Summary: Mr B complains that the Council delayed in taking enforcement action against the unauthorised business use of a residential property near his home as a result of which he has suffered with noise and loss of value to his property. The Ombudsman finds the Council delayed in investigating Mr B’s concerns and keeping him informed. The Council has agreed to apologise to Mr B and pay him £200 in recognition of the time and trouble and frustration caused.

The complaint

1. Mr B complains that the Council has delayed in taking enforcement action against unauthorised business use of a residential property near his home as a result of which he has suffered with noise and loss of value to his property.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

3. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
4. I have written to Mr B and the Council with my draft decision and considered their comments before making a final decision.

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What I found

Legal and administrative background

Planning enforcement

5. Planning enforcement is discretionary and formal action should be taken only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
6. Councils often use planning contravention notices (PCNs) to obtain information about alleged breaches of planning control, before considering commencing enforcement action. A PCN allows a council to require any information it wants for the purposes of enforcement and can be used to invite the recipient to respond constructively about how any suspected breach of planning control may be remedied.

Certificates of lawfulness of existing use or development (CLEUD)

7. Section 191 of the Town & Country Planning Act 1990 enables any person to ascertain whether:
• any existing use of buildings or other land is lawful;
• any operations which have been carried out are lawful; or
• any failure to comply with a planning condition or limitation is lawful.
8. A certificate is not determined on the planning merits of the case but on the facts available. It is for the local planning authority to decide whether the evidence available is sufficient to allow it to make a decision.

Statutory nuisance

9. The Environmental Protection Act 1990 states councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance may include:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells from industry, trade or business premises.
10. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• injure health or be likely to injure health.
11. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. Officers will then assess the evidence and consider factors such as the timing, duration, and intensity of the alleged nuisance. They will use their professional judgement to decide whether a statutory nuisance exists.

Key facts

12. On 2 July 2018 the Council received a complaint about a change of use of a residential property to a timber business
13. Enforcement officers visited the site. They were unable to gain access but saw advertisements for the business attached to the gate, lengths of timber in the front garden and driveway and stored within a lean-to structure and power tools for carpentry/joinery. The driveway had a large flatbed van parked on it with timber loaded onto it.
14. On 26 July 2018 the Council served a PCN on the landowner (Mr X) requiring information. He responded on 15 August 2018 stating the business was lawful.
15. Mr B lives close to the site. On 16 August 2018 he contacted the planning enforcement team asking what was happening with the investigation. He said he wished to sell or rent his property shortly and was concerned about the effect of the timber business on his plans. The Council explained it was still in the process of clarifying matters raised by Mr X over the potential lawfulness of the business.
16. Mr B contacted the Council again on 19 and 23 November 2018. The planning enforcement team responded explaining the investigation was ongoing and it was likely the responsible officer would prepare a report considering the expediency of taking formal enforcement action.
17. In February 2019 Mr B contacted the Council again asking for an update. The planning enforcement team responded on 5 March 2019 explaining the investigation was ongoing and the enforcement officer would be discussing the matter with the team leader to decide how to proceed.
18. Having heard nothing further, Mr B submitted a complaint about the Council’s lack of action on 19 May 2019. The principal planning officer (Officer A) responded at stage 1 of the Council’s complaints procedure stating that, having considered the information obtained during the site inspection and in response to the PCN, the Council considered there was a breach of planning control and had written to Mr X giving him three options to address the breach within 28 days (10 June 2019). The three options were:
• cease the use of the business and use the dwelling for its permitted use;
• submit a CLUED to demonstrate the legitimacy of the development; or
• submit an application for planning permission in an attempt to retain the development.
19. Officer A said if Mr X did not comply the Council would consider the expediency of taking formal enforcement action and a decision would be made on this no later than 1 July 2019. He said he had asked the Council’s environmental regulatory team (ERS) to investigate Mr B’s complaint about noise and they would contact him. Mr B responded asking Officer A to refrain from referring his details to the ERS for the time being as he felt the matter should be dealt with as a planning enforcement issue.
20. Officer A said he had already contacted the ERS and the purpose of involving them was partly to support the enforcement case and secondly to see if the matter could be addressed separately under their legislation. He confirmed ERS would not contact Mr B directly and the planning enforcement team would continue to investigate the impact of noise on his amenity as part of the planning investigation.
21. On 17 June 2019 Officer A wrote to Mr B explaining Mr X was claiming lawful use and, in light of recent correspondence from him, the Council had agreed to give him until 29 July 2019 to submit an application.
22. Mr B was unhappy with this and asked to escalate his complaint to stage 2. The Development Manager responded on 3 July 2019. He accepted there had been a delay in the consideration of Mr B’s initial enforcement complaint and apologised for this. He explained Mr X had requested more time to apply for a CLUED because of personal circumstances and the Council had agreed because formal action should only be considered once all reasonable attempts to remedy the breach had been considered.
23. The Council refused Mr X’s application for a CLUED on 11 July 2019.
24. On 6 September 2019 Mr B contacted the ERS to report a noise issue. He explained he had had to move out of his property because of the noise and was trying to sell it. The ERS asked Mr B to provide the log sheets which he had been asked to complete previously. Mr B did so.
25. Mr X did not appeal against the Council’s refusal of his application for a CLUED within the time limit. So the enforcement case was reopened in October 2019. The Council sent Mr B an update.
26. On 16 October 2019 the ERS wrote to Mr X advising it had received a complaint about noise nuisance and would be investigating.
27. On 29 October 2019 an ERS officer visited Mr B’s property to witness the noise and installed noise monitoring equipment which was left in place for a week. The noise recording did not substantiate a statutory nuisance so ERS were unable to take any action.
28. On 19 November 2019 the ERS officer explained to Mr B that they did not have the necessary level of evidence to establish a statutory nuisance and would need to reinstall the equipment to gather further evidence. He asked Mr B to continue filling in the log sheets.
29. Meantime, enforcement officers prepared a report for the planning committee on the expediency of taking enforcement action. They consulted with the Highways Department for their views and contacted ERS who confirmed they were investigating the noise from but had not yet substantiated a statutory nuisance.
30. Officers sent a copy of the report to Mr B and Mr X on 1 November 2019. It recommended the Council issue an enforcement notice.
31. The report was presented to the planning committee on 12 November 2019. The committee accepted the recommendation to take enforcement action because the development was deemed to be detrimental to the character of the area, highway safety and the amenity of neighbouring properties.
32. On 14 November 2019 the Council issued an enforcement notice requiring Mr X to cease using the land for business purposes and remove all associated vehicles, tools/equipment, materials and products by 17 December 2019 unless an appeal was made beforehand.
33. On 16 December 2019 the Planning Inspectorate notified the Council they had received an appeal. Mr X alleged the use of the land was lawful because he had operated a business from the site for over 10 years.
34. In January 2020 the Council received notification from the Planning Inspectorate that the appeal had begun. So the enforcement notice is on hold pending the outcome of the appeal.

