Summary: Mr Y complains about the way the Council carried out enforcement action over a breach of planning control at a site near to his business. The Ombudsman has found no evidence of fault in the way the Council considered these matters so has completed his investigation.

The complaint

1. Ms X complains for Mr Y about the way the Council dealt with a breach of planning control at a site used for religious worship near to his business.
2. Ms X says the users of the site do not use designated car park but rather park on the nearby roads causing difficulties and nuisance for their business and to other nearby businesses. Ms X says the users of the site cause a noise nuisance, breach opening hours and produce food which is not allowed. Ms X says the Council assured them it would take enforcement action but has delayed doing so. Ms X says the Council failed to keep them informed and they have to chase for updates.

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The Ombudsman’s role and powers

3. 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)
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 have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Ms X and the Council and considered the comments received.

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What I found

National and Council enforcement policy

6. Paragraph 58 of the National Planning Policy Framework (NPPF) contains national enforcement policy. This says that ‘enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control’. It says councils should have a local enforcement plan to manage enforcement proactively and say how it will investigate alleged cases of unauthorised use and act where appropriate.
7. The Council’s General Enforcement policy refers to the NPPF. The Council’s policy says the use of enforcement will be proportionate to any offence committed, consistent in application, transparent in its use and application and appropriate to the circumstances of the case in question.
8. The policy says officers can inspect a site, issue advice or warning letters. The letters can specify a timescale to take corrective action and officers can revisit premises to ensure compliance. The Council can then carry out an enforcement review if more formal action is considered. The action can include seeking advice. The Council can issue statutory notices and prosecute offenders.

Events leading to the complaint

9. Mr Y complained to the Council in July 2018 about visitors to the site for religious worship parking inconsiderately on nearby roads causing a nuisance for business users in the area.
10. A Council enforcement officer visited the site. The planning permission granted to use the site for religious worship included a condition needing parking spaces available for users. The officer found the parking area at the site being used for storage. The officer advised a representative of the site about the breach of planning control and it needed to revert the area back to parking by 3 August 2018.
11. Mr Y made a further complaint to the Council about issues on the site. He referred to noise nuisance, hours of use and cooking on the premises.
12. The officer met with a site representative and agreed a second deadline in August 2018 to remove the storage. The officer updated Mr Y who complained about lack of progress. The officer said they discussed the matter with the Community Development team who were trying to help the site users.
13. Mr Y provided more information about parking problems caused by users of the site. The officer responded and visited the site again. The officer found no change to the site so wrote to the representative for it to be remedied within 14 days.
14. Ms X complained to the Council for Mr Y about the lack of enforcement action. The Council responded it was still pursuing the matter and the enforcement procedure could be protracted especially when site owners do not willingly engage. The Council confirmed it was seeking removal of the outside storage which was limiting the on-site parking.
15. The Council said it could not deal with illegal parking on the highway as this was for the highway authority or the Police to enforce. The Council advised Mr Y to complain to Environmental Health about noise and cooking on the site. The Council said it planned to carry out an enforcement review to establish the most effective way to remedy the problems at the site and would update Mr Y.
16. Council officers met to discuss the site in February 2019 and considered the enforcement review in March 2019. The review explained action taken by officers so far and recommended serving a breach of condition notice on the site users. The Council says it did not agree to the formal action recommended and decided to involve the Community Development team further to help resolve the breach. The Council also agreed planning officers should proactively arrange a meeting with representatives to seek their cooperation to resolve the matter without the need for enforcement action.
17. An officer gave a final warning letter to a site representative in March 2019. The Council says this ultimately resulted in a commitment from the representative to act to remedy the breach by submitting a planning application. The Council updated Mr Y.
18. The site users submitted planning drawings in April 2019 which the Council could not validate. Officers asked for revised drawings in May 2019 and chased for outstanding information in June 2019. Mr Y contacted the Council for an update. The Council records do not show it responded to Mr Y.
19. The Council accepts it should have communicated better with Mr Y by updating him more consistently on progress. It has apologised to Mr Y for this. But says it must handle information carefully with enforcement cases due to confidentiality and data protection. And so, it was not in position to disclose all the details of the case to Mr Y.
20. In July 2019 the officers advised representatives to send drawings to validate the application otherwise it would consider formal enforcement action. An officer visited the site and found the situation unchanged. Officers met with representatives who confirmed they wanted to keep the storage area and would not take the action previously agreed to. Because of this, officers drafted a final warning letter. But it was not issued until September 2019 due to senior officers being on annual leave. The warning needed the representatives to remove the storage and return the land to parking by the end of September 2019 or the Council would take enforcement action.
21. Mr Y contacted the Council for an update. Officers advised of the action taken and it may result in formal proceedings after 6 October 2019. Mr Y questioned the opening hours of the site. The Council said it received guidance from the highway authority on highway and parking matters when considering the application to use the site for religious worship over 10 years ago. The highway authority did not object and the use complied with the maximum parking standards in place at the time. The Council said there was no one landowner or road user with an exclusive right to use on-highway parking areas. And users of the site had a right to park lawfully on the highway. The Council said any unauthorised or unlawfully parked vehicles from the site and parked on the highway would be dealt with according to the law by its Parking Enforcement team.
22. The Council said due to the advice received from the highway authority it considered there was no need to control the hours of use. The Council says Mr Y is the only complainant and the site has operated for over 10 years without complaints.
23. The Council says representatives have not responded to the warning letter and so it intends to begin formal enforcement action. However, the Council says this will still not resolve matters swiftly as there is a right of appeal against a formal notice served. It will also not solve Mr Y’s complaints about on-street parking or the hours of use of the building as the Council has no control over that.
24. The Council says that its Environmental Health services are serving notices under food safety and health and safety legalisation on the site.

My assessment

25. The documents provided by the Council show it responded to Mr Y’s complaints about users of the site. This included visiting the site and actively working with representatives to remedy the breach. The Council has also carried out an enforcement review to determine what action to take. I appreciate this has taken some time and Mr Y wanted the matter resolving quickly. However, enforcement action is discretionary, so it is for the Council to decide what action it wishes to take.
26. In this case I consider the Council’s actions are according to the requirements of the NPPF and its own enforcement policy. This is to take a proportionate approach when dealing with enforcement action and the Council will try to resolve matters informally before resorting to formal action. So, there is no evidence of fault by the Council in its actions so far.
27. It is unfortunate the site representatives ceased to cooperate with the Council after agreeing to take action to remedy the breach. And so, the Council is now proposing to take formal enforcement action which is the outcome Ms X and Mr Y were seeking.
28. The documents also show the Council did communicate with Mr Y. Although it has accepted it could have communicated better with Mr Y to keep him updated with action. The Council has apologised to Mr Y it did not do so consistently which I consider is suitable action for it to take.

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Final decision

29. I am completing my investigation. I have found no evidence of fault by the Council in the way it carried out enforcement action over a breach of planning control at a site near to Mr Y’s business.

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Investigator's decision on behalf of the Ombudsman