Summary: We found avoidable delay by the Council in responding to continuing non-compliance with an enforcement notice affecting land near X’s home. To put right the frustration the delay caused X, the Council agreed to decide what further enforcement action it would take and quickly act on that decision. The Council also agreed to tell X of its decision.

The complaint

1. X said the Council failed to secure compliance with an enforcement notice dealing with unauthorised development near their home. X said the Council could not explain its delay or say what it would do, and when, to enforce the notice.
2. X said the unauthorised development both overlooked their home reducing their privacy and was noisy causing great inconvenience. X wanted the Council to act to ensure compliance with the enforcement notice.

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The Ombudsman’s role and powers

3. 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)
4. Where we find fault, we must also consider whether such 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 have:

• considered X’s written complaint and supporting papers;
• talked to X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared, where possible, the Councils comments and supporting papers with X; and
• given X and the Council an opportunity to comment on a draft of this statement and considered their responses before reaching a final decision.

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What I found

Background

7. Most development, which includes building and other works and a material change in the use of land, needs planning permission from the local council. If development takes place without the necessary planning permission, there will be a breach of planning control. Councils should investigate reported breaches but do not have to act against every breach they find. Government guidance refers to councils’ discretion to take enforcement action and says they “should act proportionately in responding to breaches. 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. It must then be satisfied that issuing an enforcement notice is “expedient”. People have legal rights of appeal against an enforcement notice. Appeals are first made to the Planning Inspectorate (PINs), whose decisions may then be challenged in the courts.
8. An enforcement notice will set out the breach or breaches of control and what the person receiving the notice must do and by when to address each breach. Each enforcement notice will include a date on which the notice ‘takes effect’ but, if a valid appeal is made to PINs (and the courts), this date will be set back. Once a notice takes effect, this triggers the time limits in the notice for the recipient to act to address each breach.
9. It is a criminal offence to not comply with an enforcement notice once it takes effect. Councils usually apply the Regulator’s Code and the Director of Public Prosecution’s Code for Crown Prosecutors in deciding whether to start criminal prosecutions. Under these codes, councils must apply evidential and public interest tests to each case when considering a possible prosecution. The evidential test includes an assessment of the sufficiency, admissibility, and reliability of relevant evidence. The public interest test includes matters such as the seriousness of the offence and the personal circumstances of the offender, for example, their age and health. If prosecuted for not complying with an enforcement notice, people may use a legal defence that they have done everything they could be expected to do to comply.
10. Councils also have powers to enter land to do enforcement work if the owner fails to comply with a notice. Councils may also recover the reasonable costs of such work from the landowner. Councils may also ask the courts to grant an injunction to restrain a breach of planning control.
11. Councils have powers to withdraw their enforcement notices and to change the contents of a notice, including time limits for dealing with breaches. And, provided they meet legal time limits, councils may take further enforcement action on a breach they have already taken enforcement action against.

What happened

12. The Council issued an enforcement notice against unauthorised development near X’s home (‘the Notice’). The Notice set out the steps the landowner had to take to deal with the unauthorised development. The Notice effectively recognised that some steps would need more time than others to complete. So, the Notice included two dates for compliance. The Notice set out the steps needed by each of the two dates. In this statement the earlier compliance date and its linked steps are ‘the First Date’’ and ‘the First Steps’ and the later date and its steps are ‘the Second Date’ and ‘the Second Steps’.
13. A few weeks after the First Date, the Council’s enforcement case officer visited the site. The Council then wrote to the landowner saying there was compliance with the Notice for the First Steps.
14. In the months that followed, contact with another body continued between the Council and the landowner about the Notice. Action linked to this contact was not complete when the Second Date passed. (Completion of this action took place soon after the Second Date.)
15. The enforcement case officer then visited the site and found most of the Second Steps outstanding. The enforcement case officer left the Council’s employment and the case passed to another enforcement officer. About two months after the Second Date, the new case officer had reviewed the case and was seeking advice from senior planning officers and the Council’s lawyers.
16. X then complained to the Council saying it had not enforced the Notice although it was six months since the Second Date. In reply the Council recognised X’s frustration. It said its enforcement officer had visited the site and found partial compliance with the Notice. As X’s comments suggested unauthorised development had restarted, it would visit again to check the position. The Council said it was resolving the remaining Second Steps but could not give X a date for securing compliance with them. It would be asking the landowner why some Second Steps were incomplete. It could then better consider what further enforcement action might be appropriate. The Council said it would update X after its visit and “once the matter has been concluded”.
17. About a month later, the enforcement case officer visited the site and met with the landowner. The Council found no evidence the unauthorised development X referred to in their complaint had restarted. About two weeks later, and after a chaser email from X, the Council said a site visit had taken place. The Council said privacy laws prevented it from giving X details of the visit. And, as the case was complex, senior officers would discuss the site next month.
18. A month later, X asked the Council for an update. The Council said officers had discussed the case. It also confirmed the unauthorised development had not restarted and it was still investigating how to deal with the remaining Second Steps. After another month, the Council wrote to the landowner setting out a possible way forward and asking for a response within three months (‘the Letter’).
19. Meanwhile, X had brought their complaint to the Ombudsman. In responding to the Ombudsman, the Council said it had not unduly delayed enforcing the Notice. It considered each case on its merits and this case was complex needing assessment before decisions and actions took place. It had been appropriate to try to work with landowner but there was no agreement on its suggested way forward. So, it now had to consider other actions. The Council said the circumstances of the case had changed and it had to take account of human rights and equalities laws in deciding how to act.
20. The Council also said it responded to enquiries about breaches of planning control but did not actively update residents about breaches. It had applied its approach to this case, which showed it responded to contact from X. The Council explained it could not provide details of enforcement investigations to residents. This was because investigations concerned other people and their land, and the law prevented them sharing such information. The Council confirmed it would tell X of the outcome of the case.

Consideration

21. The central issue in X’s complaint concerned the time the Council was taking to secure full compliance with the Notice. The Council did not accept it had unduly delayed enforcing the Notice. So, a question for me was whether the evidence did show avoidable delay by the Council.
22. The Council knew, from a site visit shortly after the Second Date, the landowner had not carried out most of the Second Steps. And yet, the evidence showed it was about a year between the Second Date and the Letter (see paragraph 18). This was a long time. During that year, the Council referred to two officer meetings and two emails from its enforcement officer to its lawyers. Those actions took place about two to five months after the Second Date. In the following six months, after X complained, officers made a site visit and held another meeting before sending the Letter. Based on this evidence, there was avoidable delay. I therefore found fault by the Council.
23. I considered what the Council said about the complexity of the case and changing circumstances. However, the evidence did not show that planning policy or other planning considerations had changed since the Council issued the Notice or it was upheld, with minor changes, by PINs on appeal. The Council also knew about the landowner’s personal circumstances by the PINs appeal. PINs did not find those personal circumstances justified substantive changes to the Notice or the First and Second Dates.
24. I also considered that a new officer took on the case after the Second Date. And yet, staff changes take place regularly in councils. Councils should therefore plan for such events. A council should have good administrative practices and procedures to ensure such changes take place smoothly with new officers having access to clear and full records about a case. Overall, based on the available evidence, I did not find the Council’s comments, about there being no undue delay, persuasive.
25. X’s complaint also referred to the Council not providing updates about progress with the case. However, I have found there was little substantive progress the Council could have updated X about before they complained. Once X and the Council were in touch, it promised to update them after a site visit (see paragraph 16). The Council did not do this in the two weeks before X chased it for an update. I have no doubt the Council’s failure to keep its promise will have been annoying for X. And yet, overall, the Council’s replies to X made clear it could not share information about its investigation, but it would tell them of the outcome of the enforcement case. So, while the Council’s approach to residents’ correspondence might be frustrating for X, I did not find fault here especially as it replied quickly to contact from X.
26. Having found fault by the Council, I had to consider how such fault affected X. I had no doubt X found the continuing non-compliance with the Notice frustrating and unacceptable. But did the delay cause any greater injustice? I thank X for confirming the unauthorised development they found noisy had stopped. The partial compliance with the Notice also meant other unauthorised development had gone from the site. The substantive remaining unauthorised development was a significant distance from X’s home. I did not find the available evidence suggested that unauthorised development and its associated works had a significant and direct impact on X’s home and living conditions. In reaching this view, I considered what X said about people present on the nearby land. And yet, the Council cannot stop people from walking or standing on their land and the Notice did not claim to do so. Overall, I therefore did not find any significant and direct added injustice to X beyond the understandable frustration and dissatisfaction caused by the Council’s avoidable delay.
27. Having found both fault and resulting injustice, I had to consider how to put matters right. Essentially, the Council needed to decide what it would do in response to the continuing non-compliance with the Notice and then act on that decision without avoidable delay. The Council also, as it had already agreed (see paragraph 20), needed to tell X the outcome of the case. It was not for me to tell the Council what it should do. Indeed, the Council, having considered the specific case, might decide good planning grounds existed for not taking further enforcement action. However, the Council needed to make, and act on, a decision otherwise the case would likely continue to drift, which would benefit no one.

Agreed action

28. To put right the injustice to X arising from the fault I have found, the Council agreed:

• (within 10 working days) to write to X to apologise for its avoidable delay in dealing with the non-compliance with the Notice;
• (within 30 working days) to decide what it would do in response to the non-compliance with the Notice and act on that decision; and
• (within 40 working days) to write to X telling them of its further enforcement decision (to the extent it was lawfully able to share relevant information).

29. The Council also agreed to send the Ombudsman evidence it had complied with the actions at paragraph 28. The Council should send that evidence within 10 working days of fulfilling each action. And, in both this paragraph 29 and paragraph 28, ‘working days’ start from the date of this final decision statement.

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Final decision

30. I completed my investigation, finding fault causing injustice, on the Council agreeing the actions at paragraphs 28 and 29 of this statement.

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Investigator's decision on behalf of the Ombudsman