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Kirklees Metropolitan Borough Council (20 014 449)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 29 Nov 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to properly investigate his complaints of breaches of planning enforcement. There was no fault in the enforcement process. However, the Council was at fault when it failed to keep Mr X updated about his complaints.

The complaint

  1. Mr X complained about several alleged breaches of planning condition relating to commercial and residential properties owned by Mr Z near to Mr X’s business.
  2. Mr X said the alleged breaches mean there is insufficient parking and refuse facilities in the area and he and people using his business are affected by fumes and noise.

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The Ombudsman’s role and powers

  1. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  2. 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)
  3. 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

  1. I spoke to Mr X and considered his view of his complaint.
  2. I spoke to the Council and made enquiries. I considered the information it provided. This included the environmental health services and planning enforcement case files and complaints correspondence.
  3. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Planning enforcement

  1. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  2. A planning breach may occur if a council has granted planning permission subject to conditions and the developer breaks one or more of those conditions. There are statutory timescales within which enforcement action must be taken.
  3. Councils do not have to take enforcement action just because there has been a breach. 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 2012, paragraph 207)
  4. Addressing breaches without formal enforcement action can often be the quickest and most cost effective way of achieving a satisfactory result. Councils should keep a record of any informal action, including a delegated officer’s decision not to take further action. (Regulation 7 of the Openness of Local Government Bodies Regulations 2014)
  5. Councils may ask the developer to make a retrospective planning application without delay. (Section 73A Town and Country Planning Act 1990)

What happened

  1. Mr X owns a business. Mr Z owns land and properties in the vicinity of Mr X’s business. Mr Z’s properties consist of a mix of commercial and residential units.
  2. Many years ago, Mr Z submitted several planning applications to the Council. The Council granted permission for each application. Each application had conditions attached to it.
  3. In April 2020, Mr X complained to the Council about several alleged breaches of planning conditions and also about breaches of contractual obligations attached to a private sale of land between the Council and Mr Z. Mr X said some of the breaches meant the people using his business were experiencing noise and odours from a tenant of Mr Z’s who was running a business on Mr Z’s land.
  4. Mr X also complained Mr Z had submitted a planning application in 2020 seeking retrospective change of use permission for some of the residential properties. The Council had not yet made a decision about this. Mr X said Mr Z owned more residential properties than the ones in the planning application and these also had no planning permission.
  5. In relation to Mr X’s complaint about noise and fumes from a business on Mr Z’s land, a Council environmental health officer carried out a site visit and witnessed odours which could constitute a nuisance if they occurred regularly. The officer spoke to the tenant running the business and requested the activities causing the odours stopped.
  6. The officer also advised the tenant that they did not have planning permission for commercial activity. He advised the tenant that any application would need to include reports outlining how the odours and noise from the business would be managed and controlled. The officer referred the matter to planning enforcement.
  7. The Council responded to Mr X’s complaint in February 2021. It apologised for the delay in replying which it said was because COVID-19 had meant site visits had been significantly reduced. It said that once site visits had restarted, officers would arrange a visit.
  8. During my investigation the Council provided me with details of each of the alleged breaches and the action it had taken. It stated it had investigated each one and in most cases had decided to take no further action. This was because either the Council did not consider there had been a breach of planning conditions or it was too late to take enforcement action even if a breach had occurred. In one case, the Council had intervened and Mr Z had submitted a retrospective planning application which was still pending a decision from the Council. The Council would decide what, if any, enforcement action it would take if permission was refused.
  9. No further action was taken until June 2021 when Mr X made further complaints. The Council requested he provide details of the dates and times of the alleged incidents and reported the matters to the Health and Safety Executive and Fire Service for investigation. During my investigation the Council told me a multi-agency site visit and inspection of the residential units took place in July 2021 and the matter was ongoing.

My findings

  1. Mr X made his complaints to the Council in April 2020. The Council responded in February 2021, nine months later. This is significantly longer than we would usually expect. However, any delays must be considered in the context of the circumstances of the times and the COVID-19 pandemic meant severe disruption to many council services during this period. The Council, in its response to Mr X, explained this had the been the cause of the delay. However, it should have kept Mr X updated or informed him if was unable to respond to his complaint in a timely manner. This was fault and it caused Mr X frustration. The Council has already apologised to Mr X for the delays which is an appropriate remedy for the injustice caused by the fault.
  2. We are 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. Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused.
  3. In relation to Mr X’s complaints about planning enforcement, the Council investigated each alleged breach and came to a decision about what action to take based. In doing do it took into consideration the relevant legislation and planning guidance. There was no fault in the way the Council made these decisions.
  4. In the case of alleged statutory nuisance from a business, the Council took appropriate action, albeit delayed because of the pandemic. It carried out a site visit and advised the business owner. When Mr X complained again, it liaised with other agencies and held a multi-agency site visit. The matter remains ongoing. There was no fault in the Council’s actions.

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Final decision

  1. My investigation is completed. The Council was at fault because it failed to keep Mr X updated about its actions in relation to his complaint. There was no fault in how it handled Mr X’s complaints about alleged breaches of planning conditions and nuisance.

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Investigator's decision on behalf of the Ombudsman

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