Summary: Mr X complained the Council failed to carry out enforcement action over an unauthorised forestry business since 2009. Mr X says this caused he and his family physical and mental stress due to noise from machinery and inhalation of smoke from large fires. The Ombudsman does not find fault with the Council’s decision not to take enforcement action. The Ombudsman does find fault with the Council responding to Mr X’s complaint 20 weeks late. The Council agreed to provide Mr X with an apology, a payment of £100 and provide training to its staff on complaint handling.

The complaint

1. Mr X complained the Council failed to carry out enforcement action over an unauthorised forestry business since 2009. Mr X says he raised many complaints with the Council, but the Council did not act.
2. Mr X says this caused he and his family physical and mental stress due to noise from machinery and inhalation of smoke from large fires. Mr X says the neighbouring forestry business also caused damage to his property.

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What I have investigated

3. I have investigated Mr X’s complaints about the Council failing to take enforcement action against the unauthorised forestry business since 2018.
4. I have not investigated Mr X’s complaint about the Council failing to act before 2018. I have explained this within the section of this decision titled “Parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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)
8. 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

9. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. The Council accepted my findings. I have considered Mr X’s comments before making my final decision.

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What I found

Planning Enforcement

11. The planning enforcement process the Ombudsman expects is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
12. Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.

The Council’s Policy

13. The Council’s policy says its planning enforcement team will investigate unauthorised building works or alleged breaches of planning development or conditions.
14. When the Council receives a complaint about a breach of planning permissions the enforcement team should log the complaint and provide the complainant with a case reference. The enforcement team should complete an assessment of the alleged breach, this may include a site visit.
15. When deciding on what, if any, enforcement action to take, the Council will usually try to persuade an owner or occupier to voluntarily correct the harmful effects of breaches. The Council’s enforcement team should take enforcement action when it is suitable to do so. Enforcement action should be proportionate to the breach.

Council Complaints Process

16. If a person makes a formal complaint to the Council, it says it will aim to respond within ten working days.
17. If the person remains dissatisfied with the council’s formal response to their complaint, it will direct a person to the Local Government Ombudsman.

Town and Country Planning Act 1990

18. Land can benefit from lawful use of land under Section 191 of the Town and Country Planning Act 1990 if:
• The land has been used for a specific purpose for more than ten years; and
• The Local Authority did not act to prevent use of the land in such a manner during that time.

Background

19. Mr X’s neighbours, Mr Y, ran a forestry business from a piece of land next to Mr X’s since at least November 2006.
20. In 2009, Mr Y applied for planning permission to build an office, storage facility and a car park on his land. The Council granted planning permission to Mr Y in 2009. The Council supported its decision by saying the proposal was a continuation of forestry work already carried out on the agricultural land.
21. The Council applied conditions to the planning permission. The Council said Mr Y should not run machinery, store any by-products of the forestry operation or burn waste material on any part of the site in which it had granted planning permission.
22. Mr X complained to the Council in November 2013 about Mr Y running chainsaws on site. The Council investigated the breach of the planning permission. The Council decided the conditions applied to the planning permission only applied to the buildings granted under the planning permission and not the site in general. The Council decided no breach had occurred.
23. Mr X complained to the Council again in September 2014 about the noise from Mr Y’s site. The Council again investigated the breach. The Council reached the same conclusion that Mr Y could carry out works on the site outside the areas approved through the planning permission. The Council decided no breach had occurred.

What Happened

24. Mr X complained to the Council in October 2018 that Mr Y’s site was untidy and her was accepting waste from off his site. The Council visiting Mr Y’s site and found a pile of debris. The Council determined this was organic waste, mainly from tree debris, which was consistent with a timber yard.
25. In October 2019, Mr X complained Mr Y was burning waste on his land. The Council attended Mr Y’s site and witnessed piles of debris prepared to be burnt. The Council’s statutory nuisance team served an abatement notice to Mr Y for burning debris at his site.
26. The Council’s planning enforcement team continued to investigate the matter.
27. Mr X made a formal complaint to the Council on 30 October 2019. Mr X said the Council ignored his complaints about smoke pollution, noise nuisance and a breach of planning permissions over the past ten years.
28. The Council accepted Mr X’s complaint on 11 November 2019.
29. Mr X chased the Council for a response on 9 January 2020. The Council promised it would provide a response in the week beginning 13 January 2020. The Council did not provide the promised response.
30. The Council sought legal counsel in February 2020 about its previous planning enforcement decisions. The Council sought clarity on whether the conditions attached to the planning permission only applied to the proposed development under the planning permission or the site in general. The Council also questioned if the site now benefited from lawful use of land having been operating for more than ten years.
31. Mr X chased a response to his complaint again on 18 February 2020. The Council told Mr X it was still investigating his complaint. Mr X sold his property in March 2020.
32. The Council responded to Mr X’s complaint on 2 April 2020. The Council said:
• It investigated each complaint made to Planning Enforcement from 2009 to 2019. And, where necessary, it achieved compliance through direct negotiation with Mr Y.
• It witnessed no actionable nuisance during any of its investigations.
• The planning permissions issued in 2009 did not allow outside storage but the Council did not enforce a breach of planning conditions as this did not show harm to other amenity to justify formal action.
• Its actions have been fair and related to the degree of harm it witnessed or was evidenced.
33. Mr X disputed the Council’s response on 23 June 2020. Mr X said that Mr Y’s recent planning application confirmed he had acted in breach of the previous planning conditions attached to the 2009 planning application. Mr X brought his complaint to the Ombudsman.

Analysis

Enforcement Action

34. Mr X complained the Council has failed to take enforcement action against Mr Y for breaches of planning conditions.
35. Mr Y has been carrying out a forestry business at his site since 2006. The lack of enforcement action from the Council since November 2006 meant Mr Y benefited from the lawful use of land as a forestry business, or timber yard, from November 2016. We are considering Mr Y’s complaints from 2018 onwards. I have made my decision on the appropriateness of the Council’s actions while considering Mr Y’s lawful use of the land.
36. The Council should acknowledge and investigate all complaints about breaches of planning conditions. The planning enforcement team must complete an assessment of the alleged breach, this would usually include a site visit. The Council has discretion about what, if any, enforcement action to take if it finds a breach of planning conditions.
37. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define planning law.
38. Our role is to review the process by which councils make decisions, and, where we find fault, to decide what injustice it caused.
39. The Council has considered Mr X’s allegations over breaches of planning conditions for both of Mr X’s complaints. On both occasions the Council attended the site, considered its planning powers under planning law and made a decision. The Council also sought legal counsel in February 2020 to ensure its decision making was not legally flawed.
40. The Council has followed the process we would expect and has acted in line with its policy. I cannot say there was fault in the enforcement team’s decision not to take enforcement action for a breach of planning conditions.

Complaint Delays

41. The Council should have responded to Mr X’s complaint within ten working days of receipt. While this is not a definitive timescale but an “aim” from the Council, it is good practice to respond to complaints in this time.
42. The Ombudsman would expect the Council to adhere to its complaint timescales or at the least provide updates to a complainant about delays.
43. The Council took 22 weeks to respond to Mr X’s complaint. This is 20 weeks over its complaint response timescales. The Council has failed to meet its complaint procedure timescales, failed to meet promised deadlines, and failed to provide any meaningful updates to Mr X. This is fault.
44. Responding to Mr X’s complaint sooner would not have resulted in a different result. However, the delay caused Mr X avoidable frustration, wasted time and trouble in chasing the Council for a response. The Council could have mitigated Mr X’s frustration by providing suitable timescales for responses and updates to Mr X.

Agreed Action

45. Within one month of the Ombudsman’s final decision the Council should:
• Provide Mr X with an apology and a payment of £100 to reflect the delay in handling his complaint.
46. Within three months of the Ombudsman’s final decision the Council should:
• Provide training to its staff about investigating and responding to complaints within suitable timescales and updating complainants about the progress of the Council’s investigation and response timescales.

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Final decision

47. There was fault by the Council. As the Council has agreed to my recommendations, I have completed my investigation.

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Parts of the complaint that I did not investigate

48. I have not investigated Mr X’s complaint the Council failed to take enforcement action against the forestry business before 2018. This is because Mr X did not complain to the Council from 2015 until 2018 about a breach of planning conditions from his neighbours.
49. The Local Government Act 1974 says the Local Government Ombudsman cannot investigate late complaints unless there is a good reason to do so. A good reason could be a continuation of an ongoing complaint going back more than 12 months without a material break.
50. I exercised my discretion to investigate Mr X’s complaints back to 2018 as these presented as one complaint with no break of over 12 months. The break from 2018 to 2015 is too large to be considered as part of the same complaint.
51. If Mr X had concerns about the lack of enforcement action from the Council prior to 2015 he could have brought it to our attention much sooner.

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Investigator's decision on behalf of the Ombudsman