Summary: Mr E complains about the Council’s lack of planning enforcement action and lack of updates. The Ombudsman upholds the complaint and has agreed remedies.

The complaint

1. The complainant, whom I shall refer to as Mr E, complains the Council has repeatedly failed to take timely and appropriate planning enforcement action about a breach of planning control. The consequence of this is other breaches of planning control have occurred in the area.
2. Mr E also complains about the lack of updates from the Council.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 Mr E;
• made enquiries of the Council and considered its response;
• spoken to Mr E;
• sent my draft decision to Mr E and the Council and considered the responses I received.

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What I found

Legal and administrative background

7. A breach of planning control is defined in Section 171A of the Town and Country Planning Act 1990 as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
8. Local planning authorities (LPAs) can take enforcement action if they find there has been a breach of planning control. However, they should not take enforcement action just because there has been a breach of control. The National Planning Policy Framework says:

‘’Effective enforcement 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.”

9. LPAs normally first try to deal with breaches informally, often through negotiation with the developer/landowner. If a LPA decides formal enforcement action is justified, there are various steps and different formal notices it might take depending on the circumstances. Often a LPA first serves a Planning Contravention Notice (PCN) which allows it to seek information about the suspected breach of planning control.

The Council’s Planning Enforcement Policy Statement

10. The Council’s Policy Statement says:
1. “The Council will…act positively and swiftly in tackling breaches of planning control in accordance with the considerations and process described in Section 6 of this Enforcement Policy Statement.”
2. Section 6 – investigation of suspected breaches:

• It aimed to keep all parties informed of progress where investigations were complex or protracted.
• It would aim to carry out a site visit in most cases. The initial site visit would be between one and seven working days, depending on the priority level.
• Where it needed to carry out further investigation, it would aim to notify the complainant within 15 working days.
• Where the Council found a breach was likely to have occurred, it would consider serving a Planning Contravention Notice to get further information.
• Where it had established a breach of control, it would notify the complainant of what action the Council was intending to take. This could include:
• Negotiation.
• Formal enforcement action.
• It would record on its file any decision to take action. It would seek authority from elected members or senior officers.
• The statement lists the powers available to the LPA.

What happened

11. Mr E lives near to a site where he says, for the last few years, there has been an occupier living on it in a mobile home without planning permission. He also notes that person has been storing vehicles on the site.
12. The Council opened its enforcement file on the issue on 1 September 2016. Its Officer (Officer 1) checked the Land Registry for ownership details on 13 September. A file note says that in October the landowner told the Council the occupier (Mr F) did not have permission to live there and they would be serving him notice. The Council was also in contact with an officer from the County Council (it is unclear what this was about). Its file says it left a notice for the complainant that it was awaiting an update from the owners (my understanding is this was not Mr E).
13. There are no other records of action on the Council’s file until April 2017 when Officer 1 carried out a new Land Registry search. It seems the ownership of the site is complicated. The Council has a record that it spoke to an estate agent who told Officer 1 he would speak to a solicitor about removing Mr F from the site (there is a later note that casts doubt on whether that agent had any relationship with the site). The Council continued to try to establish the owner of the land into March 2018.
14. On 8 May the Council has a record in its file titled ‘re-visit’, although it does not have a record of an earlier visit. This is a meeting with residents. Officer 1 advised residents the Council could only deal with planning issues. They should report any crime or harassment concerns to the police. She advised the Council would start enforcement action, but warned them this could take some time. Mr E was not at this meeting.
15. In June Officer 1 sought authority to issue an enforcement notice. She had to amend the notice in July, after clarification about the ownership of the land. The Council served the enforcement notice on 10 August. It received later communications about the landowners. The Council did not receive any appeal, so the notice became effective from 12 September.
16. Officer 1 spoke by telephone with Mr F soon after. She also spoke to Mr F’s relatives who related his situation.
17. The Council has records of emails received from Mr E from August 2018. The Council has a record it updated neighbours in November that it was considering its options.
18. The Council has a brief note of a ‘re-visit’ at the end of November. It decided that it could take action about non-compliance with the enforcement notice. But its view was that “[s]eeking the removal and clearance of the land is the best way forward”.
19. The Council has a longer note of another visit in December 2018 when Officer 1 spoke to Mr F.
20. Mr E began to complain about the Council’s inaction in January 2019. The Council’s response advised it had been considering its options since it lodged its enforcement notice. It had decided it was best to instruct enforcement officers from the Sherriff’s Officer to clear the site. The Council Legal Services’ file has some information about why it decided this was the best strategy. This record also outlines the reasons it took some time in 2019 to progress the enforcement action.
21. The Council began legal action to apply to the County Court for an injunction to seek the removal of the items from the land. I can see it updated one of the residents in March (although not Mr E). The hearing was on 12 June. The Judge adjourned for a longer hearing and to allow Mr F to gather evidence. The Court granted a final injunction on 12 July with a compliance date of 23 August. The Council’s records show it advised Mr E of this action.
22. The Council’s response to my draft decision says it was difficult to update neighbours due to the fact it was a “highly charged situation”.

Was there fault by the Council?

23. Mr E complained to us in April 2019. I have taken that into consideration when assessing injustice to Mr E. But I have used the discretion the Ombudsman has to consider the complete enforcement investigation, given the ongoing nature of the issue.
24. My view is the Council’s records of its enforcement investigation are lacking. For example, it has no record of a site visit when it first opened its enforcement investigation, or an analysis of why it did not visit. This suggest either that it did not visit, contrary to the expectation of its Policy Statement. Or it visited and did not keep a record. Either is administrative fault.
25. Later it does have records of visits and actions. But those records do not provide sufficient detail to allow me to follow always what happened and the Officer’s reasoning.
26. The records also suggest the Council decided to change its enforcement strategy mid-way through its investigation, after it had served an enforcement notice. It is not for the Ombudsman to question the professional judgment of officers about what the most effective way was to remedy the breach of planning permission. But I would have expected to see an earlier analysis of the enforcement options and analysis of why it had decided to use the strategy it did. Earlier analysis might have led to it earlier taking the injunction action it later took.
27. I can see that ownership of the site presented challenges to taking action. But my view is the lack of any file updates at times (for example between October 2016 and April 2017 and after that into 2018) suggest avoidable delay.
28. The Council’s records also provide some support for Mr E’s assertion the Council did not update him as often as it should have. The Council has advised it was not always possible to keep neighbours updated. I accept there may be valid reasons why the Council could not have updated neighbours as often as it would have liked. But I would have expected to see some acknowledgement of this in the Council’s contemporaneous records.

Agreed action

29. Within one month of the Ombudsman’s final decision, I recommend the Council writes to Mr E and apologises for the faults identified in this statement and provides an update.
30. Within three months of the Ombudsman’s final decision, I recommend the Council ensures the learning points which have arisen from this complaint are discussed at a Planning Enforcement Team meeting. This meeting should cover the following topics:
• The importance of keeping accurate records when conducting an investigation. Records should include a note of all substantive actions or whether its view was an action was not needed. They should also outline the reasons why the Council may or may not decide to take enforcement action, or change its enforcement strategy.
31. The Council will need to send the Ombudsman evidence that it has carried out these recommendations.

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Final decision

32. I uphold this complaint. The Council has agreed to my recommendations. So I have completed my investigations.

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Investigator's decision on behalf of the Ombudsman