Summary: We found fault in how the Council dealt with Mr X’s reports of breaches on planning control on land near his home. The Council agreed to send Mr X an apology and £300 in recognition of the avoidable frustration and time and trouble he was caused by its fault. The Council also agreed to Council carry out enforcement investigations into Mr X’s outstanding concerns about unauthorised development on the land.

The complaint

1. Mr X complained about the Council’s handling of development on a site near his home (‘the Site’) because:

• it granted planning permission for developments that had unacceptable traffic and visual impacts in an area of outstanding natural beauty (AONB);
• it failed to take enforcement action against unauthorised development on the Site; and
• its officer was complicit in granting planning permissions and not acting against the unauthorised development on the Site.

2. Mr X also complained the Council had failed to respond to his complaint about its handling of development on the Site.
3. Mr X said the development and use of the Site affected him and his nearby home because it caused traffic safety issues, noise and light pollution and was an eyesore within the AONB.
4. Mr X wanted the Council to refuse further planning permissions; remove unauthorised development; and stop the unauthorised use of the Site. Mr X also wanted disciplinary action taken against Council officers and the developer.

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What I have investigated

5. Mr X had wide ranging concerns about the development and use of the Site. The focus of my investigation was the part of Mr X’s complaint that concerned planning enforcement issues. Mr X contacted the Council in autumn 2018 after noticing development on the Site differed from that shown in approved planning permission plans. Mr X included his planning enforcement concerns in his spring 2019 complaint to the Council, which complaint he later brought to the Ombudsman. Mr X’s other main issues were not investigated for the reasons given at paragraphs 57 to 61 of this statement.

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The Ombudsman’s role and powers

6. 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. 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), 26A(1) and 34(3), as amended)
7. 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)
8. 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

9. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• considered planning information on the Council’s website about development of the Site;
• asked for and considered the Council’s comments on the complaint;
• shared the Council’s comments with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered their responses before making a final decision.

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What I found

Background

10. Most development needs planning permission from the local council. The law says development includes building and other operations and a material change in use of land. However, Parliament has given a blanket permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over permitted development.
11. Where development takes place without the necessary planning permission there will be breach of planning control. A failure to comply with a planning permission and its conditions is also a breach of planning control.
12. Councils should investigate reported breaches, but they do not have to take enforcement action against every breach they find. Rather, the law gives councils a discretion to act. The Government’s National Planning Policy Framework (NPPF) says councils “should act proportionately in responding to suspected breaches of planning control.”
13. If councils wish to act, they usually have a choice in what steps to take. For example, a council may issue a planning contravention notice (PCN). The law says a council may issue a PCN “where it appears [to it] that there may have been a breach of planning control in respect of any land”. A PCN allows a council to get information from the landowner and occupier about the land.
14. Another possible step might be for a council to ask for a retrospective (late) planning application for the unauthorised development. If the developer chooses to make a late application it allows the council to consider the development on its planning merits and decide whether to grant it planning permission.
15. If a council wants to take formal enforcement action, it must consider the unauthorised development against relevant planning policies and any other material planning considerations. The law says a council must then be satisfied issuing an enforcement notice is “expedient”. A person served with an enforcement notice has a legal right to challenge it.

The Council’s planning enforcement plan

16. The Council has a 2016 Local Enforcement Plan (‘the Plan’), which refers to the NPPF guidance (see paragraph 12). The Plan says enforcement complaints ‘remain high’. So, with limited resources, the Council will only act in the wider public interest where a breach has a serious amenity or environmental impact. The Plan expects people reporting a possible breach to use the Council’s ‘online enforcement complaint form’. The form needs people to give their name and contact details. The Plan says this means the Council can contact them about the report and tell them about the outcome of the enforcement investigation. The Plan lists breaches the Council will not pursue, which include:

• minor development causing no material harm to adjoining neighbours;
• minor development having no adverse impact on visual amenities for the wider public; and
• minor technical breaches that could not escalate and cause future harm.

17. On receiving an enforcement report, the Plan says the Council assesses the seriousness of the alleged breach and whether it will further investigate. The Council will contact the person reporting the breach within seven days to either:

• tell them it will not further investigate (see paragraph 16 bullet points); or
• acknowledge the online report.

18. The Plan says the Council aims to make an enforcement site visit within 14 days. The Council will then decide if the development needs planning permission and, if so, what its next step should be. Such next steps include taking no further action, inviting a late application, or taking formal enforcement action. Again, the Council will tell the person reporting the breach of the outcome.
19. Information published on the Council’s website says it ranks enforcement complaints as ‘high, medium and low’. An example of a ‘high’ priority case is demolition of a listed building. And a technical breach not in significant conflict with planning policy, is a ‘low’ priority. The Council’s information also says the investigation timescale for cases with:

• high priority is as soon as possible and before medium and low cases;
• medium priority is as soon as possible depending on the merits of the case; and
• low priority as soon as possible in date order of receipt.

Overview of the main relevant events

20. Several years ago, the Council granted planning permission to develop the Site, which is near Mr X’s home. The permission approved buildings on the Site for a ‘business or commercial’ use and limited retail sales. Before and during the building work, the Council received applications seeking changes to the original planning permission. The Council granted planning permission for the changes.
21. Eventually, building work on the Site neared completion. And Mr X said the new buildings were in use. Mr X became concerned about what he saw on the Site, which he believed was in retail use, and its impact on local roads and nearby homes. Mr X contacted the Council. The Council said it would investigate but, as Mr X raised many concerns, it would take time. The Council also asked Mr X to complete its online enforcement complaint form. Mr X completed the form and sent the Council a statement detailing his concerns.
22. A month later, the Council served the Site developer with a PCN (see paragraph 13) about possible breaches of permission planning conditions.
23. Two weeks later, Mr X reported changes near the Site he thought might lead to further unauthorised development. Mr X also sent the Council photographs and videos of large lorries causing road congestion when entering and leaving the Site.
24. The developer replied to the PCN and said the development was neither complete nor the Site yet in use.
25. The Council kept in touch with Mr X, letting him know its enforcement investigation was continuing. And, later, the Council said it would take more formal action as the developer had not responded positively to requests to address planning breaches on the Site. However, the Council said it could not “pursue a use that does not exist but obviously if an unauthorised use should arise then [it could] pursue at that time”.
26. Meanwhile, the developer applied to the Council for approval of details needed to comply with a planning condition. The developer also made a retrospective planning application seeking approval for development already on the Site.
27. Mr X then contacted the Council about the possible development he had raised two months earlier (see paragraph 23). Mr X said that development had now taken place. The Council acknowledged Mr X’s report of a further breach of planning control. Later, the Council told Mr X it had investigated his latest enforcement report and found a breach of planning control. The Council said it had asked the developer to remove the unauthorised development. The Council also said the buildings on the Site were not yet ‘fitted out’ and the new planning use had still not started.
28. Mr X continued to contact the Council saying the Site was in use and the use was retail. Mr X commented on the behaviour of the developer and of the Council in approving the Site planning applications. Mr X sent the Council information about the Site and asked for clarification of the planning use(s) allowed on the Site. Mr X was also in touch with his local councillor. The Council started replying to Mr X’s councillor. In contacting Mr X’s councillor, the Council said it needed to decide the developer’s most recent planning applications before further considering enforcement action. The Council also said it could not control what lorries came to the Site. And Mr X’s information did not establish a breach of planning control.
29. Meanwhile, the Council approved the condition details and refused the retrospective planning application (see paragraph 26). Council officers then prepared a report seeking approval to issue an enforcement notice to remove unauthorised development from the Site.
30. Mr X complained to the Council. Mr X said the Council had approved a series of planning applications allowing inappropriate development in an AONB. It had then failed to ensure the approved development complied with the planning permissions. Mr X also said the Council’s officers, in granting planning permissions and not taking enforcement action, were complicit in allowing the unacceptable development.
31. The Council acknowledged the complaint. About six weeks later, the Council contacted Mr X with an apology and said it needed more time to reply given all the information he had provided with his complaint. Two months later, the Council told Mr X it was still working on its reply as it had limited resources and the complaint was complex. Three months later, the Council told Mr X it was still considering the complaint and would reply in about three weeks. The Council’s proposed reply date passed and, after sending a chaser email to the Council, Mr X contacted the Ombudsman. The Council told the Ombudsman the complaint was complex, and Mr X had added new issues and so it needed longer than its normal 20 working days to reply. The Council said it would reply in about four weeks. The Council did not meet this reply date and Mr X came back to the Ombudsman.

Consideration

32. Most peoples’ homes, and the places they live, are important to them. I therefore recognise the strength and depth of Mr X’s concerns about development on the Site near his home. Mr X spent much time compiling information about the Site and its use, which I carefully considered. And yet, I did not find it necessary to address every point and query raised in Mr X’s papers and his correspondence with the Council. I found the key enforcement concerns raised by Mr X in his complaint were: use of the Site; building height; finishes; boundary treatments; landscaping; miscellaneous minor developments; and neighbouring unauthorised development. I focused my investigation on how the Council responded to these issues. In doing so, it was not my role to decide if any breach existed and, if so, what, if any, action the Council should take to address the breach. I considered if there was evidence the Council acted with fault in dealing with Mr X reports and reaching any enforcement decision. Without evidence of fault, I cannot question the Council’s resulting decisions (see paragraph 6).

Use of the Site

33. Mr X’s concern about use of the Site, which he said differed from that approved by the planning permissions, was at the heart of his complaint. The Council said it knew Mr X was concerned about use of the Site. Indeed, the Council’s PCN sought information about use. And, in reply to the PCN, the developer said the development was not complete and so not in use. The Council accepted the developer’s comments as it told Mr X it could not pursue a non-existent use. Mr X’s continued correspondence with the Council showed he disagreed and believed the Site was in unauthorised use. The Council told us it did not investigate ‘use’ of the Site because Mr X did not complete an ‘enforcement complaint form’ reporting the unauthorised use. Mr X has acknowledged he did not complete a form specifically reporting such a breach.
34. The evidence I saw did not show the Council communicated either clearly or promptly with Mr X about its enforcement investigation. If the Council considered ‘use’ of the Site ‘closed’ when it told Mr X it could not pursue a non-existent use, it should have made this clear. It did not. Instead, it said it could act if there was an unauthorised use. And Mr X continued to write about use of the Site. If that correspondence was inadequate to trigger an enforcement investigation, the Council should have told Mr X. Indeed, in late 2018, the Council asked Mr X to complete an on-line form after it received his detailed statement about alleged breaches of planning control on the Site. Mr X could therefore have reasonably expected the Council to repeat that request if it did not intend to act on his continued correspondence. The Council did not make its requirements clear and left Mr X writing in the belief and with the reasonable expectation that it would further investigate use of the Site. I therefore found the Council fell below acceptable administrative standards and was at fault.
35. The Council’s failure to act on Mr X’s continued correspondence about use of the Site would have caused him avoidable distress and frustration. Mr X also continued to live with uncertainty about whether the Site was in unauthorised use and, if so, how it affected his home.

Building height

36. The written description of a proposed development sometimes differs from that shown on application plans. This happened with an application for the Site. A plan showed an increased height for a building but did not include that increase in the written description of the proposed development. The Council did not notice the inconsistency and so did not consider the increased height before it granted planning permission.
37. In responding to us, the Council said it would have assessed the increased height against two main planning considerations: its impacts on neighbouring properties, and on the AONB. The Council explained how it found neither impact justified refusing planning permission. Having carefully considered the Council’s explanation, I saw no grounds to question its approach or, therefore, its resulting view. So, I have not found the Council’s oversight affected the planning outcome or, therefore, the position in which Mr X now finds himself in living near the building with its increased height. However, the Council had failed to explain its position to Mr X.

Finishes

38. The Council accepted a finish on the Site was part of an application refused planning permission (see paragraph 29). The Council pointed out its reasons for refusing planning permission did not include any planning objection to the finish. The Council also explained why it considered the finish was permitted development and so did not need express approval (see paragraph 10). The Council provided a reasoned and sustainable explanation for finding the finish was permitted development. I therefore had no grounds to question that decision. However, the evidence showed the Council failed to tell Mr X of its decision.

Boundary issues

39. The Council accepted the boundary treatment for part of the Site did not have planning permission and breached planning control. The Council’s response showed it visited the Site and gained information about the breach. That was a suitable and proportionate step to take to investigate the breach. The Council has also explained how it then assessed the breach to reach a decision on whether to take enforcement action. Again, this was a step I would expect a council to take to reach an enforcement decision.
40. The Council’s assessment was the agreed Site landscaping, which would mature, meant the visual impact of the unauthorised development was acceptable. And the unauthorised development did not cause highway safety concerns as it did not affect visibility splays for the Site access. The Council therefore decided enforcement action was not expedient. I found no evidence of fault in how the Council reached its decision and so could not question it (see paragraph 6). However, there was no evidence the Council told Mr X of its decision.

Landscaping

41. Mr X was concerned about reduced landscaping for the Site. The evidence showed the reduction arose from later planning permissions that changed the layout of the Site. Based on the last approved Site layout, the Council then agreed landscape proposals for part of the remaining land (see paragraph 29). So, while the landscaping did not extend over land originally shown as undeveloped on the original planning permission plans, this did not arise from Council fault.
42. However, the landscaping on the Site was not fully in line with the approved proposals. The evidence showed the Council understood how the on-Site landscaping differed from the approved proposals. Having considered that difference, the Council had the right to reach a view on the planning merits of what was in place and whether enforcement action was necessary. Here, the Council explained that, while the non-compliant work might be out of character, it had limited visual impact. So, it did not find it expedient to take enforcement action. I had no grounds to find the Council acted with fault in reaching that decision (see paragraph 6). But, again, the evidence did not show the Council told Mr X about that decision.

Miscellaneous development

43. The Council said Mr X had not used its ‘enforcement complaint form’ to report various minor works on the Site that were visible from the adjoining road. Mr X accepted he had not expressly reported these alleged breaches. However, Mr X said he expected the Council to consider what development was on the Site when it investigated the breaches he had specifically reported using the form.
44. Mr X’s position was understandable. I found the Council at fault in how it approached ‘use’ of the Site, which Mr X did not expressly report in an enforcement complaint form (see paragraphs 33 and 34). And yet, the primary responsibility for complying with a planning permission rests with the landowner/developer. If they fail to comply with their planning permission (or any other relevant legal rules) they risk enforcement action. Councils do not have a general duty to check sites to ensure development complies with relevant planning permissions. Most planning enforcement work is reactive, that is, councils respond to peoples’ reports of a breach of planning control.
45. Here, while visible from the public road, Mr X’s miscellaneous concerns were, for planning purposes, ‘minor’ developments. The evidence suggested not all those developments were in place when the Council made its enforcement visit. It was also clear the Council faced challenges in efficiently dealing with enforcement complaints. And the Council said it found Mr X’s correspondence and complaint “complex” and would need time to respond. So, on balance, I have not found the Council fell below acceptable administrative standards because it did not actively investigate these ‘minor’ developments raised during Mr X’s correspondence.
46. In reaching this view, I took into account that Mr X had now expressly reported these minor developments to the Council using its ‘enforcement complaints form’. So, the Council would need to respond to those reports in line with the Plan.

Development next to the Site

47. The Council investigated Mr X’s report of unauthorised development on land near, and in the same ownership, as the Site. After a site visit, an officer’s report led the Council to approve enforcement action against the development. The Council said, on legal advice, it decided to give the developer a final chance to remove the development before taking any formal action. The Council also said it later received an email from the developer’s agent saying the developer had advised the unauthorised development was removed. The Council said it therefore considered the matter resolved.
48. I saw no evidence the Council verified the agent’s report of what the developer had said. And yet, councils do not necessarily verify all information they receive. However, here, the Council also did not tell Mr X about the outcome of its enforcement investigation into this issue. (Mr X later stated the unauthorised development had not been removed.) So, the Council neither checked nor gave Mr X the opportunity to challenge what the agent reported. I found the Council fell below acceptable administrative standards in dealing with the issue.
49. However, the unauthorised development is not easily visible from Mr X’s property and he became aware of it from maps available on the internet. Mr X said the unauthorised development would increase traffic linked to the unauthorised use of the Site and that would cause him significant personal injustice. I carefully considered what Mr X said. However, the Council had yet to decide if any unauthorised use of the Site existed. And, while linking the unauthorised development to the Site was understandable, I saw no objective and independent evidence to support that link. The Council’s further enforcement investigations of the Site and nearby land might find such a link in the future. But, based on what has happened, I could not reasonably and properly find that how the Council had handled the unauthorised development caused Mr X significant personal injustice.

Complaints handling

50. The Council had a two-stage complaint procedure. At stage 1, the relevant Council service manager should respond within 20 working days. At stage 2, a senior Council manager should review the complaint and respond within a further 20 working days. Here, the Council did not meet its response time targets. And it failed to make timely contact to let Mr X know it would need significantly more than the published 20 working days to reply. The Council also gave Mr X specific dates by which it would reply but neither met those dates nor, again, contacted Mr X to explain why it could not do so. The Council has now recognised it did not deal with Mr X’s complaint satisfactorily. I agreed and found fault here.
51. I also found that poor communication by the Council was central to what wrong here. Mr X understandably detailed his many concerns in his continued correspondence. The evidence showed the Council failed to adequately manage that correspondence. That led to the Council not explaining what alleged breaches it was investigating or its later enforcement decisions to Mr X. If the Council had communicated clearly and promptly, Mr X would have known what the Council had investigated and how it had reached its decisions. Instead, Mr X was left not knowing what was happening and became increasingly frustrated as he watched events on the Site.
52. The Council then failed to manage and respond to Mr X’s complaint. That would have added to Mr X’s dissatisfaction with the Council. The Council also compounded its substantial and avoidable delay in dealing with Mr X’s complaint by breaking its promises to reply by named dates. In not managing Mr X’s correspondence, the Council also put him to avoidable time and trouble in further pursuing his concerns through his continued correspondence.
53. The Council has now explained it faced staffing issues and a substantial increase in planning complaints. These issues combined had badly affected its ability to respond to complaints in a reasonable time. However, the Council confirmed it was reviewing how it handled complaints about planning matters and intended to introduce changes in early 2021.

Agreed action

54. I identified fault at paragraphs 34, 37, 38, 40, 42 and 50 that caused Mr X unnecessary frustration, inconvenience and avoidable time and trouble. To put matters right in a suitable, reasonable, and proportionate manner, the Council agreed:

• (within 10 working days of this statement) to send Mr X a written apology for the frustration caused by its poor communication and delay in its complaints handling;
• (within 30 working days of this statement) to pay Mr X £200 in recognition of his avoidable frustration and inconvenience caused by its poor communication and broken promises;
• (within 30 working days of this statement) to pay Mr X £100 in recognition of his avoidable time and trouble in pursuing his enforcement concerns and complaint; and
• (within 10 working days of this statement) to start and then carry out an enforcement investigation into alleged breaches of planning control arising from use of the Site.

55. As the Council had started a review into its handling of planning complaints, I did not recommend any service improvements. However, the Council agreed to send us a copy of the new procedure on its introduction in early 2021. The Council also agreed to send us evidence of its compliance with each of the four recommendations in paragraph 54 within 10 working days of taking each action.

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Final decision

56. I completed my investigation, having found fault causing injustice, when the Council agreed the recommendations at paragraphs 54 and 55.

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Parts of the complaint that I did not investigate

57. A key concern for Mr X was that planning permissions had allowed development on the Site that was unacceptable in an AONB. The Council granted such planning permissions over many years and before 2018. A complaint about the grant of these planning permissions was a ‘late complaint’ (see paragraph 7). The planning permissions led to the gradual and expanded development of the Site. And yet, Mr X knew of the Council’s planning decisions and could have complained much sooner. I found no good reason to exercise my discretion and investigate how the Council processed planning applications for the Site before autumn 2018.
58. Mr X also complained about the actions of Council officers dealing with planning applications for the Site. Councils generally cannot stop developers either making planning applications or changing their minds about how to develop land. Once a council has a valid planning application, it needs to decide whether to approve or refuse permission for the proposed development. The available evidence showed officers assessed development proposals and presented reports that recommended the grant or refusal of planning permission. Those were steps I would expect council officers to take when handling planning applications. And I found no evidence to support Mr X’s serious allegations about the conduct of the Council officers. I therefore found no good reason to investigate Mr X’s concerns about officers’ conduct.
59. Mr X raised other planning matters for the Site that I did not investigate. For example, I did not investigate the Council’s decisions to refuse planning permission for some proposed development on the Site. A refusal of planning permission was the decision Mr X wanted and meant development could not lawfully take place. I also found no useful purpose in investigating enforcement issues resolved to Mr X’s satisfaction.
60. Similarly, I did not investigate Mr X’s concerns about planning applications the Council had not decided when he complained to us. Our role is to consider if councils have acted with fault in reaching their decisions. Until a council makes a decision, it has time to put right any alleged fault. Here, Mr X could raise with the Council his concerns about how it was processing applications. The Council could then ‘put things right’, if necessary, before it decided any planning application.
61. Mr X also raised matters linked to the Site that I have not investigated because bodies other than the Council are better placed to deal with them. For example, a local highway authority has legal responsibilities for safety on local public roads. So, East Sussex County Council, as local highway authority, could best address issues specifically about local roads and traffic.

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Investigator's decision on behalf of the Ombudsman