Summary: Mr X complains the Council failed to properly investigate enforcement reports he made about a commercial site to the rear of his home. We found there was fault by the Council. The Council agreed to make a payment to Mr X to reflect the additional time Mr X had to spend chasing the complaints. The Council also agreed to review an issue with its records and take a prompt decision on a retrospective planning application. This would enable it to decide upon any relevant enforcement action needed for the site in question.

The complaint

1. Mr X complains the Council failed to properly deal with reports he made about a breach of planning conditions at a commercial site behind his home. The use of the site outside conditioned hours and for uses not allowed by the planning permission causes disturbance to him.

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What I have investigated

2. I have investigated Mr X’s concerns that his more recent reports about planning breaches in 2019 were not dealt with properly. I have not investigated concerns about previous reports Mr X made going back to 2000. The reason for this is set out in the last section of this statement.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I spoke to Mr X and considered the information he provided. I asked the Council for information and considered its response.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

8. Mr X’s complaint concerns commercial units located behind his home. Mr X told us that he had been in correspondence with the Council about planning issues at the site over a number of years. Our investigation only concerns events from 2019 onwards.
9. I understand Mr X first complained to the Council about the site in 2019 in June. When doing so he noted his neighbour had raised concerns earlier in the year.
10. Mr X wrote a letter to the Chief Executive. His letter set out reports that the site was being used for activities that were not permitted, outside the permitted hours. He also noted conditions applied to the equipment that could be used and he stated this was also not being adhered to. He stated waste was being burnt and there was noise pollution.
11. The case officer telephoned Mr X following his letter and emailed him on 1 July. She provided her contact details. In her email the officer stated she was struggling to find the original decision notices which she would need to take the matter further. She asked Mr X to supply copy planning documents as they had discussed on the telephone. She stated she would treat Mr X’s concerns as an enforcement report rather than a formal complaint. She stated if Mr X was unhappy with the outcome of the investigation, Mr X could raise a formal complaint if he wished to. Mr X sent some information to the officer that day and thanked her for looking into his concerns.
12. Mr X sent a follow up letter to the Chief Executive on 22 July. He acknowledged contact from the case officer. He expressed concern that the Council had mislaid planning history documents for the site. He stated he had sent copies of any documents he had. His letter set out a further recent planning breach from 21 July. He stated a vehicle had been collected, the site was used before and after the permitted hours, waste was burned and there was noise pollution.
13. In September Mr X wrote to the Chief Executive for a third time. He stated he had written twice before but received no response.
14. The Council replied to Mr X on 3 October. It apologised there had been a lack of communication following Mr X’s letters. However, it noted there had been contact with the case officer on 1 July. The Council stated since 1 July the case officer had visited the site but they had not witnessed any further breaches.
15. The Council provided us with no evidence to show what action the officer took following Mr X’s report and the contact on 1 July. Although the Council told Mr X the case officer had visited the site but not witnessed any further breaches, it seems unclear if this visit took place or what the officer saw when they visited. I say this because the records the Council provided make no mention of a site visit taking place in 2019. No record of what the case officer made of the site and no assessment of the situation in 2019 was provided.
16. In October the Council told Mr X the case officer had written to the owner of the site and expected a response by the end of October. If the owner or occupier did not respond or comply, it would issue a Planning Contravention Notice (PCN). It told Mr X it was taking the complaint seriously and the case officer would keep Mr X informed.
17. In November Mr X wrote to the Chief Executive again. He stated he was disappointed they had not responded to his three previous letters. Mr X outlined an incident of noise in early November from the use of car body repair equipment. He noted that the site did not have permission for car body repair. He also noted there were continuous breaches of the conditions that limited the hours the site could be used. He stated breaches of planning at the site appeared to be continuing without challenge from the Council.
18. On 11 January Mr X sent a letter to the case officer. He stated this was the fifth letter he had sent to the Council and to date he had not received a written response to any of them. Mr X set out a further breach of planning conditions had occurred that day. He provided details and explained the owner of the site had given the tenant to believe the site’s planning permission allowed for a car body repair business. The tenant had recently installed equipment on that basis. Mr X stated the owner was on site on Mondays and Tuesdays and visitors could ring the bell on the gate or call his mobile to gain access. Mr X stated he felt a more formal approach was now required as he wished to have responses in writing. Mr X was frustrated that conditions continued to be ignored at the site.
19. Mr X also set out his view on the planning status of the site, referring to correspondence from the planning file. In addition to the conditions relating to equipment, noise and operating hours, he considered parking was restricted to certain parts of the site and there was no permission for outside storage.
20. Mr X copied his letter to a local councillor asking him to assist. In his email he stated “Apparently the archives cannot be accesses (sic) with the current software the council has. I consequently sent [the case officer] my planning copies”.
21. The councillor told Mr X that the case officer would reply directly. He apologised it had taken five letters to get to this point. He stated the officer had tried to access the site three times without success, so she had now contacted the landowner. The landowner agreed to make the site occupiers aware of the issue. No unsuccessful attempts at site visits were recorded against the enforcement record the council provided.
22. A new case officer took on the case at the end of January. The Councils records show they visited the site on 27 January. They met the landowner and someone from the car body repair business. The Council’s site visit notes described the various buildings on the site. The notes recorded what the officers were told about the use of the larger building by the care body repair business. The car body repair business admitted a breach on 11 January and acknowledged the operating hours conditions that existed. The officers noted another business’s use of the building. The officers also noted items stored outside and where cars were parked.
23. On 28 January the new officer emailed Mr X to say what she had found. The officer noted that three businesses used the site. Two storage sheds on the site were used by a garage business. She stated the sheds did not have restricted hours of use. The officer stated the largest building was used by a car body repair business and another business. The hours of use were restricted by condition. Also, the use of this building was restricted and the use for car body repairs was not permitted. She stated the car body repair business had agreed to submit a planning application to change the use. The officer told Mr X that if the Council granted this permission it could look to impose new conditions regulating their use of the building and the area outside.
24. The officer stated she had written to the third business explaining the permitted hours of use that must be adhered to. The officer told Mr X she would review the situation in a month. The officer explained to Mr X in her email that if they needed to take formal enforcement action for a breach of operating hours, they would need to be able to identify which company was responsible. So, they asked Mr X to include this in any log or information he provided if possible.
25. The officer stated they expected items left outside within the site to be removed and this would be observed periodically.
26. On 3 February Mr X challenged the view that the two storage buildings did not have restricted hours of use. He said a decision to permit the retention of the sheds in 2009 noted conditions from a planning application from 1966 still applied. These included authorised hours of operation and restrictions about the use of the outside yard areas. In reply the case officer asked Mr X if he could supply a copy of the 1966 decision notice.
27. The case officer responded on 5 February. She stated the comments made in 2009 were not enforceable in themselves (they were informative). To be able to take enforcement action she would have to establish what the 1966 conditions stated. She would also need to understand if they remained applicable in the light of later planning permissions at the site. The officer stated it was also possible that if a planning breach had occurred for more than ten years, it would be immune from enforcement action. The officer told Mr X she was awaiting the retrospective planning application and would be able to consider the issues about the external use of the site when this was submitted. The officer re-iterated, if the application was acceptable, the Council could look to impose other restrictions, including on the use of the external areas. She stated the provision of a marked vehicular parking/delivery layout and restrictions on use would be something considered by the case officer.
28. On 10 March the officer carried out an unannounced visit to the site. Her notes stated the site was being tidied and waste items were in the process of being removed. The officer noted the car body repair business were checking their planning application and intended to submit it the following week.
29. On 20 May the officer visited the site. Notes on the Councils file stated, “Front of site clearer than before – visual harm addressed.” She couldn’t access the site so she emailed to chase the submission of the planning application.
30. On 1 June the business sent an update and submitted an application on 9 June. The application was invalid, and the business was asked to address several issues in July. At the time we investigated Mr X’s complaint, the Council was waiting for the business to address the issues with the retrospective planning application so it could be considered. The Council told us the enforcement investigation was ongoing at the time of our investigation.

Was there fault by the Council

31. Based on the information the Council provided, its response to Mr X’s enforcement reports in 2019 was poor. Mr X raised concerns in June 2019, but there is no record of any action being taken or assessment of the site being made between July and October. Contact details were available for one of the main businesses on site, and there is no indication that the case officer used these to make contact with the business or to arrange entry to the site.
32. It took until October to write to the site owner. This could have been done much sooner, especially if there were issues accessing the site. Overall, there seems little or no evidence of a meaningful investigation of the concerns Mr X raised until the site visit in January 2020, some six months after the issues were raised in June 2019.
33. The action taken by the new case officer from January 2020 was appropriate to follow up Mr X’s concerns. They visited the site on several occasions and discussed the issues with the businesses and the site owner. Officers stated they would monitor the issues Mr X was reporting and asked Mr X to maintain a log. These are steps we would expect councils to take. I have not seen evidence that any logs were returned by Mr X. I note the decisions about Mr X’s concerns have not yet been made as the investigation is ongoing.
34. Requesting a retrospective application is common practice to resolve concerns about the use of a site. It allows councils to consider if the unauthorised use is acceptable, possibly subject to conditions. If it is not, and the use continues, we would expect councils to go on to consider enforcement action. Although it took some time for the car body repair business to return a retrospective planning application. The overall approach taken here is correct and does not represent fault by the Council. The application is still being considered.
35. Unfortunately, the time taken to pursue this planning application was unavoidably affected by the lockdown of the country due to Coronavirus. This began in March 2020. So, I do not consider there was fault in respect of this delay.
36. It is of concern that some of the council’s planning records appear to have been unavailable to officers both in July 2019 and February 2020. The Council told me only one application had an incorrectly scanned decision notice and this had not prevented the investigation proceeding. However, in July 2019 an officer told Mr X she had “struggled to locate the original decision notices”. She noted these were required to take the matter further and she asked Mr X to send her copies that he had. The new case officer asked Mr X to supply the 1966 decision notice in an email in February 2020. So, it appears to be more of an issue that solely the 1966 decision notice. It should not be necessary for officers to request planning documents from members of the public. On balance, it seems evident there was some sort of problem with access to the Council’s planning records. A record of key planning decisions should be properly maintained by the Council, and accessible to officers, so this was fault. As Mr X was able to provide documents to the Council it does not appear to have caused any significant injustice in terms of the investigation, but it is fault nonetheless.
37. I found there was a significant delay responding to some of Mr X’s letters. This too was fault. But, I did not find there was a failure to send any response. I say this because Mr X’s first letter prompted the original case officer to contact him on 1 July. There was a long delay responding to the letter Mr X sent in June (but the Council responded to the June and September letters in early October). There was no written response to Mr X’s November letter. However, the original case officer indicated that they spoke to Mr X in response to it. In January 2020 the Council responded to his letter of 11 January and there was then more ongoing contact and action by the new case officer from that time. Although Mr X wrote to the Chief Executive, it is not fault for correspondence about planning enforcement matters to be dealt with by other officers.
38. I can make no judgement on the planning status of the site. However, given there were delays at the outset, and (unavoidable) further delay due to Coronavirus I would ask the Council to reach a prompt decision on the retrospective planning application and then address each of the related enforcement issues Mr X raised.

Agreed action

39. Within four weeks of this decision the Council agreed to:
• Recognise the delay in taking initial action on the issues Mr X raised and the time and trouble Mr X spent chasing and raising his complaint. To do this the Council agreed to make a payment of £150 to Mr X.
• Review why officers were unable to access history planning records and clarify what the issue was. It should let us know what (if any) action is necessary to remedy the problem, for example, training & guidance for officers or systems alterations.
40. The Council should reach a prompt decision on the retrospective planning application for the site in question and it should follow this up with a written explanation of its view on each of the enforcement issues Mr X raised.

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Final decision

41. There was fault by the Council. I have now completed my investigation.

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Parts of the complaint I have not investigated

42. We generally expect complaints to be brought to us within 12 months of someone knowing about the issues subject to complaint. We do have discretion to consider older events.
43. Mr X complained to the Council about planning breaches in 2019. We have considered the recent issues he raised and the way the Council considered them. However, we will not extend our investigation to consider the reports Mr X made about the site since 2000. Mr X was aware of the issues at the time they occurred and could have brought a complaint about them much sooner.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman