Summary: There is no fault in the way the Council considered
Miss X’s complaints about the activities of a business operating on land next to her home.

The complaint

1. Miss X complains the Council has failed to take action against a business next to her home. She says the business has been storing rubbish, gas tanks and other unsafe materials in breach of planning permission. She also says the business has stolen some of her land and erected gates which do not have planning permission.
2. Miss X says she and other residents have been caused significant stress as a result of the poor state of the land around the business and also concerns about the safety of the site.

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The Ombudsman’s role and powers

3. 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)
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 have considered the information Miss X has provided to the Ombudsman. I have also considered the Council’s responses to her complaints.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning enforcement

7. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

8. In most cases, development becomes immune from enforcement if no action is taken:
• within 4 years of substantial completion for a breach of planning control consisting of operational development;
• within 4 years for an unauthorised change of use to a single dwellinghouse;
• within 10 years for any other breach of planning control (essentially other changes of use).

(Town an Country Planning Act 1009, section 171B)

Planning law

9. All decisions on planning applications must be made in accordance with a council’s development plan unless material considerations indicate otherwise.
10. When considering planning applications councils can only take account of material considerations. These relate to the use and development of land in the public interest. Material considerations include issues such as overlooking, traffic generation and noise. Councils cannot take account of private considerations such as the applicant’s personal conduct, land rights or reduction in the value of a property.

What happened

11. Miss X lives in a house which backs on to land used by a business. The Council granted planning permission for the business use on the land in 1995. Miss X moved into her property in 2012.
12. Miss X contacted the Council in April 2020. She said she had been “constantly”
    e-mailing the Council about issues relating to a business operating on land next to her home. She said:
• The business is too close to residential premises and the use of a yard connected to the business poses a fire hazard.
• The business has extended the size of the yard onto her land.
• The business has put up large metal gates at the entrance to the yard.
13. The Council replied to Miss X to say it would investigate the matter. There were delays in the Council providing Miss X with updates between April and June 2020. The Council said this was due to it having to prioritise other work.
14. Miss X complained to the Council in August 2020 about the lack of a response to her concerns. She said residents had been complaining about the business for a number of years.
15. The Council wrote to Miss X on 15 September 2020. The Council said it visited the site in April 2020 after Miss X complained and took photographs. However, the Council did not progress this because of the impacts of the COVID-19 pandemic on its services. The Council said it had to prioritise cases “where the harm was increasing daily”.
16. The Council went on to explain that there were also delays in it accessing the planning files for the business as these were stored in its offices rather than online because planning permission had been granted in the 1990s. The Council said it had written to the business owner in May 2020 who had advised that the yard had been in place for a number of years and was part of the original planning permission. The Council said it used aerial images to confirm this. It said the only outstanding issue was the gates and it would be revisiting the site to measure them.
17. Miss X responded to the Council and said residents were concerned about the way gas tanks and refrigeration units were being stored on the site. She also said that flammable materials were being put next to residents’ fences.
18. In a further e-mail Miss X asked the Council to explain why it had granted planning permission for a business close to residential properties. She said a neighbour had told her they had complained to the Council shortly after planning permission had been granted.
19. The Council replied to Miss X by e-mail on 7 October 2020. It said the building had been in place for a number of years and any internal alterations would not require planning permission. The Council acknowledged that the original planning permission had conditions which protected areas around the building including some trees. However the Council found the yard next to Miss X’s property had been used for storage since at least 2005, based on aerial photographs. It said that where a planning condition has not been complied with for in excess of 10 years it is considered the condition not longer bites and the breach becomes lawful for planning purposes”.
20. The Council went on to say it had found the gates to be over 2 metres tall and so they required planning permission. It said it would write to the business owner about this. The Council also said that if Miss X had concerns about fire risks she should contact the local fire service.
21. The Council e-mailed Miss X later in October in response to her queries about her neighbour’s previous complaints. The Council said it investigated a complaint in 1997 about the business premises not being built to plan. It said it found the premises were 0.5 metres closer to nearby residential properties than shown on the plans. However, it decided not to take further action at the time. The Council went on to say that it would not be taking action about the appearance of the site as the it was at the “level of appearance you would reasonably expect to be seen in an area” taking account of the fact it the business premises were on an industrial estate.
22. Miss X asked the Council to consider her complaint at stage 3 of its complaints procedure. The Council responded on 29 October 2020. It said it would not uphold her complaint and went on to explain that it was not going to take enforcement action against the gates as this was not warranted by the level of harm they were causing.
23. The Council sent a further e-mail to Miss X in November 2020 to say the owner of the business had agreed to tidy the yard as a gesture of goodwill and to trim down the gate to the same level as surrounding fencing.

My findings

24. The Council is not responsible for the safety of operations on land used by the business. That is a matter for the Health and Safety executive to enforce under safe working practices legislation.
25. The Council is also not responsible for resolving land ownership disputes. If
    Miss X believes the owner of the business has encroached onto land she owns she may wish to seek advice about this.
26. The Council has investigated and considered Miss X’s complaints about enforcement issues. The Council has considered evidence that shows the use of the yard has continued for over 10 years and so is immune from enforcement action. The Council has also properly considered whether the gates are causing harm to the local area. This is an industrial estate and the gates are largely hidden from view of local residents so the decision not to take enforcement action as the gates are not causing harm is one the Council is entitled to take.
27. I understand that the Council was limited in what action and investigations it was able to take due to the impact of the COVID-19 pandemic on its services. There is no fault in the delays in investigating the matter or accessing historic records. There is also no fault in the Council deciding to prioritise other more serious cases.
28. I can understand that Miss X would feel frustrated by a lack of updates from the Council. However, the Council’s enforcement plan says it will not provide routine updates but will respond to specific enquiries regarding enforcement cases. The Council has responded to Miss X when she has asked for an update. Therefore there is no fault in how it has corresponded with her.

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Final decision

29. I have completed my investigation as I have found no fault.

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Investigator's decision on behalf of the Ombudsman