Summary: Mr X complained the Council failed to take effective or timely enforcement action against his neighbour, who is using their land in breach of planning controls. We ended our investigation because enforcement action is ongoing and further investigation is unlikely to result in a finding of fault or show that a significant injustice to Mr X was caused by the Council.

The complaint

1. Mr X complained the Council failed to take timely and effective enforcement action for a serious breach of planning control.
2. Mr X said that because of the Council’s failure to take action, he has suffered loss of amenity, including noise disturbance.

Back to top

The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

4. 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)

Back to top

How I considered this complaint

5. I read the complaint and discussed it with Mr X’s representative. I read the Council’s response to the complaint and considered documents from its planning files, including the enforcement officer’s reports, enforcement notices and a ‘timeline’ prepared for court action.
6. I gave Mr X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received before making a final decision.

Back to top

What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Once granted, planning permissions remain valid for a period of time (usually three years). Once approved development has begun, the permission is implemented and valid forever.
9. Development is considered to have begun once the use has started or ‘material operations’ have commenced. A material operation could include:
• Construction work of a building;
• Demolition of a building;
• Laying pipes or foundations; or
• Laying out or constructing an access road or part of an access road.
10. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind’ or ‘unique’.
11. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ and is for the Council to decide.
12. Planning enforcement is discretionary and formal action should happen only when the council decides it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
13. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
14. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I – Buildings of exceptional interest.
• Grade II – Buildings of particularly important/more than special interest.
• Grade III – buildings of special interest.
15. If a building is listed, it is subject to an additional layer of planning control and protection.
16. There are areas of land designated as ‘green belt’ land. Green belt land is subject to enhanced planning controls, the purpose of which is to prevent urban sprawl by keeping the land open.
17. Government guidance sets out exceptions to development in the green belt, which include:
• Buildings for agriculture and forestry;
• Facilities for sport and recreation;
• Alterations to or replacements of existing buildings;
• Limited infilling or redevelopment of previously used sites (brownfield sites).

What happened

18. Mr X lives in a grade II listed building next to a site that benefits from planning permission to demolish an existing house and build a replacement. The site is in greenbelt land.
19. Several years ago, the landowner commenced the development by demolishing the original house but construction work on the new house has not started. I will refer to the landowner as Mr Y.
20. After the original house was demolished, Mr Y began living in several temporary buildings on the site, and began importing materials onto the land. A layby was also created on the public highway opposite the site and Mr Y’s lorry was often parked on it.
21. The Council received complaints from neighbours, including Mr X, that Mr Y was using the land for a variety of business related purposes, such as breaking, repairing and spraying vehicles, and storing and selling building materials.
22. In the spring of 2019, the Council visited the site to take an inventory of materials stored on it. A building control officer (BCO) accompanied the planning enforcement officer to advise whether they were reasonably required for constructing the house that had been approved. The BCO thought not.
23. The Council sought information about materials stored on the site from Mr Y’s representative, but it was not forthcoming. After more information about the impact the use of the site had on the listed building, the Council’s enforcement officer sought authority to begin action in the early part of the summer of 2019.
24. An enforcement notice was served setting out the alleged breach of planning control, which was that:

‘Without planning permission, the material change of use of the Land to a mixed (sui generis) use for the storage of building products/materials, plant and equipment, motor vehicles and motor vehicle parts and associated residential use’

25. The notice required that Mr Y cease the use of the land for storage of building materials, remove stored material, remove all buildings associated with this use and to stop living on the land for purposes connected with the use. The Council gave 3 months to stop the use and remove materials, and 6 months to stop the associated residential use of the site.
26. After the deadline to appeal the enforcement notice expired and took effect. The Council revisited the site in the autumn of 2019 when the first period of compliance was reached. Mr Y expressed an intention to comply with the notice and began clearing the site. Because of this, enforcement officers decided to allow more time to comply. They decided to monitor the site to check whether Mr Y was working towards compliance with the terms of the enforcement notice.
27. In March 2020 the UK government announced a lockdown because of the COVID-19 pandemic. This had a significant impact on local government services and caused delay in progressing the case against Mr Y.
28. In the early autumn of 2020, the Council received reports that more materials had arrived on the site. An enforcement officer spoke to Mr Y and warned him there would be a visit a few days later. The enforcement officer and an enforcement manager visited the site. They decided Mr Y was no longer complying with the requirements of the enforcement notice and so passed the file to the Council’s lawyers to prepare for legal action in the courts.
29. In the period between autumn 2020 and the time when the court papers were served on Mr Y in late spring 2021, the planning enforcement officer said she was busy progressing the case and was engaged in activities, such as:
• Corresponding with legal about the evidence she had collected;
• Correcting and annotating documents, including site photos;
• Collecting further witness statements; and
• Further site visits and meetings to discuss progress.
30. A court date was set for early summer 2021, but later adjourned for a few weeks as the judge was unavailable. At the court hearing, Mr Y pleaded not guilty and a new date was set in autumn 2021.
31. In response to an earlier draft of this decision, Mr X’s representative said that:
• the Council’s delays go back several years and were first brought to the Council’s attention in 2012; and
• Mr X decided to complain in 2021 when there was a clear lack of impending action by the Council.
32. Mr X’s representative said that the Council’s failure to act over this long period caused Mr X a significant injustice.

My findings

33. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
34. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
35. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
36. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
37. I think I should end my investigation, because:
• There is no clear evidence of fault in the way the Council has acted. It has considered the allegations, carried out investigations, considered its powers, found a breach of control and assessed the impact on the public. This is the decision making process we would expect.
• Mr X said the Council’s action was not timely and we do sometimes find fault in delay. The Council explained it has been affected by the COVID-19 lockdown, adjournments and lengthy preparations for legal action. The question for me is whether there is evidence of delay that amounts to administrative fault or ‘maladministration’. Having considered the Council’s timeline and the enforcement officer’s explanation, I have found no evidence of fault caused by undue delay.
• Enforcement action is ongoing. It will be up to a judge in the court to decide the matter, and it is possible they might disagree there is a breach or that it causes a significant harm to the public. In these circumstances, I cannot say an injustice was caused by the Council’s actions or inactions in respect of what has happened on the land.
• Even if the Council is successful in court, there may well be more hearings, in courts, tribunals or with appeal bodies, before the matter is finally resolved. I have reviewed what has happened so far but have seen no useful purpose in my further investigating the Council’s involvement at this time.
38. Mr X also complained that the Council’s failure to act extends back many years, but he only decided to bring his complaint to our attention in March 2021.
39. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12 months from when events occurred, or the complainant could have known about them. We have discretion to go back beyond this limit but would need a good reason to do so.
40. I have considered what Mr X’s representative has said about what happened and why Mr X waited to make complaint, but Mr X could have complained to us sooner and I see no good reason to extend my investigation to events that occurred long before our 12 month time limit. In any event, for the reasons set out in paragraph 37 above, I could not say that any delay caused an injustice that we can remedy.

Back to top

Final decision

41. I ended my investigation as it was not likely to result in a finding of fault, or evidence of a significant injustice caused by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman