site visit to check if the occupancy condition on site was being complied with. It has not provided evidence of whether this visit went ahead.
  14. The Council also sought legal advice about whether the occupancy restrictions were enforceable. The advice given was in line with paragraph nine of this decision, that is that limitations placed on planning permission must be specifically stated in the conditions themselves.
  15. The Council opened an enforcement investigation about occupancy of the site in March 2019 and closed it the following day. The enforcement instruction sets out the Council’s decision making. It said there was doubt over the enforceability of the occupancy condition, as it did not explicitly state for holiday use only. It said while it was possible to take enforcement action if the occupants were resident all year round, it may not be expedient to do so. The Council suggested the impact of removing the restriction to allow for a further month’s occupation would be limited as the site was already occupied permanently for 11 months of the year. It decided to invite the owners to apply to remove the condition about occupancy. It said this would allow for transparent consideration of the application.
  16. Following this, the Council wrote to Mr X advising him of its decision. It said enforcement action about the trailer on site was continuing and an enforcement notice was being drafted.
  17. The Council carried out a site visit in May 2019 to confirm the trailer had been removed. No enforcement notice was served, and the case was closed.
  18. An application has now been made and approved to allow year-round occupancy of the site. Mr X had an opportunity to express his objections as part of the process. This application has not formed part of this investigation.

Analysis

  1. The Council delayed for two years in opening an enforcement investigation regarding the alleged breach of condition. This was not in line with its enforcement plan and was fault.
  2. Once the Council opened an enforcement investigation, it considered the legal advice it received, the expediency of enforcing the condition and the impact further occupation might have. Councils have wide discretion about what enforcement action they may or may not choose to take. Its decision to invite an application to remove the condition was made without fault. Where there is no fault in the way a Council makes a decision, the Ombudsman cannot question the merits of the decision.
  3. However, there was fault in the way the Council communicated with Mr X. There were lengthy periods of no response from the Council to Mr X when he raised concerns. It failed to communicate regularly with him when it opened an enforcement investigation into the trailer. It did not forward his concerns to its environmental health team.
  4. These faults caused Mr X frustration and uncertainty about how the Council was responding to his concerns. They have undermined Mr X’s confidence in the planning system. Mr X has also been left uncertain about the impact of the environmental health concerns upon him and his family.
  5. In response to the draft decision, the Council said it has recently changed its internal processes, so all open and closed planning enforcement cases and environmental health cases are now available on its mapping system. This is intended to enable the teams to work together more effectively and prevent the situation which arose in Mr X’s case from occurring again. The Council has now allocated an investigating officer from its environmental health team and asked the officer to prioritise Mr X’s case.

Agreed action

  1. Within one month of the Ombudsman’s final decision, to remedy the injustice caused, the Council will:
    • apologise to Mr X for the delays and poor communication, and the failure to refer his concerns to environmental health.
    • ensure its environmental health team contacts Mr X to discuss his current concerns about the site and decide if there is any action the Council needs to take.
  2. Within one month of the final decision the Council will also issue a reminder to enforcement and planning officers about:
    • the importance of sharing information with other teams, as set out in the Council’s enforcement plan;
    • the process of responding to a request for investigation, as set out in the Council’s enforcement plan; and
    • the importance of communicating regularly with members of the public who request an enforcement investigation, in line with the timescales set out in the Council’s enforcement plan.

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Final decision

  1. I uphold this complaint. Mr X has been caused an injustice by the inaction of the Council and the Council has agreed to take action to remedy that injustice.

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Parts of the complaint that I did not investigate

  1. I have not investigated the Council’s decision-making in previous planning applications. This is because the decisions were made more than 12 months ago, and while Mr X says he did complain about this issue to the Council at the time, there is no evidence of any barrier to him bringing the matter to the attention of the Ombudsman then if he was dissatisfied with the Council’s response. I have seen no good reason to accept the complaint for investigation now.

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Investigator's decision on behalf of the Ombudsman

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