Summary: Mr C complains the Council failed to respond properly and take effective action in response to his reports about the commercial storage and dealing in scrap at a neighbouring property which he says has a harmful impact on the area’s amenity. The Ombudsman has found delay by the Council but considers the agreed actions of an apology and procedural review are enough to provide a suitable remedy to Mr C.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council has failed to respond properly and take effective action in response to his reports about the commercial storage and dealing in scrap at a neighbouring property.
2. Mr C says because of the Council’s fault, there is a harmful impact on the amenity of the area and property values and the site encourages pest infestations and presents a danger to highway users.

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What I have investigated

3. The complainant, whom I shall refer to as Mr C, complains the Council has failed to respond properly and take effective action in response to his reports from August 2018 to date about the commercial storage and dealing in scrap at a neighbouring property.
4. Mr C says because of the Council’s fault, there is a harmful impact on the amenity of the area and property values and the site encourages pest infestations and presents a danger to highway users.
5. The final section of this statement contains my reason(s) for not investigating the earlier period of the complaint.

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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. (Local Government Act 1974, section 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 read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party details. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

10. Planning authorities may take enforcement action where there has been a breach of planning control. Government guidance makes clear that enforcement action is discretionary an local planning authorities should act proportionately in responding to suspected breaches of planning control.
11. Section171A of the Town and Country Planning Act 1990 (the Act) defines a breach of planning control 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.

12. Where the breach involves carrying out development without permission, the authority may serve an enforcement notice if it is expedient to do so. It is for the planning authority to decide whether it is expedient to take action.
13. Section 171B of the Act sets out the time limits within which Councils can take enforcement action. Development becomes immune from enforcement if no action is taken:

• within four years of substantial completion, where there has been a breach of planning control consisting in the carrying out without planning permission of operational development (building, engineering, mining or other operations) in, on, over or under land;
• within four years, where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse;
• within ten years, for any other breach of planning control.

14. The Anti-Social Behaviour, Crime and Policing Act 2014 provides Councils and the police with the power to issue Community Protection Notices (CPNs) to prevent anti-social behaviour which is having a detrimental effect on the community's quality of life and is considered unreasonable. CPNs require the behaviour to stop and, where appropriate, require reasonable steps to be taken to ensure it is not repeated. Failure to comply is an offence and may result in a fine or a fixed penalty notice.

Background events

15. The Council served an enforcement notice in November 1996 against the then owners of the site about the use of a residential property for unauthorised use of the premises for the parking of commercial vehicles, the repair of vehicles and the sorting, dismantling and storage of associated materials, including scrap without planning permission. The notice required the cessation of the use of the premises for the parking of commercial vehicles and the repair of vehicles and to remove all associated materials, including scrap.
16. The Council took legal action when the owners of the site did not comply with the notice. The matter went to court in 2000 after the death of one of the owners. A court order required a site inventory which was completed and this identified a large number of items to be removed from the site. A subsequent site visit found the items had mostly been removed but for a flat bed truck which was later removed. The Council closed its enforcement file. The enforcement notice remained in place. Mr C says the order was to remove one vehicle from the road and park it on the property which was complied with at the time but subsequently activity on the site increased.
17. The Council received reports in 2001 and 2006 but decided the activities related to the highway rather than the site covered by the enforcement notice. There were allegations of harassment against the family of the site owners made against the Council in the local press at this time. The Council received a further report in 2007 abut the site and a request to use CCTV evidence. The Council contacted the police but decided not to take further action.
18. The Council completed a review of the case in 2012 and concluded the vehicle dismantling was outside the site and scope of the existing enforcement notice. It was noted that there were difficulties in gaining access and evidence of the on-site activities but it would be possible to serve a new enforcement notice about the storage of scrap subject to consideration of the lawful use of the site.
19. For clarity, the above information is provided for background only and I have not investigated the above actions for the reasons explained at paragraphs 32 to 34 below.

Key events from August 2018

20. The Council received an enquiry from a local Councillor about the site in early August 2018. The case officer visited the site and wrote to the site owner about a possible breach of the 1996 enforcement notice in August. The site owner’s solicitors contacted the Council at the end of August to query the enforcement notice. The Council confirmed this remained in place and sought compliance by the middle of October.
21. The case officer visited the site again at the end of October and considered there was a breach of the enforcement notice. The Council wrote to the site owner to say it was considering legal action.
22. The Council subsequently noted there were issues both about the scope of the existing enforcement notice and the lawfulness of any new enforcement notice. The Council sought legal advice which was provided in February 2019.
23. In the light of its legal advice, the Council concluded the existing 1996 enforcement notice remained in place and it could prosecute again under this subject to a new investigation but noted the issues around access and evidence. However, this notice related solely to scrap and storage associated with vehicle repairs and could not be used to extend to other types of scrap. The Council concluded there were no grounds to allow it to take action about the current activities on the site under the existing notice.
24. The Council the considered, based on its legal advice, if it could and should issue a new enforcement notice relating to the current activities on site of the sorting and storing of scrap.
25. The Council reviewed the available evidence including a plan of what was on site in 2000, aerial photographs going back to 2004 and its previous site visits. The Council concluded the use of the site for the sorting and storage of scrap had continued from 2001. As this was in excess of 10 years this use had become lawful in 2011 at the latest.
26. Mr C contacted the Council in April 2019 about the absence of action against the site owner following the August 2018 report. The Council responded in April to explain it no longer proposed any planning enforcement action and provided its reasons. The Council explained why the existing enforcement notice could not be used to deal with the current activities on site and these were now immune from enforcement action.
27. Although the police prosecution of a breach of an existing CPN it had previously issued was unsuccessful, the Council has confirmed this remains in place although it was amended by the court. There was a multi-agency enforcement meeting in July involving the police, housing groups, and the Council’s community protection and locality teams. This meeting agreed the ongoing concerns would be led by the Police. The Council does not consider it would be appropriate to issue its own CPN when there is one already in place.

My consideration

28. In reaching its decision it could not use the existing enforcement notice for the current activities on site and that those current activities were now immune from enforcement action the Council has visited the site, contacted the site owner, considered the site history and relevant information and sought legal advice. I cannot see any fault in the way the Council has reached its decisions in this matter. In these circumstances, there are no grounds on which to question the Council’s decisions.
29. However, there was a delay between August 2018 when the Council initially considered it may be able to take enforcement action under the existing enforcement notice and advising Mr C it could not do so in April 2019. I particularly note the Council was aware of the issues with using the existing enforcement notice and that the current use of the site was now considered immune from enforcement action in February 2019 but did not advise Mr C until April 2019. I also note the Council was in touch with Mr C during this period and confirmed it was still considering legal action in December.
30. On balance, I consider this delay constitutes fault which caused Mr C an injustice. Mr C understandably had his expectations unreasonably raised during this period.

Agreed action

31. I would ask the Council to consider the following actions to provide a suitable remedy to Mr C:

1. The Council should write to Mr C to apologise for the delay identified above and unreasonably raising his expectations within one month of my final decision.
2. 
   The Council should review its procedure to ensure in future there is an early consideration of whether legal advice is needed to decide if an existing enforcement notice can be used and questions of possible immunity when there has been a significant passage of time as here within three months of my final decision.

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Final decision

32. I have completed my investigation as I have found fault by the Council but consider the agreed actions above are enough to provide a suitable remedy.

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Parts of the complaint that I did not investigate

33. I have not investigated the full history of the Council’s actions about this site over the last twenty years as such a complaint would be caught by the restriction outlined at paragraph 7 above.
34. This is because Mr C was aware the Council had not taken formal enforcement action in response to earlier reports between 2001 and 2012 but did not complain to the Ombudsman until July 2019.
35. I have exercised the discretion available to me to investigate ongoing events from Mr C’s more recent contact with the Council in August 2018 about this matter.

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Investigator's decision on behalf of the Ombudsman