Summary: Mr X complained about the Council’s failure to take enforcement action against breaches of a planning condition by a neighbouring business. He also complained about the way the Council has dealt with his requests for enforcement action. We have not found fault in how the Council considered these matters.

The complaint

1. Mr X complains about the Council’s failure to properly consider his request for enforcement action following breaches of planning conditions by a neighbouring business.
2. He says this has affected the operation of his own business and caused significant frustration.

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What I have investigated

3. I have investigated events since June 2019 relating Mr X’s complaint about breaches of a planning condition.
4. I have not reinvestigated matters that were the subject of a previous Ombudsman investigation relating to unauthorised parking in the turning area next to his premises (ref:18 009 980). Mr X has since reported continuing breaches to both the Council and the Ombudsman. The Council started a second investigation into this matter in October 2020 and has now agreed to take enforcement action about this. This an ongoing matter and so there is no role for the Ombudsman.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I spoke with the complainant and reviewed the information provided.
8. I made enquiries of the Council and reviewed the relevant law.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Planning law and guidance

10. Rather than refusing a planning application, a council might grant permission, but with conditions. These conditions might require additional approvals for specific aspects of the development or might restrict the use of the site.
11. If there is a failure to comply with a planning condition, the council may issue a breach of conditions notice. It can be served on any person who is carrying out or has carried out the development; or any person having control of the land. Any recipient of a breach of condition notice will be in breach of the notice and guilty of an offence if, after the compliance period, any condition specified in it has not been complied with, and the steps specified have not been taken or the activities specified have not ceased.
12. A council may decide not to take formal enforcement action, even though there has been a failure to comply with a planning condition. Action should be proportionate to the breach of planning control to which it relates and taken only when it is expedient to do so. In deciding what is the most appropriate way forward, councils should usually avoid taking formal enforcement action where there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area.

The Council’s policy on enforcement

13. The Council’s policy includes the following statements:

• Unauthorised development will be investigated, acting proportionately to the scale of the suspected breach of planning control.
• Resources are limited and it is essential to use them to the maximum effect. Therefore the Council will give priority to those cases where greatest harm is caused.
• The Council aims to tell the person reporting the issue about the decision, or provide an update, within eight weeks of the initial acknowledgement. The Council also aims to keep complainants informed in writing about what action that is being taken.
• Enforcement action is not taken simply because there has been a breach of planning control. It is not intended to be a “punitive” measure.
• Enforcement action will be taken where there is an unacceptable effect on the built or natural environment or public amenity.
• The Council will seek to work with those in breach to voluntarily resolve contraventions and to avoid formal action having to be taken.

Relevant planning condition

14. The planning condition relevant to this complaint is:

“No display or storage of goods or materials or plant and equipment shall take place other than within the buildings hereby permitted or within suitably screened areas to be agreed in writing with the local planning authority – in the interests of the appearance and character of the area” (Condition 5).

Events leading to the complaint

Background information

15. In 2012, the Council granted conditional planning permission to a developer to erect 14 lock-up units. Mr X bought one of the units in 2014. A car repair business (the Garage) operates from the neighbouring unit, owned by Mr D.
16. In 2017, Mr X first complained to the Council about obstructive parking from the Garage having an impact on the operation for his business. He later complained to the Ombudsman.
17. The Council took some action to resolve the problems, including contacting the site owner and Mr D. In response, the site owner erected signage at the turning area.
18. In June 2019, the Council decided it was not expedient to take formal enforcement action in relation to the parking problem. It notified Mr X of this outcome. The Council has since decided formal action is necessary.

Request for enforcement action

19. In June 2019, Mr X reported a breach Condition 5 by Mr D. Mr X told the Council that Mr D was consistently using outside space to store and repair vehicles, including the use of a vehicle ramp/car transporter. Mr X explained this activity was affecting his own business because his entrance was regularly blocked. The Council said it would investigate. In July 2019, the Council wrote to Mr X confirming that a file had been opened and the possible breach would be investigated by an enforcement officer (Officer P).
20. In September 2019, Mr X contacted Officer P to ask if a site inspection had been carried out in respect of the vehicle ramp. He provided photos of the car transporter obstructing the turning area and customers of the Garage blocking access to his premises.
21. In November 2019, Officer P provided Mr X with an update. He said he had carried out site visits to gather as much information as possible and spoken to Mr D to seek a resolution. He told Mr X the next stage was to consider whether it was expedient to take enforcement action. Officer P prepared a report of his findings for consideration by his manager (Manager G).
22. In January 2020, Officer P wrote to Mr X to inform him that enforcement action was not going to be taken. He explained it was not expedient to do so because “the visual appearance of the vehicle lift and associated use is not considered to cause significant detrimental impact to the character and appearance of the area given the surrounding uses and prominence of the site”. In reaching this decision, the Council had regard to the purpose behind Condition 5: “In the interests of appearance and character of the area”.
23. The Council also explained it had actively engaged with Mr D to identify a solution, including finding alternative premises.
24. The Council considered there was “relatively minor visual impact” and formal enforcement action would have a “disproportionately detrimental economic impact in the local area”.

The complaint

25. Mr X complained about this decision and contested much of the factual information provided by the Council. He also raised health and safety and pollution concerns and reported a further breach by Mr D. Mr X told the Council a campervan was onsite and was regularly occupied.
26. In response, the Council accepted that storage of goods outside of buildings was a breach of Condition 5 but reiterated its position that its decision not to take formal action was considered in the context of the reasons for the imposition of the original planning condition.
27. It also said that health and safety concerns raised by Mr X were for the Health and Safety Executive to address. Similarly, pollution concerns should be raised with the Environment Agency.
28. The Council agreed to investigate the campervan being parked on site.
29. In April 2020 Mr X asked for his complaint to be escalated to stage two because he remained dissatisfied with the Council’s response. He said the Council had just ignored much of what he said and had failed to explain what “serious detrimental impact” enforcement action would have on Mr D’s business.
30. The Council provided its final response in July 2020 and apologised for the delay in responding due to Covid-19. The Council said it considered it had provided a proper explanation for its decision and remained of the position that enforcement action could possibly lead to loss of employment and closure of a business.
31. Mr X brought his complaint to the Ombudsman.

Analysis

32. Local planning authorities have no duty to monitor development but, if they receive a complaint about a breach of planning control they have a duty to investigate. Breach of planning control includes failing to comply with conditions attached to a planning permission.
33. The Council has powers to take action but it has no duty to do so. Enforcement action is discretionary.
34. The Ombudsman cannot intervene in discretionary decisions or professional judgments made by officers where there has been no fault in the administrative process, even if we may have made a different decision on the same facts.
35. The Council’s duty when it received a such a complaint was to consider whether further action was appropriate in line with its local enforcement policy and priorities.
36. Mr X reported the breach of Condition 5 in June 2019. The Council carried out its investigation and notified Mr X of its decision not to take enforcement action in January 2020. In this time, the Council’s case records show Officer P visited the site on four occasions. It is clear from the records I have seen that he took the approach of “informal action” in this time to encourage Mr D address to problem. Mr D acknowledged the premises were too small. Officer P was proactive in trying to identify alternative premises, although this was ultimately unsuccessful.
37. I have had sight of the expediency report Officer P prepared for Manager G. This cannot be shared with Mr X because it contains confidential information about a third party. This report set out the action Officer P had so far taken and his rationale for not recommending enforcement action. His case file also includes a number of photographs from the site, taken by Officer P and Mr X. In my view these photographs represent the situation as described by Mr X. I am therefore satisfied Officer P was aware of the problem when making his recommendation to Manager G about expediency.
38. Manager G then conducted his own site inspection before making the final decision on behalf of the Council. Again, this demonstrates the Council made its decision following a thorough investigation.
39. The Council accepted there was a breach of Condition 5, but it was not expedient to enforce. This was a decision the Council was entitled to make. I have found no fault in the way the Council reached this decision. It was for the Council to decide what action it was expedient to take. I have carefully considered Officer P’s report. This provides a detailed rationale for his recommendation.
40. Mr X also was dissatisfied with how the Council responded to his complaint about this matter. He says the Council ignored the points he had raised, particularly about how enforcement action would impact on the local business community and the impact the consistent breaches had on his own business.
41. The Council’s complaint response explained it had taken a fair and balanced view when making its decision. I agree. The Council’s decision in respect of expediency properly considered the factors set out in its own policy.
42. I do not find the Council to be at fault with the way it handled this matter generally. It responded quickly to new issues raised by Mr X and started investigations where appropriate. While it took the Council several months to reach its final decision, I am satisfied work was taking place ‘behind the scenes’ to seek an informal resolution. Again, this was in line with the Council’s policy on enforcement.

Conclusion

43. I appreciate Mr X is unhappy with the Council’s decision, however, for the reasons explained above I am not persuaded there is fault in this case. The Council, after carrying out appropriate investigations, decided it was not expedient to take enforcement action. The fact Mr X disagrees with the Council’s professional judgement is not evidence of fault.

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Final decision

44. I have found no evidence of fault in this case. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman