Summary: Mr X complains the Council failed to take enforcement action in respect of a neighbouring business. The information provided shows there was a period of five months when the Council took no action. This is fault. External legal advice said the chances of a successful prosecution were very uncertain and so it is unlikely the outcome would have been different even if there was no delay. The Council should apologise to Mr X for its delay.

The complaint

1. Mr X complains the Council failed to take enforcement action in respect of a neighbouring business.
2. Mr X says he has experienced noise, fumes and traffic problems as a result of the unauthorised operations.

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What I have investigated

3. I have considered the Council’s actions following the Planning Inspectorate’s decision in March 2018 to dismiss an appeal. My investigation covers the Council’s action until the second Planning Inspectorate decision in March 2019. I explain at paragraph 26 below the matters I am not investigating.

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The Ombudsman’s role and powers

4. 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)
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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments before making my final decision.

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What I found

7. Mr X’s property is located next to a small business centre. One unit is used by a metal work company. There is a condition on the planning approval preventing the storage of materials outside the unit. Mr X says the business is not complying with the condition resulting in noise, fumes and traffic issues at his property.
8. The business submitted an application to vary the condition in March 2017. The Council refused the application because of the impact on the neighbouring properties including Mr X. The business appealed to the Planning Inspectorate who dismissed the appeal in March 2018. The Planning Inspectorate agreed that storing materials outside the building would materially impact on the living conditions of adjoining neighbours.
9. Following the decision of the Planning Inspectorate to dismiss the appeal to vary the condition, the Council’s enforcement officer sought advice from the legal department about moving to a prosecution. The Council’s solicitors felt the Council did not have a strong case for prosecution and advised seeking a barrister’s opinion.
10. In response to my initial enquiries the Council provided a chronology of its actions from March 2018 onwards. The information it provided showed no further action until 1 October when Mr X complained about the Council’s failure to enforce the planning condition preventing outside storage.
11. The Council has since provided further evidence about its actions from March 2018 onwards. This shows some internal discussions about what action to take resulting in a request at the end of May 2018 for counsel’s advice. While a request was made by the planning department for counsel’s advice, the evidence shows the Council’s legal advisers did not act on this. The Council wrote to Mr X in May and said it would be able to provide a more detailed response by 15 June. It wrote again to Mr X in July saying the matter was still being reviewed by its legal team.
12. The Council wrote to the business on 5 October giving it six weeks to comply with the planning condition and to remove items stored outside the building. The Council wrote to Mr X saying it was pursuing the matter and it expected the business to comply and if not, it would proceed with a prosecution.
13. In November the Council told Mr X it was seeking barrister’s advice on the merits of a prosecution. The further evidence provided by the Council shows requests were again made by planning to the legal team but counsel’s advice was not actually sought until January 2019. Mr X contacted the Council again in December saying the period for the business to comply with the condition had passed and items were still being stored outside and causing him a nuisance.
14. In January 2019 the Planning Inspectorate notified the Council the business had made a second appeal. This appeal related to the Council’s decision in November 2017 to refuse a second application to vary the storage condition. The business was seeking a variation to allow storage outside the building in a specific area in front of the unit.
15. The Council received the barrister’s advice in March 2019. The advice said the outcome of any prosecution was “very uncertain”.
16. On 22 March 2019 the Planning Inspectorate upheld the latest appeal and granted permission for the storage of goods on the building forecourt. The Planning Inspector also included a condition about the hours of operation. As a result of this decision, the Council considers the previous breach of planning permission has been resolved and it will not take further action.
17. Mr X says the business is not complying with the new planning condition and says the Council should continue its enforcement action.

Analysis

18. Mr X complains about the Council’s failure to take enforcement action. The information provided indicates the Council agrees with Mr X that the outside storage is not acceptable and causes harm to neighbouring properties. The Council has refused two applications to vary this condition and did start enforcement action including considering prosecution.
19. The Council did not take action while the first appeal was pending. I would not criticise this action. In April 2018, shortly after the Planning Inspectorate dismissed the first appeal, officers decided to seek legal advice on moving to prosecution. I am satisfied the Council acted appropriately.
20. The Council did consider what action, if any, to take following the appeal dismissal. The evidence provided shows a decision to request counsel’s advice was made by the end of May 2018. However, the Council’s legal advisers did not act on this until January 2019. The legal adviser, is an agent acting on behalf of the Council and so its actions are considered to be the same as if actions of the Council. I consider the delay in requesting counsel’s advice to be fault.
21. While waiting for the barrister advice, the Planning Inspectorate notified the Council it was considering a second appeal. I would not criticise a council for waiting to hear the outcome of a planning appeal before taking legal action. The Planning Inspectorate decided to uphold the appeal and allowed the business to use an area for outside storage. I appreciate that Mr X and the Council may not agree with the decision made, but this is a valid decision and means some outside storage is allowed.
22. I have to consider what injustice the avoidable delay caused Mr X. The Council gave the business six weeks to comply with the condition and remove all items stored outside. While this action could have happened much sooner, I do not consider the action itself to be fault. It is appropriate for the Council to give an opportunity to the business to comply and to warn it of the consequences if it does not comply.
23. Even if the Council had acted sooner, I am not persuaded the outcome would have been any different. It is not fault for the Council to wait for the outcome of a planning appeal before continuing to prosecution. The advice given by the Council’s own solicitors and the external barrister both concluded there was a limited chance any prosecution would be successful. So even if there had not been a period of delay, I take the view, on balance, that the Council would not have started prosecution proceedings against the business. I am therefore not persuaded the outcome would have been any different even if the delay had not occurred.

Agreed action

24. The Council, within one month, should provide a written apology to Mr X for its delay in seeking counsel’s advice and providing clear updates to Mr X.

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Final decision

25. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy the injustice caused by fault.

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Parts of the complaint that I did not investigate

26. Mr X says the business is not operating in accordance with the amended condition. He considers the Council should continue its enforcement action. I am not considering any breaches of the new condition as part of this complaint as this is a new matter and not a continuation of the previous enforcement action. If Mr X considers the business is in breach of the condition on the permission granted by the Planning Inspectorate in March 2019, he should raise this with the Council and if dissatisfied with the response should make a new complaint to the Council.

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Investigator's decision on behalf of the Ombudsman