Summary: Mr B complains about how the Council dealt with breaches of planning control at a development close to his home. I have completed my investigation on the basis that there was no fault in the way the Council dealt with the matter.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains that the Council failed to take enforcement action against developers, after he reported breaches of planning conditions.

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The Ombudsman’s role and powers

2. 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)
3. 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. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr B; and
• considered documents provided by the Council; and
• spoke with Mr B about his complaint.
6. I also sent a draft version of this decision to both parties and invited their comments.

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What I found

7. Councils can take enforcement action if they find planning rules have been breached. However, councils do not have to take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207)

8. The Council’s policy explains that The Council will endeavour to respond to enquires made by customers in relation to specific enforcement cases. Routine updates on reports of a potential breach of planning control will not be provided during the course of an investigation; however contact can be made with the relevant case officer once an enquiry has been assigned. It is important to note that planning enforcement can be a lengthy and legally complex process and the time taken to reach a satisfactory resolution can vary considerably between investigations.

What happened

9. The Council granted planning permission for the development of 37 residential properties on land close to Mr B’s property. Permission was granted subject to a condition meaning deliveries and building work could only take place during permitted times.
10. On commencement of works on the development, Mr B reported that work was taking place on the site and deliveries were being received outside of the permitted times. Mr B said the noise was impacting his sleep.
11. The Council wrote to Mr B and explained an officer would need to witness the nuisance in order to take further action, so asked him to contact the Council if it happened again.
12. Mr B reported the issue to the Council on numerous times over a five-month period. He also submitted a complaint to the Council about the matter.
13. In response, the Council’s enforcement officers attended the site and witnessed work being carried out outside of the permitted times. The enforcement officers initially spoke to workers on the site asking them to cease work outside of these times.
14. When further reports were received by Mr B the Council escalated their concerns to the site manager and subsequently to the sire director. Two warning letters were later sent to the developer.
15. Mr B complained that the Council was failing to take appropriate enforcement action against the developers, despite his repeated reports of a breach of planning conditions. The Council’s complaints policy says that it aims to respond to complaints within twenty days.
16. After no response was received Mr B submitted a complaint via his MP and issued the Council with a freedom of information request (FoI). The Council responded to both complaints and the FoI some five months after Mr B’s initial complaint.
17. The Council apologised for not responding to Mr B’s complaints within 20 days. It said that it was continuing its investigation into breaches of planning conditions by the developer. The Council also provided Mr B with contact details of the site manager, who could address breaches in the first instance.
18. The Council added that after it had contacted the developer about the breaches, changes had been made the gate entry system which it believed would alleviate congestion and noise at the site.
19. The Council later said that Mr B was the only person to have reported the matter and it does not have enough evidence to issue a formal notice to the developer.
20. Since receiving the Councils final response, Mr B has said that further breaches have occurred, but he has not reported them because the Council have not acted on his previous reports.

Analysis

21. Planning authorities can take enforcement action where there has been a breach of planning conditions. However, it is for the council to decide if a planning condition has been breached and what, if any, enforcement action is necessary.
22. 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. Where there is a suspected breach of planning control, we would expect the council to consider the allegations and carry out a proportionate investigation into the matter.
23. There is no requirement for councils to take immediate action and guidance encourages councils to resolve matters without the need for formal enforcement action where possible. Formal action should only be taken where it is expedient to do so and is often used as a last resort.
24. I am satisfied the Council properly investigated Mr B’s concerns about breaches of planning conditions. It visited the site on several occasions and was in regular contact with site workers and management.
25. The Council did issue warning letters to the developer, but it made the decision not to proceed with formal enforcement action and explained that this was partly because Mr B was the only resident to complain about the matter. This was a decision it was entitled to make, and I cannot say it was at fault for trying to resolve the matter informally.
26. While I appreciate this matter may still be ongoing, I am unable to find fault with any action the Council has taken since completing the complaints process. This is because Mr B stopped reporting breaches to the Council in June and did not make any contact with the Council about this matter until after his final complaint response.
27. Mr B has said that he had contacted the Council in June and in August, and that the Council has failed to respond. However, as this contact was made after the Council’s final complaint response these matters were not considered as part of this investigation. However, we would expect the Council to consider these matters if Mr B chose to make a further complaint.
28. There were significant delays in the Councils responses to Mr B’s complaints. However, I do not consider that this caused Mr B a significant injustice. This is because I do not believe that an earlier response would have led to a different outcome.

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Final decision

29. I have concluded my investigation with no finding of fault by the Council.

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Investigator's decision on behalf of the Ombudsman