Summary: Resident X and six other residents complained the Council delayed and failed to take appropriate enforcement action for breaches of planning control on the occupiers of four plots of land near their homes. The Council was not at fault for how it carried out its enforcement investigation. It was at fault for failing to adequately communicate timescales and decisions to the complaints. It will apologise to Resident X and the six other residents for the uncertainty and time and trouble it caused.

The complaint

1. Resident X and six other residents complain the Council delayed and failed to take appropriate enforcement action for breach of planning control on the occupiers of four plots of land near their home. They say the occupiers of the plots of land carried out activities which caused a serious harm to their amenity.

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The Ombudsman’s role and powers

2. 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)
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

4. I spoke to Resident X about the complaint.
5. I considered the Council’s response to my enquiry letter.
6. I considered national and local planning enforcement guidance and policies.
7. Resident X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made my final decision.

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What I found

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
10. Planning considerations do not include things like:
• Views other another’s land;
• The impact of development on property value; and
• Private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

Planning enforcement complaints

13. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
14. Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.

The Council’s enforcement policy

15. The Council’s policy says planning enforcement is discretionary and its focus is to remedy the planning harm rather than punish people who have breached planning controls. The policy says it will give people in breach of planning controls the opportunity to remedy any breach identifies.
16. The policy says the Council will investigate allegations of breaches of planning control. It says it will negotiate with those responsible and allow them the opportunity to resolve matters before it makes a decision on whether to take formal action. It says it will keep complainants informed of the progress of the case and any decisions made, including timescales. It says it will inform complainants of the outcome of the enquiry.

What happened

17. Resident X and the other residents live in a village near four plots of land, A, B, C and D. I have referred to them as the residents within this statement.
18. The four plots are, for planning purposes, separate units of land. The four plots of land were used and occupied by gypsies and travellers from the same family. I have called them the occupiers throughout this statement.

The complaint

19. The residents complained to the Council in November 2018. They complained about the Council’s lack of enforcement action into breaches of planning control on the four plots of land. The residents said they had consistently reported the breaches and illegal activity to the Council during 2016, 2017 and 2018 but it had taken no action. The residents also complained about the Council’s lack of communication about the matter. The residents had separate concerns about each plot of land.
20. The residents say they had suffered significant harm to their amenity. They said the breaches of planning had led to increased traffic, impacted on the green belt, increased noise levels and led to illegal activities.

Complaint about plot A

21. The Council granted the occupiers a 3-year temporary planning permission to use plot A as a private gypsy and traveller caravan site in 2016. The Council granted permission with several conditions. The conditions included restrictions on other caravans being used for residential purposes and restricted the building of walls and fences. The conditions obliged the occupier to install a drainage system for surface water and foul drainage. Another condition of the planning was for the occupier to leave the land and restore it to the original state at the end of the 3-year period.
22. The residents said the occupier of plot A had breached several conditions. They said people other than the family granted permission were living on the site. They said the occupier had additional mobile homes and caravans and so the land was over occupied. They said the occupier was operating a heavy haulage business from the land and had erected fencing and gates and removed hedgerows and shrubbery. They said the temporary planning permission was due to expire in March 2019, yet the Council had taken no action on any of the breaches which occurred on the plot.

The Council’s actions on plot A

23. The evidence showed the Council first became aware of alleged breaches of planning control on plot A in June 2016 following reports from residents. The records show the Council responded to the allegations and investigated by visiting the plot of land on numerous occasions during 2017. The Council said it decided to negotiate with the occupier. The Council said the occupier complied with its request to install a drainage solution and with its requests for unauthorised caravans to leave.
24. The Council said it considered formal action against the occupiers of plot A but decided against it. It said formal action may have resulted in the court fining the occupiers and that might not have resolved the matters.
25. The occupier applied to discharge some of the conditions of the planning permission. The Council rejected the application in May 2019 as the details supplied by the occupier did not satisfy the conditions.
26. The temporary planning permission ended in March 2019. In July 2019 the Council gained authorisation to serve a formal enforcement notice on plot A requiring the use of the land as a gypsy and traveller plot to cease and the occupier to clear the land. The Council served that enforcement notice in August 2019.

Complaint about Plots B and C

27. Plots B and C are next to each other. The residents said plot B had no planning permission of any kind. They said the occupier of plot C had joined it to plot B by installing a fence. They said the land was being used to store vehicles, and the occupiers had installed hard standing, paving and a timber shed.
28. Plot C previously had a temporary planning permission for the land to be used as a gypsy traveller site which ended in 2016. The residents said the occupiers started using and living on the land without authorisation in mid-2017. They said the occupier had submitted another residential use planning application which the Council refused in July 2018, however they had continued to live on the land. They said the occupier had carried out development on the site including paving and fencing. The residents said the Council was aware of this but had not taken any enforcement action.

The Council’s actions on plots B and C

29. The records show the Council were aware of the unauthorised activity on plot B at the start of 2018. It was also aware the occupier of plot C was living on the site without planning permission. The Council said that occupier had bought plot D and had submitted planning permission to live on it. As part of that application, the occupier submitted medical evidence about their child. Because of this, the Council said it allowed the occupier to stay on plot C while that application was being considered. The Council refused the application in July 2018.
30. The Council served formal enforcement notices on the occupiers of both plots B and C in June 2019, and they came into effect in July 2019. The notices require the occupiers to return the land to its original state and clear it within 12 months. The enforcement action is ongoing.

Complaint about plot D

31. As mentioned above, the occupier of plot C was refused planning permission for residential use of plot D in July 2018. The residents said however the occupier had stripped the plot of vegetation and was regularly using it to store vehicles and caravans. They said the site looked like a dump, and there was no permission for storage use.

