Summary: Mr X complains about the Council’s refusal to take planning enforcement action and its poor complaint handling, causing him stress, inconvenience and damage to his property. The Ombudsman finds no fault in the Council’s decision making on enforcement action. The Ombudsman finds fault in the Council’s handling of Mr X’s complaint and recommends it takes action to prevent recurrence.

The complaint

1. Mr X complains the Council has refused to take enforcement action against a breach of a planning condition and delayed dealing with his complaint. Mr X says he has suffered stress, inconvenience, trespass and damage 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. 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) and 26A(1), as amended)
3. 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. 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

7. 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

8. I spoke to Mr X and I reviewed the documents provided by Mr X and the Council, including the complaint correspondence. I also reviewed the relevant planning decision notice, available to view on the Council’s website. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Planning enforcement

9. It is at a council’s discretion whether to take enforcement action on a breach of planning control and what action to take. Councils should publish details of their enforcement policy.
10. I note the Council publishes its planning enforcement policy on its website. This outlines the actions it will consider taking in response to a breach of planning control.

Complaint policy

11. The Council publishes it complaints process on its website. This says it will acknowledge a complaint within three working days of receipt. It will respond within 15 working days or say when it can give a full reply.
12. If a complainant remains unhappy they can write to the Chief Executive’s Department where it will carry out a separate, independent internal investigation of the complaint.
13. It will send an acknowledgement within three working days and respond within 21 working days or say when it can provide a full response.

What happened

14. The Council granted planning permission for a major development in 1996. One of the conditions, Condition Y, said the premises could not be occupied until space had been set out, in accordance with the plans, to accommodate parking clear of the highway. This was to ensure highway safety, the free flow of traffic and to prevent inconvenience to other road users.
15. Mr X says he moved into his property in 1997. He says every house on the development had a double garage and at least two visitor parking spaces within its curtilage.
16. Mr X says in 2016 the owners of the development allowed residents to park along his road, Road A, by putting up a sign for parking. He says this caused him difficulty entering his property and visitors trespassed on his land. He tried to resolve this with the owners to no avail. His solicitors then suggested he report a breach of planning to the Council as parking on Road A was not in accordance with the plans or Condition Y.
17. Mr X reported the breach to the Council in October 2018. Mr X and the Council continued to correspond, with the Council maintaining there was no planning breach. Mr X says he gave the Council two opinions, one from a solicitor and one from a planning expert, both concluding there was a breach of Condition Y.
18. On 17 April 2019 Mr X complained to the Council that it had refused to take action on the reported breach.
19. The Council acknowledged receipt on 16 May and said it would try to respond in 15 working days.
20. On 12 July the Council sent further correspondence apologising for the delay and that it would try to respond as soon as possible.
21. The Council has provided a copy of its response to Mr X’s complaint, also dated 12 July. I note it apologised for the delay, due to competing work pressures. The Council explained to take enforcement action there would need to be a condition or other legal agreement requiring no parking on the roads in the development. However, there was no such condition or agreement restricting parking and therefore nothing that it could enforce. It said this was explained in previous emails.
22. Mr X complained to the Ombudsman as he did not receive the Council’s response of 12 July 2019 until October 2019 and doubted the Council sent it in July. Further, he noted the response was sent by staff from the planning department which compromised fairness and impartiality.
23. Mr X sent a further complaint to the Council on 28 October 2019. He complained about its handling of his first complaint. He maintained the Council was wrong to say there was no breach of Condition Y. And, the Council could resolve the matter simply by asking the current owners to remove the sign.
24. On 11 December the Council apologised for the delay, due to a staffing change of the person dealing with the complaint. It said it would respond by 20 December.
25. The Council provided its final response on 20 December. It said Road A is privately owned and managed therefore it has no jurisdiction to ask the owner to remove the sign. It explained Condition Y is in a standard form and does not restrict parking on Road A. Further that parking conditions should not be used to control parking on roads which would be controlled under the Highways Act or by the private owners of the road. This is a private dispute between Mr X and the owner of the road.
26. In comments on my draft decision Mr X maintains the Council’s decision is incorrect and says:
• It is clear Condition Y prevents parking on Road A.
• The developer did not apply for and did not receive planning permission for any parking accommodation other than within the curtilages of the individual properties. Additionally, the Council gave no approval for parking spaces on the development other than within the curtilages of each property.
• In addition to suffering trespass on and damage to his property, an emergency vehicle could not reach a property because of the parked cars. This concerns him as he is at risk of strokes and may need emergency services.
• The Ombudsman rather than the courts should decide on the interpretation of Condition Y.

Findings

27. Condition Y ensured parking spaces were provided in accordance with the plans before the properties were occupied, so there was space for parking clear of the highway. I note Condition Y does not expressly say people cannot park on the highway or Road A, only that there must be space for parking clear of the highway.
28. The planning permission required compliance with Condition Y before anyone moved into the development. Therefore, any failure to comply would have occurred many years ago and any complaint to the Ombudsman in this regard would be late. Further, any complaint about the wording of Condition Y or that the Council failed to impose a condition to expressly prevent parking on Road A, would also be late.
29. However, Mr X’s complaint that the Council has not taken enforcement action against the alleged breach is within 12 months and I will consider this complaint.
30. The Council must first decide if there has been a breach of planning control and then decide whether to take enforcement action. The Council considers there is no breach of planning control as there is no condition or other legal agreement preventing parking on Road A. I note Mr X disagrees with this view as he considers Condition Y does indeed prevent parking on Road A and because there is no permission allowing parking elsewhere.
31. I cannot question whether the Council’s interpretation of Condition Y is right or wrong, simply because Mr X disagrees with it. Rather, I must consider if there was any fault in how the Council reached its decision. The Council considered Mr X’s views, the wording of Condition Y and, its remit as planning authority in reaching its decision that there was no breach of planning control. The Council considered all relevant information and followed a proper decision making process. I therefore find no fault in how the Council reached its decision that there was no breach of planning control.
32. Insofar as there may be further legal argument about the interpretation of Condition Y, I consider the courts would be the more appropriate forum to determine such a dispute.
33. The Council will consider enforcement action only if it has identified a breach of planning control. As the Council decided there was no breach of planning control it did not need to consider or take enforcement action. I therefore find no fault by the Council in this regard.
34. There was a significant delay from the date Mr X complained in April 2019 to the Council’s acknowledgement in May and then its response in July. While I acknowledge Mr X did not receive the July response, as the Council has provided a copy I accept on balance it was sent. There was also a significant delay in the Council’s response to Mr X’s further complaint of October 2019. These delays amount to fault.
35. Mr X spent longer in the complaints process than necessary, though the outcome remained the same. I note the Council has already apologised to Mr X and explained the reasons for the delay. I am satisfied with its action in this regard. However, the reasons for delay appear to be systemic and may cause others injustice. I therefore consider the Council should take action to prevent such delays in future.
36. I acknowledge Mr X is unhappy a member of the planning department responded to his first complaint, however this is not contrary to the Council’s complaints policy and does not amount to fault.

Agreed action

37. To remedy the injustice set out above I recommend the Council carry out the following actions within three months of the date of my decision:
• Identify the reason for the late acknowledgement of Mr X’s first complaint and take action as necessary to ensure complaints are acknowledged promptly in future;
• Take action to ensure there is oversight of complaints in order to meet timescales even where there are changes in staff and;
• Inform the Ombudsman of the actions taken.
38. The Council has accepted my recommendations.

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Final decision

39. I find no fault in the Council’s decision making process on taking enforcement action but I find fault in the Council’s complaint handling. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman