Summary: Mr D complains that there was fault and delay by the Council in investigating his complaint about the siting of a shipping container next to his back garden. He says the Council wrongly allowed it to remain in place for 23 months and that this affected his amenity and caused him considerable frustration and annoyance. The Ombudsman has found no fault in the way the Council responded to Mr D’s concerns.

The complaint

1. Mr D complains that the Council took 23 months to take enforcement action to secure the removal of a large shipping container in the car park of the hotel which borders his land. He says the container was unsightly and adversely affected his amenity and he was put to time and trouble pursuing his request to have the container removed and his related complaint.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by “maladministration” and “service failure”. 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 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. If we are satisfied with a body’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

5. I have considered Mr D’s written complaint and supporting correspondence and discussed his complaint with him. I have made enquiries of the Council and considered its response and supporting papers. I have had regard to relevant legislation and guidance. I have also sent Mr D and the Council a draft decision and considered their comments.

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What I found

Legal and administrative background

Planning permission

6. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land. All decisions on planning applications must be made in accordance with the development plan unless material considerations indicate otherwise.

Permitted development

7. Parliament has given a blanket planning permission (permitted development) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.

Planning enforcement

8. Planning authorities may take enforcement action if they find planning rules have been breached. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 (the Act) 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.
9. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, “Ensuring effective enforcement”.

‘’Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control…’’

10. As stated in the guidance, enforcement action is discretionary. Councils should not take enforcement action just because there has been a breach of planning control. In considering whether to take action and what action to take, they will have regard to the seriousness of the breach. The seriousness of the breach, or otherwise, may affect the priority given to a specific case.
11. Where a Council is investigating a potential breach of planning control, it may issue a Planning Contravention Notice (PCN). A PCN is used to get more information to decide whether there has been a breach of planning control and whether it is expedient to take formal enforcement action.
12. Councils have a choice of different enforcement options to secure a satisfactory remedy for a breach of planning control. The options include:
• No formal action - Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost-effective way of achieving a satisfactory outcome.
• Retrospective planning application - The planning authority may invite a retrospective application to regularise development which has already been undertaken.
• Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.

Planning appeals

13. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about delay, the refusal of planning permission for a CLEUD, planning conditions and enforcement notices.