The Council’s actions on plot D

32. Throughout the investigation, nobody had ever lived on the plot of land. The Council had decided to allow the occupation of the land for the parking of vehicles from time to time while it considered the occupiers planning application. That application was refused. The occupier appealed against the refusal to occupy the site and the Planning Inspector allowed the appeal in May 2019. The Planning Inspector granted temporary planning permission to use plot D as a gypsy traveller site for four years. Because of this, the current use of the land is lawful, but the Council said it will monitor the implementation of the conditions to ensure compliance.

The Council’s complaint response to the residents

33. The Council responded to the resident’s complaint. It said the case was complex and each plot of land required specific tailored action as it was individually owned. It acknowledged the enforcement process had taken a long time but said this was because it needed robust evidence to deal with the planning matters effectively. The Council said it was satisfied it had followed the correct processes in dealing with the matters. It said the planning enforcement manager had communicated with residents at a Parish Council meeting. It said the need for a multi-agency approach had added unforeseen delays.
34. The residents were unhappy with the Council’s response and wrote to the Council again. They said the Parish Council meeting did not clarify anything. They said the Council promised a timetable of enforcement action which it had still not supplied. The residents said the Council may have followed processes but had taken no enforcement action at all. The residents said their amenity had suffered harm for three years. They said they wanted the Council to enforce the planning conditions set out on plot A and wanted the occupiers of plots B and C evicted.
35. The Council responded to the residents. It told them it was taking formal enforcement action against plots B and C and was continuing its investigation into plot A. The Council said it was satisfied there was no unnecessary delay and had made its decision in line with the relevant guidance. The Council did not uphold the complaint.
36. The residents remained unhappy and complained to the Ombudsman in March 2019.

My findings

37. We are not an appeal body. Our role is to review the process by which decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
38. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.

Plot A

39. There is no doubt that the four plots of land subject to this complaint were in breach of planning control. Plot A was in breach of the conditions set out in the temporary planning permission granted in 2016. The records show some of the complaints were not relevant to planning matters, such as anti-social behaviour and criminal activity. Other agencies were better placed to deal with those matters, and the records show the Council directed the complainants to those agencies where necessary. The Council’s role regarding plot A was to investigate the breaches of the conditions attached to the temporary permission.
40. The Council investigated the residents’ complaints about plot A but decided to negotiate with the owner and not take formal action. That was a course of action the Council was entitled to take.
41. The Council’s lengthy investigation was clearly frustrating for the residents, however, the records show the Council was in regular contact with the occupier. It continued to progress the matter and was satisfied the occupier was achieving compliance with the conditions. There was no fault in how the Council decided to investigate the breaches of planning control at plot A. As the temporary planning permission for plot A ended in March 2019 and was not renewed the Council had authorisation to formally enforce on the occupier to clear the land and return it to its original state.
42. The Council served the enforcement notice on plot A in August 2019 and requires the landowner to cease use of the land for residential use and to clear the land of all items within 12 months of the date of the notice. The landowner has a right of appeal which they must lodge with the planning inspectorate by October 2019. In these circumstances, we should not comment on ongoing planning investigations, which might result in a finding that the development is lawful or causes no significant harm to the public.

Plot B and C

43. Plot B was integral with plot C. The Council became aware of the unauthorised use of plot B at the start of 2018 however it did not service a formal enforcement notice until June 2019. The Council said the occupier remained on site, on plot C while they appealed against the refusal of permission for plot D. As such, the Council held off taking immediate enforcement action for plot B until that process concluded.
44. The Council used its discretion and allowed the occupier on plot C to live there while their planning application for plot D was considered. That process ended in July 2019 when the appeal was allowed. This was a decision the Council was entitled to make. The Council served the formal enforcement notices on plots B and C in June 2019. In the circumstances, I cannot find the Council at fault for deciding to delay serving the enforcement notices.
45. In any event, enforcement action is ongoing and decisions about the planning status may be made by the Council, the Planning Inspector or the Courts. In these circumstances, we should not comment on ongoing planning investigations, which might result in a finding that the development is lawful or causes no significant harm to the public.

Plot D

46. The Council used its discretion not to carry out enforcement on plot D while the owner of land applied for permission to live there. That was a decision the Council was entitled to make and therefore was not at fault.

The Council’s communication with the residents

47. The residents said the Council failed to adequately communicate its progress to them. The records show the Council communicated with Resident X and the other residents at regular intervals since 2016. Some information for reasons of confidentiality were correctly not shared with the residents. The Council acknowledged to the residents at the Parish Council meeting that some of the delay was down to staffing issues, however it should have procedures in place to deal with staff absences.
48. However, the Council’s policy says it will keep persons who report breaches of planning control informed of timescales and any decision it makes. The records show the Council agreed to do that following the Parish Council meeting at the start of December 2018 by providing timetable of its intended action. However, it did not provide anything until February 2019 within the stage 2 complaint response. While the Council has explained to me the delay in serving the enforcement notices on plots B and C, I cannot see any evidence it was communicated to the residents. Given the lengthy investigation, I would have expected evidence of timescales and decisions being shared with the residents, in line with its policy. There is not, and that was fault. It caused the residents uncertainty and time and trouble.

Agreed action

49. The Council agreed within one month of the final decision to apologise to the residents for failing to adequately update them with timescales and decisions made during its enforcement investigation.

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Final decision

50. I have completed my investigation. The Council was not at fault for how it carried out its enforcement investigation. There was fault with how it communicated with the residents and the Council has agreed to my recommendation.

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Investigator's decision on behalf of the Ombudsman