Summary: Mr X complained the Council failed to take appropriate action to secure compliance with an enforcement notice and misled him about the degree to which action had been taken. There was some delay in the Council’s actions, but we found this did not lead to significant injustice.

The complaint

1. Mr X complains the Council failed to take appropriate action to secure compliance with an enforcement notice and a council officer misled him about the degree to which action had been taken. Mr X complained that because the Council did not act quickly enough, the developer submitted an appeal to the planning inspectorate which may have been avoided had the Council acted sooner.

Back to top

What I have investigated

2. Mr X first made a complaint about the site in question in May 2017. We have only investigated the events from 2018. The reasons for this are set out in the last section of this statement.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

Back to top

How I considered this complaint

6. I spoke to Mr X, considered the complaint he made and the information he provided. I asked the Council for information and considered its response to Mr X’s reports and his complaint.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

National Planning Policy Framework (NPPF)

8. Paragraph 58 of the NPPF states that effective enforcement is important to maintain public confidence in the planning system. However, enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

South Hams District Council – Local Enforcement Plan

9. The Council’s plan sets out the background to planning enforcement issues and sets out the way it will approach enforcement reports. Paragraph 4.6 of the plan explains how the Council will prioritise the use of its resources. It refers to emergency cases where irrevocable harm will be caused if action is not taken immediately and high priority cases where there is significant public concern or the potential for significant harm to public amenity. Lower priority is where planning infringements do not result in significant, immediate or irreversible harm.
10. The plan sets out anticipated timescales for taking initial action and formal measures in each case.
11. Paragraph 5.23 of the plan states the Council will stick to procedural time limits relating to Enforcement Notices unless there are justifiable reasons for extensions. It states in certain circumstances additional time may be provided to comply with the Council’s requirements. The Council will consider these requests provided the apparent harm to third parties can be minimised.

Background

12. Mr X complains about the use and development of an agricultural property in a village he lives in. In 2017 the property was being occupied as a residence by a tenant without planning permission.
13. In late 2017 the owner of the property submitted a Certificate of Lawfulness application to use the property as a residence. The Council refused the application on 17 May 2018.

Mr X’s first complaint – delay issuing the enforcement notice

14. On 29 August 2018 Mr X complained about the time the Council took to decide the Certificate of Lawful Use/Development Application (CLUD) from 2017. He also complained that the Council should have issued an enforcement notice soon after it refused the CLUD application. He stated it took three months to do so, until 16 August 2018.
15. In response the Council acknowledged there was initial delay in deciding the CLUD. This was caused by workload pressures and staff shortages. It noted an officer who took on the case had been in regular communication with Mr X thereafter. In terms of further enforcement action on refusal of the CLUD, the Council stated it had to decide if action was expedient. It noted that it was a discretionary decision. The Council stated it had to consider the impact on the individuals concerned, including their Human Rights and it had to show it had robustly considered the facts in the case, which took time. The Council stated the time taken to issue the enforcement notice was, in part, a resourcing issue and, in part, due to the need to properly consider the case. The Council noted Mr X’s concerns but also that the use of the property had not caused any immediate harm to residents’ amenity. It noted that it had to prioritise action where harm was being caused.
16. Mr X acknowledged the response and stated he did not wish to take the complaint further.

Mr X’s second complaint – failure to take appropriate enforcement action

17. The enforcement notice issued by the Council in August 2018 stated the owner must stop using the property as a dwelling house. They must also remove all domestic fixtures and fittings (except a WC and sink). The notice required that all glazed windows and doors were removed reverting to shuttered openings only. It required the removal of all associated domestic paraphernalia such as TV/Satellite equipment, flues and washing lines. The notice was effective from 17 September and the actions had to be taken within six months.
18. On 14 September the property owner lodged an appeal against the enforcement notice with the Planning Inspectorate (PI). During the appeal the site owner changed. The PI decided the appeal on 19 December 2019. The PI decision upheld the Council’s Enforcement Notice and agreed its requirements were appropriate. The time for compliance was six months from the appeal, by 19 June 2020.
19. On 3 April 2020 the new site owner asked for an extension of three months to comply because the COVID-19 pandemic had limited the tenant’s availability to view and move into rental properties. The Council agreed an extension until 19 September 2020 after consulting legal officers.
20. In June 2020 the site owner submitted a planning application to change the use of the property to holiday accommodation. This was refused by the Council on 21 August 2020.
21. Officers followed up the enforcement notice on 23 September and arranged an inspection visit for 9 October 2020. At the visit they found the property unoccupied, but other elements of the enforcement notice had not been complied with.
22. On 29 September the site owner submitted an appeal against the refusal of permission to use the property as a holiday let.
23. Mr X contacted the Council in September 2020 and November 2020 chasing for an update. In November he complained that the Council failed to respond.
24. On 10 November, an officer emailed and apologised for not providing an update sooner. He stated:
25. “I can advise that a compliance check site visit has been undertaken and … the building is not now in residential occupation as required by the Notice. Similarly the window and door frames had been removed, the external rotary drier removed. The internal kitchen area was being worked on at the time of our visit with cooking facilities removed and rooms had been largely cleared of domestic items. Whilst some works were outstanding, it is considered that the principal requirements of the Notice have been complied (a & c) with only minor works outstanding…”. The officer stated he was awaiting contact from the site owner to confirm when he would be taking the remaining action needed.
26. Mr X made a formal complaint the following day. He was unhappy the Council appeared to be negotiating rather than enforcing the order. He also stated that what the officer told him was untrue; The officer’s email from November stated window and door frames had been removed. Mr X stated one remained glazed so the requirement to remove glazing had not been fully complied with. He sought an immediate third-party inspection of the site and that legal action be taken against the owner for failure to comply with the notice.
27. Following correspondence with the owner about the enforcement issues, the Council visited again on 17 December 2020. Again, the officers found that some elements of the enforcement notice had not been complied with.
28. There is evidence of discussion between officers about the expediency of prosecution at this point. This took account of the extent of the work done, what they found at the site visit and the fresh appeal which was pending.
29. The Council’s response to Mr X’s complaint explained the events that had occurred and action the Council had taken. It stated it was clear the officer who wrote to Mr X had carried out a site visit, and evident that not all the actions required by the enforcement notice had been taken. They acknowledged the law allowed prosecution under these circumstances. However, prosecution was not automatic. The Council had to consider the evidence, whether the person concerned could show they had done all that could be expected to comply, and whether enforcement was in the public interest.
30. The Council stated planning officers had discussed the situation with their legal department. They were not satisfied, at that time, that prosecution was in the public interest. They noted there was a separate, but related, appeal outstanding. They stated they would be instructing the site owner to comply in the meantime.
31. Mr X remained unhappy and asked to escalate the matter. He re-iterated that he sought legal action against the site owner and an apology from the officer who misled him.
32. The Council told us it ceased site visits in late 2020 as a result of the further COVID-19 lockdown.
33. In February, the Council sent a final response to Mr X’s complaint. It reiterated the Council’s position that prosecution was not in the public interest. It stated it did not consider an officer gave Mr X misleading information. However, it offered an apology if Mr X felt that had been the case.
34. In late February 2021 the further appeal about the property was dismissed by the PI. On 1 March the Council wrote to the site owner explaining what work still needed to be carried out to achieve compliance with the notice. Officers took legal advice about the retention of a satellite dish. This was for an alternate purpose to domestic television.
35. Council officers visited the site again on 22 March 2021. On 4 May the Council told Mr X the visit had confirmed no-one was occupying the building, the flue and stove had been removed and glazing had been removed. Outside, children’s play equipment had been removed, as had garden seating. As a result, it considered the enforcement notice had been complied with and it had closed its file.

Was there fault by the Council

Officer comments that Mr X found misleading

36. In November 2020 an officer told Mr X that the window and door frames of the property had been removed, and as such, the element of the enforcement notice that required this had been complied with. Mr X found subsequently that one opening was still glazed. The Council’s subsequent correspondence confirmed that while most of the glazing had been removed, one door had not been removed at the October site visit. In that respect the officer’s email to Mr X in November was inaccurate. However, it was clear to both the Council and Mr X that the enforcement notice, as a whole, had not been adhered to at this point, so the overall situation was not different as a result. The Council went on to inspect the property further and to consider what additional action it should take. The inaccuracy did not lead to any different actions or outcome. There are no grounds to conclude there was any intent to mislead or cover-up what was happening. That said, the Council’s response to Mr X’s complaint could have acknowledged the inaccuracy. I do not consider the inaccuracy caused any injustice.

The breach of the Enforcement Notice

37. Councils are not under a duty to take formal enforcement action whenever they identify a breach of planning control or a breach of an enforcement notice. Rather, the NPPF requires them to strike a balance between acting to uphold the integrity of the planning system and acting proportionately. This is a judgement for council officers to take.
38. There was some delay in issuing an enforcement notice following the CLUD appeal outcome. Given the breach had been established in 2017, this could have been done sooner. Some of this delay was avoidable in my view, and it represents fault. However, the Council noted the use of the building was not causing a nuisance to residents’ amenity and there was little actual harm being caused. The Council’s enforcement plan states that the priority it gives to issues and the resources it applies will, in part, be determined by these factors. The delay did not cause significant injustice to Mr X.
39. There was also some delay in responding to correspondence from September and November 2020. Officers apologised for this.
40. The Council’s decision to grant an extension of time to the site owner was one it was entitled to make.
41. I recognise that Mr X considered the Council should have prosecuted the site owner swiftly, soon after the extended deadline for compliance ended in September 2020, and this could have prevented the site owner’s second appeal. However, councils are not obliged to prosecute for breaches of enforcement notices. The NPPF encourages proportionate action, while maintaining confidence in the planning system. So, councils must take a balanced approach. There is evidence the Council considered whether it was appropriate to prosecute but reached a view that it was not in the public interest to do so. This was a decision it was entitled to make. I appreciate Mr X may disagree with it.
42. The Council decided the requirements of the enforcement notice have since been met and that further action is not warranted. I am satisfied the Council has properly reached this view. Although I found some fault in the time taken to issue the enforcement notice, this did not cause significant injustice to Mr X.

Back to top

Final decision

43. There was fault by the Council. This led to no significant injustice to Mr X.

Back to top

Parts of the complaint that I did not investigate

44. We generally expect complaints to be brought to us within 12 months of the events that are subject to complaint. We have discretion to consider older matters. I have not investigated the events from 2017 as Mr X could have brought his complaint about those issues to us sooner if he wished them to be considered. I have investigated more recent events.

Back to top

Investigator's decision on behalf of the Ombudsman