Analysis

35. Whether something is a breach of planning control is a matter of fact and degree and is a matter for the professional judgement of officers depending on the merits of the case. Likewise, it is a matter for officers’ professional judgement as to whether enforcement action is appropriate.
36. There are no statutory timescales in which enforcement action should be taken. However, the Ombudsman will find fault where there is unnecessary or unexplained delay and where this results in continuing harm to the complainant.
37. There was no delay in the Council visiting the site and serving a PCN. Mr X responded on 15 August 2018 but it was not until nine months later, in May 2019, that the Council decided there was a breach of planning control and wrote to him asking him to address the breach within 28 days.
38. I have seen no evidence as to why the Council did not reach a decision on whether there was a breach of planning control and write to Mr X requiring him to take action sooner. It seems to me that it could have reached a decision by the end of 2018 but allowed the situation to drift. The development manager accepted in the stage 2 response that there had been a delay in considering the initial enforcement complaint. This was fault.
39. During the same period the Council failed to regularly update Mr B who had to write to the Council several times asking for updates and make a formal complaint.
40. The delay in progressing matters and the failure to communicate regularly with Mr B caused him frustration and uncertainty about how the Council was responding to his concerns. He was also put to unnecessary time and trouble.
41. In its stage 1 response, the Council said that if Mr X did not remedy the breach by 10 June 2019, it would reach a decision on whether to take enforcement action by 1 July 2019. It subsequently agreed to extend the time for Mr X to submit an application until 29 July 2019.
42. This is a decision the Council was entitled to take. Government guidance and the Council’s policy is that formal action should only be used as a last resort if informal attempts to resolve the breach have failed. Councils have wide discretion about what enforcement action they may or may not choose to take. In these circumstances, there are no grounds to question the merits of this decision.
43. Mr X submitted his application for a CLUED within the extended deadline and the Council refused the application on 11 July 2019. Officers then consulted with the Highways Department and ERS before preparing a report for the planning committee to consider in November 2019. I find no significant delay in doing so. An enforcement notice was issued within two days of the planning committee. I therefore find there was no unnecessary delay after May 2019.

Agreed action

44. To remedy the injustice caused, the Council has agreed that, within one month of this decision, it will:
• send a further written apology to Mr B for the delay in progressing the investigation and failing to update him on a regular basis; and
• pay Mr B £200 as a token recognition of the time and trouble and frustration the faults identified above caused him.
45. It has also issued a reminder to enforcement officers about the importance of communicating regularly with members of the public who request an enforcement investigation.

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Final decision

46. I uphold Mr B’s complaint.
47. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman