Summary: Mr X complains about the Council’s refusal to take planning enforcement action and its handling of his complaint. The Ombudsman finds the Council at fault in its decision making process and in its handling of Mr X’s complaint. The Ombudsman recommends the Council provides an apology, makes a payment for time and trouble, reinvestigates Mr X’s allegations and acts to prevent recurrence.

The complaint

1. Mr X complains about the Council’s refusal to take action against the unauthorised use of sites as caravan sites and he is unhappy with the Council’s handling of his complaint. Mr X says the Council’s lack of action causes his own camping business and others ongoing financial loss.

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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. 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

5. I spoke to Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decsion and I considered the comments provided.

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What I found

The Scheme

6. A third party business scheme, referred to only as “the Scheme” for confidentiality, is a private enterprise whereby motorhome tourists can stay overnight in the car park of certain pubs, hotels or restaurants. The website for the Scheme says the stay is free of charge and no facilities are provided by the site owner other than the parking space. The Scheme allows for a stay of 24 hours.

Caravan Sites and Control of Development Act 1960 (“1960 Act”)

7. No occupier of land shall allow any part of their land to be used as a caravan site unless he is the holder of a site licence.
8. “Caravan site” means land on which a caravan is stationed for the purposes of human habitation and land which is used in conjunction with land on which a caravan is so stationed.
9. However, of relevance to this case, a site licence shall not be required if;
• the caravan is on the land for no more than two nights and;
• during that time no other caravan is stationed and;
• the number of days on which any caravan was stationed on that land did not exceed twenty-eight days within a twelve month period.
10. There are other exceptions, such as exempted organisations and travelling showmen however these are not relevant in this case.

The Town and Country Planning (General Permitted Development) (England) Order 2015 (“GPDO 2015”)

11. Land can be used as a caravan site provided it does not need a site license as required under the 1960 Act.

Planning enforcement

12. Planning enforcement action is discretionary. It is for the planning authority to decide whether it is expedient to take action: a council does not have to carry out enforcement action simply because the public wants or expects it to.

Council’s planning enforcement policy

13. The Council has provided a copy of its planning enforcement service aims, as applicable at the time. This says it will acknowledge an enforcement enquiry within three working days. It will carry out an initial site inspection within 18 working days. It will then assess the case against the appropriate legislation, policy and regulations to determine if there is a breach of planning control.
14. It will inform the complainant of its decision and any action within 25 working days.
15. It will update the complainant on progress at six weekly intervals or, specify another interval in writing.

Council’s complaint handling process

16. The Council publishes its corporate complaints policy on its website. This says it will investigate a complaint and provide a Stage 1 response within 15 working days. If you remain unhappy, at stage 2 it will conduct a thorough review of the stage 1 investigation and response. It will provide a Stage 2 response within 20 working days. If you remain unhappy you can then contact the Ombudsman.

What happened

17. On 25 February 2019 Mr X wrote to the Council about sites operating under the Scheme unlawfully in breach of planning and licensing laws. He sent this correspondence to the Council again on 4 March and 4 April.
18. On 30 April Mr X again chased the Council for a response and provided further evidence of a site accepting up to five caravans at once, all year round.
19. Internal Council emails show it initially overlooked Mr X’s complaints. It was then unsure whether to address them as a service complaint or as a planning enforcement complaint.
20. The Council’s case notes suggest Mr X’s complaints were passed to the planning enforcement team on 14 May.
21. On 14 May the Council told Mr X it would investigate those sites within its district and update him in due course.
22. On 15 May the Council told Mr X it had looked into the Scheme. It said the level of activity outlined in the Scheme is not a caravan site, it would not need a license and it was not a material change of use that would need planning permission. However, it would send a letter to site owners advising them they cannot use their land to such a degree that their car parks are permanently being used for caravans otherwise they may be in breach of planning control. It would not take enforcement action as there is no breach at this stage.
23. On 15 May Mr X wrote to the Council referring to the 1960 Act and GPDO 2015. He said the sites were operating beyond the limits set out in these, therefore requiring a license and planning permission.
24. The Council maintained it would send an advisory letter. It noted he had provided evidence of a few caravans at one site which it would look into as part of its investigation. It said the GPDO was only relevant if there had been a change of use. It did not consider there was any breach at this stage, but it would investigate.
25. On 19 May Mr X sent the Council a photo of three caravans parked in a pub car park. He said these required planning permission or a license. On 28 May Mr X sent the Council a photo showing four caravans parked in another pub car park.
26. On 4 October Mr X asked the Council for an update.
27. The Council told Mr X it had not sent the advisory letters yet as it was prioritising other cases where enforcement action was necessary.
28. Mr X told the Council he was disappointed no action had been taken despite his providing evidence of breaches. He asked the Council to send letters as soon as possible.
29. The Council’s case note of 10 November reports that a Council officer had monitored one site informally over the past few months and not witnessed any caravans on the site. The officer concluded any unauthorised use at that site appeared to have stopped.
30. Mr X complained to the Council on 11 November. In summary he said:
• It delayed addressing his report of a breach;
• The Council’s response suggested it misunderstood the law however, he was pleased it agreed to send an advisory letter;
• No advisory letter had been sent to date;
• The Council had not investigated the reported breaches;
• The Council had taken no action despite his providing evidence of breaches.
31. On the same date the Council sent a letter to ten sites noting they were signed up to the Scheme, under which caravans would use their sites infrequently and only stay 24 hours. It advised if they used their car park as a caravan site, whereby caravans are back to back for more than 24 hours, they may require planning permission and a licence.
32. The Council provided its stage 1 complaint response on 12 November. It said it had to consider if the use of a car park for one night by a caravan amounted to a change of use requiring planning permission. It did not agree there was a material change of use. No development had taken place; the car parks remained as they were and are still in use as car parks. The duration of the stay was no more than one night. The sites did not need planning permission and therefore did not need a licence. There is no breach of planning control and his case was handled with due care. It also enclosed a copy of the letter it sent to site owners.
33. Mr X complained further. In summary he said:
• The Council had not investigated to assess whether the level of activity amounted to a material change of use.
• The draft letter to site owners is contrary to the legislation.
• The use of the sites exceeds that allowed under the GPDO and the exceptions for needing a license.
• The Council has not taken enforcement action in line with its policy.
• It has not acted efficiently.
• It did not carry out a site visit.
• He wants the Council to take action.
34. The Council provided its stage 2 response on 16 January. It accepted the stage 1 response was flawed however maintained it was entitled to decide there was no breach of planning control. It would revise and reissue the advice for site owners and its enforcement team would continue to investigate any further complaints.
35. In response to my draft decision the Council explained it did not consider it necessary to visit each site as Mr X had only evidenced two sites with caravans on them; Mr X mentioned the remainder only because they used the Scheme. Further, that it did visit all sites where Mr X had provided photo evidence, by drive bys.
36. The Council confirmed it had provided training on relevant law and complaints handling to staff since Mr X’s complaint and prior to my recommending such training in my draft decision.

Findings

37. The Council delayed responding to Mr X’s complaint for more than two months. This is fault.
38. The Council did not carry out site visits at every site or otherwise gather the information necessary to establish whether there were any breaches of planning control as Mr X alleged. I find the Council at fault for not investigating in line with its planning enforcement policy. Although the Council says it was not necessary to visit all sites, this is not in line with its policy. And the Council did not otherwise have the relevant information to assess whether or not there was a breach of planning control. That Mr X did not provide photos to the Council did not mean there was no breach.
39. The Council decided there was no breach of planning control in May. However, it does not appear to have taken account of relevant law in reaching that decision. There is nothing to suggest the Council took account of whether more than one caravan was on any site at any one time as alleged or, whether a site was in use for more than 28 days of the year. This information is necessary to establish whether a site requires a license and planning permission. The Council is at fault because it did not follow a proper decision making process.
40. The Council told Mr X it did not consider there was a breach but that it would investigate further. However, it did not then provide Mr X with six weekly updates in line with its planning enforcement policy. This is fault.
41. The Council took six months to send an advisory letter as agreed. Although I note the Council prioritised other work I consider six months amounts to undue delay. This is fault.
42. The Council’s advisory letter did not accurately reflect the law. This is fault. I note the Council agreed to revise and reissue letters, but I have not seen any evidence it did so.
43. The Council’s stage 1 response does not adequately address Mr X’s complaint and it demonstrates the Council did not consider or apply planning law correctly. The Council’s stage 2 response does not provide a thorough review of the stage 1 response in line with the Council’s complaints policy. The Council accepts the stage 1 response was flawed but does not offer an improved response. And the Council concludes it was entitled to decide there was no breach, without explaining how it reached this conclusion taking account of relevant law and facts. I consider the Council is at fault as it did not address Mr X’s complaints properly or in line with its complaints policy.
44. I cannot say what the outcome would have been, had the Council properly investigated the alleged breaches and followed a proper decision making process. However, Mr X has been put to significant time and trouble in pursuing his complaints with the Council. And the Council has still not properly investigated his allegations.
45. I have considered the Council’s comments on my draft decision. These do not affect my findings of fault. However, I have removed my recommendation for the Council to provide training as I am satisfied the Council has already actioned this.

Agreed action

46. To remedy the injustice set out above I recommend the Council carry out the following actions:
47. Within one month:
• Provide Mr X with a written apology for the failings identified above;
• Pay Mr X £300 for time and trouble;
48. Within three months:
• Carry out site visits and investigate Mr X’s allegations; inform Mr X of the outcome of its investigation and reasons for its decision, with reference to relevant law and policy;
• Write to the relevant sites in its area, providing accurate advice with reference to the relevant law.
49. The Council has accepted my recommendations.

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Final decision

50. I find the Council at fault in its decision making on planning enforcement complaints and in how it dealt with Mr X’s complaints. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman