Summary: There was no fault by the Council in a complaint which alleged the Council dodged its responsibilities and avoided issues concerning early deliveries to a local supermarket contrary to a condition attached to the planning permission for the supermarket.

The complaint

1. Mr X says the Council dodged its responsibilities and avoided issues concerning early deliveries to a local supermarket contrary to a condition attached to the planning permission for the supermarket. Mr X says:
• The Council’s planning enforcement officer assumed it was acceptable for deliveries to be dropped outside the store before 7am as long as the store did not accept the deliveries and so this meant the early deliveries continued for a year.
• The manager of the store told him that she had been instructed by officers to tell the delivery drivers to leave the deliveries outside so as to technically avoid it being a delivery.
• Enforcement officers opened and closed investigations even though the early deliveries persisted.
• The Council told him in its response to his stage two complaint that the same enforcement officer whose actions he was unhappy with would continue to investigate his concerns about the early deliveries.
2. Mr X says he and his wife were disturbed by early deliveries between July 2018 and April 2019. He says they did not register all the times when there were early deliveries on the Council’s website because enforcement officers had incorrectly stated there was little the Council could do if deliveries were left on the street and not made directly to the store and so they felt there was little point in carrying on. Mr X says the lack of sleep significantly affected he and his wife and left them irritable, negative and even depressed.
3. Mr X wants an apology from the enforcement officers and compensation.

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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. I reviewed the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council. I considered the Council’s comments on the statement.

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What I found

Law and government guidance on planning enforcement

7. Local planning authorities have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative areas.
8. There are a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way.
9. Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan.
10. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 58.
11. Paragraph 58 of the National Planning Policy Framework says:

“Effective enforcement action is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate”.

12. The range of enforcement options available to local planning authorities to tackle possible breaches of planning control in a proportionate way range from no formal action to service of an enforcement notice.

Background

Mr X’s account

13. Mr X says there were deliveries to the store in breach of a condition which restricted deliveries before 7am. He complained to the Council but says he and his wife were stuck in a pattern where the Council replied to their concerns by saying its officer had spoken to the store and closed their investigation even though the deliveries continued before 7am.
14. Mr X says the enforcement officers are deliberately trying to confuse the issue through obfuscation. Mr X says enforcement officers dodged their responsibilities and avoided issues. Mr X wants an answer to why he did not receive responses to correspondence he sent to the Council on seven occasions between January and March 2019.
15. Mr X says the Council claimed to have resolved the matter in an article in a local newspaper in April 2019 whereas early deliveries had continued after it closed the investigation in March 2019. Mr X says he was the one who resolved the problem in April 2019 by telephoning the head office of the store and sending it evidence of early deliveries.
16. Mr X says the store manager told him that she had been instructed by officers to tell the delivery drivers to leave the deliveries outside so as to technically avoid it being a delivery.
17. Mr X says the Council claims the case enforcement officer contacted him in January with a request for proof of early deliveries but having been told by the store manager that she had been instructed by the Council to get deliveries left outside he felt he had nowhere to turn. Mr X says he told the Head of Planning that he was not happy with his handling of the case and the fact the Head of Planning told the same case officer to continue with the case. Mr X says his health was poor at that point in the year and so he did not have the strength to engage with the Council over the issue.
18. Mr X says the Council’s final complaint response stated the planning condition restricting deliveries before 7am was laid down to ensure residents are not disturbed regardless of whether deliveries are left on the street or made directly to the store. Mr X therefore wants an apology from the case officer and the Head of Planning.

The Council’s account

19. The Council emphasises its enforcement officers visited the store on several occasions during which its officers spoke with the store manager. Officers advised the store manager that the planning condition stipulated deliveries should not take place before 7am.
20. It appears from the stage one complaint response from the Head of Planning in November 2018 that officers took the view that if the store did not accept deliveries before 7am then the condition was not breached. So, officers advised the store manager not to take deliveries into the store before that time. The store manager also advised officers that store personnel had been told not to put out notice boards and trolleys before 7am and not to bring them back in before 9pm.
21. The Council says the store manager advised officers that she had spoken with the supplier who made deliveries before 7am that the deliveries had to be made later.
22. The Council was satisfied it had taken reasonable and proportionate steps to secure compliance with the condition.
23. The Head of Planning contacted Mr X in December 2019 to tell him that the Council would carry out further investigation of the complaint to establish whether a material breach of the planning permission had occurred.
24. The case officer wrote to Mr X in early January 2019 with a request that he keep and provide a record of all deliveries that were made outside of the permitted hours. The officer asked Mr X to provide the information by the end of January 2019. Mr X did not provide the information. The case officer closed the enforcement complaint in March 2019.
25. Mr X contacted this service in April 2019 and we referred the complaint back to the Council as it was premature.
26. The Council sent a final complaint response to Mr X in May. It accepted the enforcement officers were wrong to say as long as the store did not accept deliveries before 7am then it was not in breach of the planning condition. However, the Council noted the case officer had asked Mr X to provide a diary of events which he did not then provide. The Council said the information Mr X did provide referred to deliveries of bread on seven occasions before 7am. The Council said the information suggested the breach had been infrequent and involved bread deliveries only.
27. The Council said the decision to close the case was appropriate as it would not have been expedient for it to have taken any formal action. It pointed out it could consider any new evidence provided by Mr X in future.

Analysis

28. I do not find fault by the Council in the matters raised here by Mr X.
29. As to the Council’s enforcement decision, it was open to officers to take an informal approach to the alleged breach. This approach was in accordance with the law and government guidance. It is clear officers asked the store manager to respect the condition restricting deliveries before 7am. They also had a statement from the store manager that she had told the supplier not to deliver before 7am.
30. I accept officers were under the mistaken impression there was no breach of the planning condition if the deliveries were not accepted by the store before 7am. This was a failing but one which I do not consider serious enough to make a finding of fault by the Council. If this approach was serious or significant then officers would not have advised the store to stop deliveries before 7am or advised store manager to ask the supplier to stop deliveries before 7am.
31. As to Mr X’s claim the store manager said officers instructed her to tell delivery drivers it was acceptable to leave deliveries outside so as to technically avoid them being deliveries, I cannot place weight on this claim because it is hearsay. It is a second-hand account of an alleged conversation between the store manager and officers which I cannot verify.
32. I do not find fault because the Head of Planning told Mr X that the same enforcement officer would continue investigating the matter in response to Mr X’s complaint. It is for the Council to decide on the allocation of its resources and personnel matters. I have seen nothing to conclude the enforcement officer was unfit to continue the investigation.
33. As to the correspondence which Mr X alleges the Council did not respond to, it appears there were responses to some of Mr X’s emails. Certainly, in January 2019. However, it appears the case officer and the Head of Planning did not respond to others. The Council eventually responded in April 2019 and sent its final complaint response in May 2019.
34. The Ombudsman does not condone a failure to respond to communication from the public. However, I do not consider the gaps in responses in this case were significant enough for me to find fault by the Council. I urge the Council to accept this case as a learning point for its officers in terms of their contact with the public.

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Final decision

35. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman