Summary: Mrs X complains about the way the Council decided not to take enforcement action about her neighbours’ business. She complains that the Council gave incorrect information to her MP. She also complains about the way the Council dealt with her complaint. Mrs X says this caused stress and unacceptable living conditions. The Ombudsman does not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Mrs X, complains about the way the Council decided not to take enforcement action about her neighbours’ business operation. She complains that the Council gave incorrect and misleading information to her MP’s office. She also complains about the way the Council dealt with her complaint.
2. Mrs X says this has caused stress and unacceptable living conditions for 18 months.

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What I have investigated

3. I have investigated the parts of Mrs X’s complaint about the way the Council decided not to take enforcement action, about the information it gave Mrs X’s MP, and about the way it handled her complaint.
4. The final section of this statement gives my reasons for not investigating the part of Mrs X’s complaint about an alleged breach of data protection regulations.

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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. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
8. I considered the relevant legislation and policies, set out below.

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What I found

What should have happened

Planning enforcement: the law

9. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
10. Government guidance explains how councils should use their powers. Enforcement action should only be taken if it would be a proportionate response. In reaching a decision, councils should consider what harm is caused to the public.
11. The law sets out time limits for enforcement action. The law says a council cannot take enforcement action about a breach of planning control after ten years.

Planning enforcement: the Council’s policy

12. The Council’s policy on planning enforcement says it will not take formal action against a minor breach of control that causes no real planning harm. It says the Council will only take enforcement action when it is considered expedient to do so in the public interest.
13. The policy sets out the way the Council will investigate allegations of breaches of planning control.

The Council’s complaints procedure

14. The Council’s complaints procedure says that sometimes, instead of responding to a complaint at stage two, it may advise the complainant to go straight to the Ombudsman.
15. The procedure says this sometimes happens in long-running cases where the Council has considered the complaint in detail, and it feels it has nothing more to add.

What happened

16. Mrs X’s neighbours run a business from their home.
17. In August 2018, Mrs X reported to the Council that the neighbours were in breach of planning control. Between December 2018 and May 2019, the Council visited the site seven times to monitor and assess the situation.
18. In May 2019, Mrs X met with her MP to discuss the alleged breaches. The MP’s office spoke to the Council about it. In June, Mrs X spoke to a member of staff at the MP’s office about it. Mrs X says the staff member told her that the Council’s Case Officer (in charge of the enforcement investigation) said the Council received letters in support of the business.
19. In June, the Council met with the neighbours and issued a planning contravention notice (PCN) to establish the extent of the business’s activities.
20. In July, the Council visited the site four times to monitor the situation. At this time, Mrs X gave the Council more evidence of the alleged breaches, including photos.
21. Between August and November, the Council visited the site nine more times to monitor and assess the situation.
22. In November, the Council issued the neighbours another PCN to gather more information.
23. In February 2020, the Council wrote to Mrs X with the outcome of its investigation. The Council said it did not consider the business activities at the neighbours’ property had intensified to such a degree as to materially change the established mixed use of the site (in that it was a home as well as the premises for the mobile business).
24. The Council explained to Mrs X that the neighbours did not need planning permission for the business because the mixed use had occurred for more than ten years, and so was immune from planning enforcement action. It said it had not identified a breach of planning control, so it closed the enforcement investigation.
25. Throughout this time, Mrs X had an ongoing complaint with the Ombudsman about Council delays with its enforcement investigation. The Council responded to Mrs X’s complaint, about the previous complaint and the subject of this complaint, at stage two in October 2020.
26. The Council said the only part of Mrs X’s complaint that had not been addressed in the Ombudsman’s investigation was about the correspondence with Mrs X’s MP. The Council said Mrs X’s emails did not prove that the Case Officer, nor the staff member at the MP’s office, said the planning department had letters in support of the business.
27. The Council said Mrs X could bring her latest complaint to the Ombudsman, which she did.

Analysis

Enforcement action

28. Mrs X complains about the way the Council decided not to take enforcement action about the neighbours’ business operation. She says the Council ignored her photo evidence. She wanted the Council to take action because she believed the business’s workload had increased and she did not like it.
29. The Council says the business is immune from planning enforcement because it has been operational for more than ten years. I find that this is in line with the law. The Council says its enforcement investigation was because Mrs X alleged that the business activities had intensified to a level that materially altered the established lawful use of the property.
30. I have considered how the Council investigated Mrs X’s allegation, and what information it used in its investigation. I note that the Council did consider the photos Mrs X provided, as well as its own photos.
31. I am satisfied that the Council investigated in line with the law and its own policy. It found no evidence of a breach of planning control. This is a decision it is entitled to make. I therefore find no fault in how the Council decided not to take enforcement action.
32. Mrs X complains that the Council did not explain why it cannot or will not do anything about the breach she alleged. I do not agree. I have seen the Council’s communication with Mrs X, and I find that the Council has been explicitly clear with Mrs X throughout the process. Further, I find that the Council has clearly explained the reasons for its decision to Mrs X.
33. Mrs X complains that the Council will not give her certain information because of data protection laws. I find the Council is entirely right not to disclose certain information to Mrs X. If the Council had disclosed certain information, it would have broken the law.
34. Mrs X says she complained to the Council, to health and safety, and to the police about the neighbours’ activities. She says she told the Council this, and says the Council should have liaised with those agencies when making its enforcement decision.
35. There is no obligation or requirement for a council to liaise with other agencies when investigating an alleged breach of planning control. I find that the Council investigated the alleged breach as it should have. The fact that Mrs X does not agree with the outcome is not evidence of fault.

Incorrect and misleading information

36. Mrs X complains that the Case Officer told the MP’s staff member that the Council had letters in support of the business from other neighbours. She disputes this because she says she knows there are other neighbours that are unhappy. Mrs X says the information from the Council changed the MP’s office’s mind, because the office had been in support of Mrs X before this. She says the information the Council gave the MP’s office made her look insignificant.
37. There is no evidence to show the Council told the MP’s office it had letters in support of the business.
38. I do not find the Council at fault. I find that the Council told the MP’s office all it could about its ongoing investigation, bearing in mind data protection laws. I find the Council’s responses to the MP’s office were entirely appropriate. I do not find the Council gave the MP’s office incorrect or misleading information.

Complaint handling

39. Mrs X complains that the Council refused to deal with her complaint at stage two of its complaints procedure. She says the stage two response did not answer her points and instead signposted her to the Ombudsman. She says the Council wrongly said it had already addressed her complaint.
40. The Council’s complaints procedure says instead of responding to a complaint at stage two, it may advise a complainant to go straight to the Ombudsman. It says this sometimes happens in long-running cases where the Council has considered the complaint in detail, and it feels it has nothing more to add.
41. In this case, Mrs X had an ongoing and long-running complaint with the Council. I find that the Council’s stage two response addressed the part of her complaint it had not previously addressed. The Council believed it considered Mrs X’s complaint fully. This is a decision the Council is entitled to make.
42. I find that the Council’s stage two response is in line with its complaints procedure. For this reason, I do not find the Council at fault.
43. Mrs X complains that she wanted her complaint dealt with by a department that was not the planning department. She wanted it considered by a neutral third party because of all the issues with her previous complaints.
44. The Council’s complaints procedure does not say complaints can or will be considered by neutral third parties within the Council. I find that the Council dealt with Mrs X’s complaint in line with its procedure. I therefore do not find the Council at fault.

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Final decision

45. I have completed my investigation and I do not uphold Mrs X’s complaint. This is because there is no fault.

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Parts of the complaint that I did not investigate

46. Mrs X complains that the Council breached data protection regulations because it shared information with her MP’s office.
47. As I have said above, we normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. We may decide to investigate if we think there are good reasons to do so.
48. In this case, I do not find any good reasons for the Ombudsman to investigate this part of Mrs X’s complaint. I find that the ICO is better placed to deal with this part of Mrs X’s complaint. I have explained this to Mrs X.

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Investigator's decision on behalf of the Ombudsman