What happened

14. Mr D owns a detached house with a back garden on which he has spent considerable time and money landscaping. To the rear of Mr D’s house is a local hotel whose car park borders his back garden. There was previously a wooden shed in the corner of the car park protruding above the 6’3” boundary fence. However, after the hotel ownership changed, the new owner installed a 20’ by 8’ yellow, metal shipping container in place of the previous shed; this protruded above the fence by around 2’6”.
15. In August 2017, Mr D complained to the Council. The same day, a Council officer noted that Mr D had called to say he had reached agreement for the container to be moved elsewhere in the car park and he did not want the Council to pursue the complaint. Mr D disagrees and says the owner had agreed to discuss this.
16. At the end of the month, Mr D emailed to say that the hotel owner had decided not to move the container. The enforcement officer emailed and said he planned to visit the site. He also explained that some of Mr D’s concerns were private matters and were not within the remit of the local planning authority.
17. At the start of September, the officer visited the hotel and Mr D. He then wrote to the owner saying that the container was having an unacceptable impact on residential amenity and asking for him to remove or reposition it. He asked for a response within 14 days or he would consider enforcement action.
18. On 11 and 12 September, the officer had email exchanges with the owner who said the container was a temporary structure that would be used to help with refurbishing the hotel. He did not expect this to take longer than six months, but this might vary as works would be carried out when occupancy was lower.
19. The officer called Mr D at the end of September and explained the situation. It seems clear that he explained to Mr D that the owner had said the structure was for temporary use during refurbishment because Mr D emailed him the same day with questions about temporary use.
20. In early October, the officer updated Mr D on the investigation and responded to his questions. There was also further correspondence between the officer and the owner as to whether the container was a temporary or permanent structure. The owner insisted it was a temporary storage unit being used during refurbishment. The officer asked for a site meeting to check the container and its use. He then chased the owner for a response and a meeting was arranged in early November; the officer said he would need access to the hotel to view the renovation works.
21. After the meeting, the officer emailed Mr D. He confirmed that additional refurbishment works were planned and that the temporary use of container for that purpose would constitute permitted development. The owner had agreed to remove the container at the end of the summer 2018. He had also agreed to screen the container, which would address the impact on amenity. Mr D asked what action would be taken to monitor the use for refurbishment.
22. In December, there was an email exchange between Mr D and the owner about cladding. Mr D decided he did not want cladding because it would increase the height of the structure. Instead, the owner agreed to paint the container green. Mr D bought paint but, in the event, painting could not be undertaken until May 2018 due to the low temperature. By that time, it was not felt to be worthwhile to paint the container with only three months until the proposed removal.
23. Meanwhile, the enforcement officer asked the owner if the cost of cladding might suggest a permanent rather than temporary use. The owner confirmed the temporary use in writing.
24. In February 2018, Mr D emailed the enforcement officer. He said there was no sign of refurbishment works, despite these being planned for January 2018. He was concerned that the structure might become permanent. The officer explained that the hotel owner had given a written undertaking that this was not the case and, as an intermediate step, had agreed to paint the container. Given the limited visual harm and the relative priority of the case, the Council would not take further action at present, but the case would be reviewed as appropriate.
25. In June, the officer informed Mr D that he was leaving the Council. He explained that the enforcement case had been closed as the owner had agreed to move the container by the end of summer. Mr D expressed concerns that the container was being used as permanent storage and frustration that the Council had not taken action because of the limited harm. The officer replied that the case was closed but would be reopened if the owner did not keep to the agreement.
26. In September 2018, Mr D contacted the enforcement team to complain that the container was still in place. The Council opened a new enforcement file. A second enforcement officer then met the owner on site. At this point, the owner explained that the hotel now planned a permanent use for the container. The officer wrote and told the owner that planning permission would be needed.
27. At the end of the month, Mr D emailed the enforcement officer setting out the case history and previous correspondence on the matter. The officer advised him that she had opened a new enforcement case and would update him due course.
28. As no application was received, the officer followed up with the owner who then submitted a retrospective application in October 2018. The Council refused planning permission in December 2018. Mr D then emailed the Council with some comments about the site description on the decision notice and asked how long the owner had to appeal – the Council explained that the owner had six months to appeal.
29. In late January 2019, the enforcement officer contacted the hotel owner who advised that an appeal had been submitted to the Planning Inspector.
30. At the start of April, Mr D complained to the enforcement officer. He said he was concerned that the Council had missed opportunities to deal with matters earlier and that there would be further delays in removing the container.
31. The officer contacted the owner the next day. She advised that the Council had not received notification from the Planning Inspectorate and asked for a copy of the receipt. She said, if there was no intention to appeal, the container would need to be removed immediately. She then served a PCN, with a 21-day deadline, on the owner to gather information, as a pre-cursor to more formal enforcement action. Mr D emailed expressing concern about the lack of action.
32. Shortly after, the Council received the completed PCN. This stated that the hotel was using the container for temporary storage of materials and goods for hotel improvements. It said works were continuing and the container would be removed on completion. The owner confirmed that they were not going to appeal.
33. The enforcement officer checked progress and, in early May, the owner advised that the container had been sold and he was awaiting collection the following week. The officer said she would visit in couple of weeks and would expect to see container removed. She informed Mr D.
34. She contacted the owner two weeks later and was told that the container was still awaiting collection. At the end of the month, she contacted the owner again and said she would follow up in mid-June, after the appeal deadline had passed. She contacted the owner on 11 June and was again advised that the container was being collected.
35. Mr D also contacted the Planning Service Manager who explained on 14 June that the Council was awaiting removal of the container, that the enforcement officer was on leave until 25 June. If no progress was made, the Council would then serve an enforcement notice.
36. There was further correspondence between the Council, the owner, and Mr D before Mr D confirmed by telephone on 26 June that the hotel had removed the container. He thanked the Planning Department for its efforts. Mr D then complained about the way the Council had dealt with matters.

My assessment

37. Clearly, it has been very frustrating for Mr D to have the shipping container next to his garden for such a prolonged period. However, the Ombudsman’s task is to consider whether there was fault in the way the Council dealt with this matter.

Initial contact

38. Mr D has questioned the Council’s suggestion that he said the owner had agreed to move the container at the start of August 2017. However, that is what was recorded in the officer’s email and I cannot determine exactly what was said at the time. In any event, the Council resumed its investigation when Mr D raised further concerns, so this has caused no injustice.

The first enforcement investigation - August 2017 to July 2018

39. Mr D says the owner was initially told to remove the container within 14 days but was then not made to do so despite not suggesting until November that it would be used for temporary storage. In fact, the officer asked the owner for a response to his request to remove or reposition the container within 14 days. In the event, the owner responded on 11 September and explained that the container was to be used temporarily during refurbishment.
40. Mr D feels that the officer should have served a PCN, as he said he planned to in early October. The purpose of serving a PCN is to obtain information to assist an enforcement investigation and its use is discretionary. In the event, the officer was in discussions with the owner, who explained that the container had a lawful temporary use, and so he did not consider it necessary to serve a notice. Instead, he decided to clarify the use by undertaking a site visit. That was not fault.
41. Mr D feels that it then took far too long to arrange a site meeting. I appreciate that this took some time, but officers have to prioritise enforcement cases. In this case, the claimed use of the container was lawful, the officer was in contact with the owner in the interim to discuss the use and the visual harm was considered limited. I see no fault here.
42. Mr D says the officer did not respond to the request in his November email to monitor usage. Had the officer done so, he feels that it would have been clear that the container was not being used as stated. The officer did not respond to that email. But he had already clearly explained that the temporary use was lawful and the owner had agreed to remove the container by the end of summer.
43. Moreover, as the officer explained in February 2018, the owner had given a written undertaking that the use would be temporary, so no further action would be taken given the limited visual harm and the relative priority of the case. The Council would then review matters if the container was not removed. I see no fault here. It was for the Council to decide what steps what action to take.

The second enforcement investigation – September 2018 to June 2019

44. Mr D has complained that the Council chose to invite a planning application rather than take enforcement action. The Council says that inviting a planning application allowed it to test the planning merits. This is a common approach, and for the Council to decide if this was appropriate in this case. That was not fault.
45. Mr D has asked why officers allowed the owner to submit the application late. That does not appear to be correct. The Council’s website shows that the application was submitted on the deadline the Council set.
46. Mr D considers that the Council should have served an enforcement notice sooner after it had refused planning permission. The Council says that serving an enforcement notice might have prolonged the enforcement investigation. It says that most enforcement notices are appealed and, at the time, there were extensive delays at the Planning Inspectorate in dealing with enforcement appeals. It therefore did not consider it expedient to take enforcement action until the six-month appeal period had expired. That was for the Council to decide. In any event, I note that once it became apparent that the owner did not plan to appeal the refusal of planning permission, contrary to his earlier assertion, the Council then proactively sought the removal of the container.
47. Mr D considers that the fact that the Council subsequently got the owner to remove the container as a result of the second enforcement investigation indicates that it should have done so during the first investigation. I do not consider that to be the case. In the first investigation, the temporary use was determined to be lawful and a course of action agreed; the removal of the container by the end of the summer. In the second investigation, it was confirmed that the use was no longer temporary so there was a breach of planning control.

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Final decision

48. I have closed my investigation into Mr D his complaint because I have found no fault in the way the Council has handled the enforcement investigation.

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Investigator's decision on behalf of the Ombudsman