Summary: Mr B complains the Council has failed to ensure compliance with various planning enforcement measures it has taken for planning breaches on land near to his home. He says the continued and increasing unauthorised use and development of the land causes him and his wife and neighbours’ distress. He is also worried the use could increase. There has been some delay by the Council since April 2018 in deciding what further action it should take. The Council should update Mr B about the current position.

The complaint

1. Mr B complains the Council has failed to ensure compliance with various planning enforcement measures it has taken for planning breaches on land near to his home. He says the continued and increasing unauthorised use and development of the land causes him and his wife and neighbours’ distress. He is also worried the use could increase.

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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. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), 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. I considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

Overview of recent events

6. Mr B lives near to some farmland. His complaint concerns unauthorised development on the land. The Council has served several enforcement notices on the land-owner relating to the stationing of caravans on the land, parking and the storage of vehicles and other unauthorised development. The Council has prosecuted the land-owner for non-compliance and this has resulted in three terms of imprisonment for breaching the court orders requiring him to comply with the enforcement notices.
7. In January 2018 the land-owner was sentenced to three months in prison for failure to comply with an injunction and to pay fines. Over the summer the Council started to consider whether it should take direct action to achieve compliance with the enforcement notices. It obtained quotes from contractors who specialise in such work. In September 2018 there was a meeting of senior officers and the then acting Chief Executive wrote to Mr B. She said the Council was considering what action it should take, could not share details with him but she was “confident that you will see some movement before too long”.
8. Over the next few months Mr B reported changes to the activity on the site. He submitted drone footage which he believed showed residential occupation of the site. The Council decided it would need to carry out a further site visit to establish what the current situation was on the site. This happened at the beginning of June 2019 and the Council then immediately served a further enforcement notice in respect of the parking and storage of vehicles. The visit did not show the other breaches reported by Mr B.
9. The Council has obtained updated quotes for the cost of taking direct action. It is considering:
• Direct action to enter and remove items from the land;
• Further committal proceedings for breaching the court orders (injunctions) for failing to comply with enforcement notices;
• Further prosecution proceedings for failure to comply with enforcement notices.

It anticipates a decision will be made by the end of October.

Summary of the relevant law and policy

10. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. This 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. 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.”

11. The Council has published an enforcement plan. This says the Council will only take enforcement action when it is considered expedient to do so and that it will be prepared to use all the enforcement powers available commensurate with the seriousness of the breach. In deciding whether to take enforcement action the Council will have regard to the development plan and to any other material considerations including national policies and procedures. In considering whether it is expedient to take enforcement action the decisive issue will be whether the breach of planning control unacceptably affects public amenity, existing land uses and buildings which merit protection in the public interest or the natural environment. It goes on to say that enforcement action is discretionary, and the council will act proportionately in responding to suspected breaches of planning control.

Analysis

12. Mr B’s complaint is that the Council has failed to take action to ensure compliance with the enforcement notices. I have considered the period from April 2018 when the land-owner was released from prison. Over this period the Council has been considering the options open to it but has not come to a conclusion. In that time it has obtained quotations for direct action and carried out a site visit. The visit was necessary because Mr B reported changes on the site so the Council needed to establish if there had been any material changes. It took some months to arrange the site visit but given the complexity of the situation I do not consider there was unreasonable delay in doing that. Nor was there any delay in serving the enforcement notice. But, overall, I consider there has been some delay by the Council since April 2018 – the Council has not progressed this matter as quickly as it should and there have been periods of inaction. I am not going to attempt to quantify any delay as I do not consider it is material to my decision.
13. I note the Council’s comments about the degree of impact the breaches have on Mr B’s amenity which it considers to be negligible. I also note its comments that enforcement action needs to be proportionate to the harm identified and is in the public interest. It is for the Council to weigh up these issues when deciding on the course of action. It is important the Council now comes to a decision on its next steps. It commented that it aimed to do so by the end of October. That has now passed so the Council should write to Mr B with an update. If Mr B is not satisfied with any response he has from the Council he can make a further complaint to the Ombudsman.
14. I have considered carefully the comments made by Mr B and his neighbours about the impact on them. I do not doubt that the activities of the land-owner cause them significant distress and concern. But much of the concern raised relates so his actions, not just to the planning breaches on the site. I do not, therefore, consider I should look to the Council to provide any redress to Mr B and his neighbours for the delay I am finding here. I recognise they are finding the uncertainly and lack of action concerning but what they want is for the Council to take action to resolve the planning issues on the site and the way forward now is for the Council to decide on its next steps.

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Final decision

15. There has been some delay by the Council since April 2018 in deciding what further action it should take. The Council should update Mr B about the current position.

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Investigator's decision on behalf of the Ombudsman