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Ashfield District Council (20 002 206)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 14 Dec 2021

The Ombudsman's final decision:

Summary: We stopped investigating Mr X’s complaint about how the Council handled a planning enforcement investigation about his neighbour’s farm building. This is because part of the complaint is late and further investigation is unlikely to achieve the outcomes Mr X wants.

The complaint

  1. Mr X complains the Council failed to take enforcement action after his neighbour built a farm building that Mr X says is not in accordance with the planning permission the Council granted in 2014.
  2. He specifically complains the building is bigger than approved and has an open gable that should have been closed off. As a result, Mr X says he is unable to use his garden because of the unpleasant smell and the insects.
  3. Mr X would like the Council to visit the building site to witness the impact it is having on his life.

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The Ombudsman’s role and powers

  1. 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)
  2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • further investigation would not lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

  1. I considered information provided by the Mr X and the Council.
  2. I considered the Ombudsman’s Assessment Code.
  3. Mr X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning enforcement

  1. Planning permission is required to develop land (including material changes of use). Planning permission may be granted subject to conditions about the development and use of land.
  2. Councils can take enforcement action if they find planning rules or conditions have been breached.
  3. We expect councils to carry out a proper investigation into complaints about breaches of planning conditions and consider the range of enforcement options open to them.
  4. Where there is a breach of a planning condition, councils may serve a Breach of Condition Notice. Failure to comply with this notice is an offence that may be tried in the magistrate’s court.
  5. Even if a council decides not to take enforcement action, we would expect it to record its reasons for doing so and explain its decision to any complainants.

What happened

  1. Mr X lives next to a farm that has livestock. In 2014 his neighbour applied for planning permission to renew his existing farm building and build an extension. The Council granted the planning permission in the same year.
  2. In 2018 Mr X complained to the Council and said that his neighbour did not build the extension in accordance with the plan that was part of his planning permission. He said the building was too big and the gable nearest to his property was supposed to be bricked off, but it was not.
  3. In early 2019 the Council visited Mr X’s neighbour and noted:
    • the farm building was not built as per granted planning permission;
    • the building was completed in 2015; and
    • it would let the neighbours know if another planning application was necessary.
  4. Two months later the Council wrote to Mr X’s neighbour and said that it considered the building to be acceptable in terms of scale, design and the use of materials. This meant the building was compliant with the Council’s planning policies and they did not have to take any further action.
  5. On the same day the Council sent a letter to Mr X. In it, the Council said it considered:
    • the building was built in accordance with planning permission, with the exception of few minor alterations;
    • the minor alterations did not warrant a new planning application;
    • taking enforcement action against his neighbour would not be expedient; and
    • Mr X’s concerns about unpleasant smells and referred him to the Council’s environmental health team.
  6. Mr X disagreed and said that he considered the alterations to be significant. He also said that he reported the issue to the environmental team, and somebody visited, but nothing more was done.
  7. In January 2020 Mr X complained to the Council again about the size of the farm building and the open gable near to his home.
  8. In March 2020 the Council provided its final response to Mr X’s complaint and said:
    • the farm building was bigger than the one presented on the plan, and its enforcement investigation considered this;
    • it already explained how it arrived at the decision that enforcement against his neighbour was not expedient; and
    • it already told him how to make a complaint about the unpleasant smells if this was still an issue.
  9. Additionally, the Council explained that the enforcement investigation in 2019 was conducted by the Council’s Senior Compliance and Enforcement Officer. The officer:
    • conducted a site visit and spoke to Mr X’s neighbour;
    • consulted a senior manager about the case; and
    • prepared a report and made a recommendation not to take any enforcement action.
  10. The Council told Mr X to complain to the Local Government and Social Care Ombudsman if he was unhappy with the outcome of his complaint, which he did in June 2021.

My analysis

  1. We expect a complainant to contact the Ombudsman within twelve months of becoming aware of a problem. Only where there are good reasons would we exercise our discretion to investigate outside of this timeframe. 
  2. Mr X was aware of issues since 2015 but he complained to the Council in 2018 and then in January 2020. I consider he understood how to complain to the Council and could have complained to it sooner. If he was unhappy with the outcome, he could have brought his complaint to the Ombudsman sooner. Mr X’s complaint about the Council’s actions between 2018 and 2019 is late and there are no good reasons for us to investigate it now.
  3. Mr X’s complaint about the Council’s actions in 2020 is in time, however the Council’s response to Mr X in 2020 was based on its decision from 2019. We consider there is no good reason to investigate the events from 2020. This is because:
    • the decision about planning enforcment is based on matters that are out of time and that we are not investigating; and
    • we would be unlikely to achieve the outcomes that Mr X desires. This is because it is unlikely we would find fault in how the Council carried out the planning enforcement investigation, and we would not be able to question the merits of its decision not to enforce against Mr X’s neighbour. For this reason we consider a full investigation would not be proportionate.
  4. If Mr X would still like to pursue his complaint about the unpleasant smells, then firstly he should complain to the Council’s environmental health department, and ask them to consider his complaint. Once he has done this, if he remains unhappy he will be able to send us a new complaint.

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Final decision

  1. I discontinued my investigation. Part of Mr X’s complaint is late, and we are unlikely to be able to achieve any meaningful outcomes for Mr X by investigating the other part of the complaint which is in time.

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Investigator's decision on behalf of the Ombudsman

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