Summary: Mr X complained about delays in handling an enforcement matter he raised with the Council. Mr X complained the Council failed to take enforcement action once it did complete its investigation. The Ombudsman does not find fault with the Council’s decisions about how to close its enforcement cases. The Ombudsman does find fault with delays by the Council causing Mr X frustration and distress. The Council agreed to the Ombudsman’s recommendation to open a third enforcement case, apologise to Mr X and pay him £150.

The complaint

1. Mr X complained the Council failed to take enforcement action about the activities of a camping and caravan site near his property operating without relevant planning permission.
2. Mr X complained the Council took until March 2021 to register an enforcement case about the matter despite his first contact in June 2020. Mr X says the Council only registered the enforcement case following the involvement of his councillor.
3. Mr X also complained the enforcement officer allocated to his case failed to respond to his contacts and did not keep him informed of developments with his enforcement case.

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The Ombudsman’s role and powers

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. 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. 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

7. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mr X and the Council provided comments on my draft decision which I considered before making my final decision.

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What I found

The Law

9. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
10. Councils can take enforcement action if they find a developer has breached planning rules. However councils do not have to take enforcement action just because there has been a breach of planning control.
11. Government guidance says:
12. “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)
13. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost effective way of achieving a satisfactory result. The Council should keep a record of any informal action, including a decision not to take further action.
14. Planning Officers have a power granted by statute to enter onto an application site to assess a planning application. They may visit land outside the application site if invited to do so by the land owner. The decision on whether to do so is a matter for the Officer’s discretion.

Local enforcement plan and procedure

15. The Council has a statutory duty to investigate breaches of planning control and conditions attached to planning consents.
16. The Council’s Local Enforcement Plan says it will apply the law proportionately when it investigates breaches of planning control.
17. The Council says it will not act if the risk is low and likely to remain so. The Council says it will take formal enforcement action if it can show sufficient harm is caused and it is expedient to act in the public interest.
18. The Council says any enforcement activity on the back of its investigations is discretionary and it can decide what formal action it should take or if no action is necessary. The Council may decide to take no action even if it finds a breach of planning controls or conditions if this is a minor breach.
19. The Council’s policy outlines that carrying out work or changing the use of land or buildings without planning permissions is not a criminal offence. The Council says that often it will give opportunity for a person to apply for retrospective planning permission.
20. The Council sets out its process for investigating enforcement matters within its process flowchart. The Council’s flowchart shows a nine-stage enforcement investigation process and provides timescales. The Council’s process says that timescales are approximate and it may take longer to investigate complicated cases:
• Stage 1 is receipt of a breach of an enforcement issue.
• At Stage 2 the Council will contact the person to discuss the enforcement issue. The Council will decide if it can investigate a matter and advise accordingly. If the Council decides it can investigate a matter it will progress to Stage 3.
• The Council will create a case reference and send an acknowledgement letter to the person who raised the matter at Stage 3. The Council should complete stages 1 through 3 within two weeks from the date of receipt.
• The Council will begin an investigation at Stage 4. This investigation will check relevant factors such as planning history and planning conditions and the Council officer will gather relevant evidence.
• Once the Council has completed an investigation it will decide if it has identified an enforcement breach, this is Stage 5. If the Council has identified a breach it will progress to Stage 6. If it has not identified a breach if will close the case and provide a summary to the person who complained. The Council should reach the end of Stage 5 within 9 weeks from the date of receipt.
• At Stage 6 the Council will look to find an appropriate outcome to the enforcement breach. This can include prompting a retrospective planning application or negotiation of removal of unauthorised works or remedial action.
• If the Council has successfully negotiated a resolution it will close the case at Stage 7 and tell the person complaining. If the issues are ongoing it will progress to Stage 8. The Council should reach the end of Stage 7 within 16 weeks from the date of receipt.
• At Stage 8 the Council will consider the expediency of formal action. The Council should reach the end of Stage 8 within 16 weeks from the date of receipt.
• The Council will begin the formal action considered at Stage 8 at Stage 9 of its process. The Council should complete Stage 9 within 30 weeks from the date of receipt.

Council complaints process

21. The Council has a two-stage complaints procedure. The Council will log and try to resolve the complaint within 10 working days at Stage 1. The Council says it will tell a person about any delays beyond this 10-day timescale.
22. If a person is dissatisfied with the Council’s response at Stage 1 they can ask the Council to consider the complaint at Stage 2. The Council will try to resolve a complaint at Stage 2 within 20 working days. The Council will again tell a person about any delays beyond this 20-working day timescale.

What happened

Events before Mr X’s complaint

23. In 1987, the Council granted planning permission for a site opposite Mr X’s property to operate for six weeks of the year as a caravan park.
24. In 2011 the owner of a site opposite Mr X’s property put in a planning application to the Council. This planning application sought permission to complete improvements and extensions to a pre-existing caravan park.
25. The Council approved the planning application in 2012 subject to conditions. The Council allowed the site to operate from the start of April through to the end of September each year with a maximum of thirty caravans on-site. The Council said that site owner could not live on the site year-round, and the site owner must remove all caravans and mobile offices between October and March each year.
26. On 14 February 2020, the owner of the site put in a new planning application. This application sought advice from the Council about installation of a new access road and allowing use of the site for 12 months of the year.
27. The planning officer gave advice on 8 April 2020 advising it was unlikely the Council would accept the proposal if the site made a full planning application.

Events from Mr X’s complaint

28. On 6 June 2020, Mr X complained to the Council about the site near his property failing to adhere to planning permissions. Mr X said the site built the warden’s accommodation as a year-round structure and the site owner was living on the site.
29. The Council triaged Mr X’s enforcement complaint and passed this through for further investigation on 9 June 2020. On 11 June 2020, the Council told Mr X it would need to complete further investigation to decide if the site had breached planning control. The Council told Mr X the average time for it to finish an investigation was 16 weeks.
30. Mr X contacted the Council for an update on 16 October 2020 and 12 November 2020. On the latter contact, Mr X told the Council the site owner was occupying the site contradiction to the planning permission.
31. The Council completed an enforcement visit on 24 November 2020. The Council officer noted that caravans remained on-site when he visited. The Council officer contacted a person resident in a caravan who told the Council officer they had tested positive for Covid-19 and were self-isolating. The Council officer told the resident they would visit again in the future.
32. The Council officer noted that on completion of the site visit the site appeared in contravention to the planning conditions about occupation of the site outside seasonal operational times. The Council officer noted that the Covid-19 pandemic, and the associated health issues and ban on bailiff-enforced evictions, outweighed the planning harm. The Council officer closed the case.
33. Mr X complained to his councillor on 15 February 2021 the site hard started to lay tarmac and more people had started to live on the site. The councillor contacted the Council to pass over Mr X’s concerns. The Council told the councillor it will visit the site again once the Government lifts the lockdown laws.
34. Mr X contacted the Council for an update on the enforcement case on 24 March 2021. The Council told Mr X the case was at Stage 4 of its enforcement process and it was gathering information.
35. On 29 April 2021, Mr X made a formal complaint to the Council about the Council’s failure to take enforcement action against the site. The Council promised a response to Mr X’s complaint within 10 working days.
36. The Council provided its Stage 1 complaint response on 4 May 2021. The Council said:
• It logged the original complaint in June 2020 and completed a site visit after the Covid-19 lockdown ended.
• It closed the enforcement case following the site visit because the health concerns surrounding the Covid-19 pandemic outweighed the planning harm.
• Following reports in February 2021 about a change in use of the land it opened a second enforcement case and it was now at Stage 4 of this enforcement case.
• It would tell Mr X once it had finished its enforcement investigation and apologised for failing to do so when it closed the first case.
37. Mr X responded to the Council’s Stage 1 complaint response on 2 June 2021. Mr X complained about the Council failing to tell him about closure of the original enforcement case. Mr X said he considered the site had breached all the planning conditions. Mr X also complained about how long it was taking the Council to complete the enforcement investigation and the impact the site was having on him.
38. The Council appointed a new enforcement officer on 8 June 2021 to investigate the matter. The new enforcement officer visited the site on this date and discussed the matter with the site owner. The enforcement officer noted concerns the whole development on the site was unauthorised. The enforcement officer contacted Mr X to advise about the site visit and to confirm the enforcement case was now at Stage 6.
39. The Council officer wrote to the site owner detailing the planning contraventions on the site. The Council officer asked the site to mitigate highways issues immediately and asked them to submit a retrospective planning application to bring the site into line.
40. Mr X liaised with the new enforcement officer and on 18 June 2021 he advised Mr X the site owner would be putting in a new planning application.
41. On 13 September 2021, the site owner contacted the Council to advise they would be putting in the planning application shortly. The site owner did this on 21 October 2021.
42. The Council attached a site notice for public consultation on 28 October 2021 and told Mr X about the planning application on 8 November 2021. The Council told Mr X it had closed the enforcement case awaiting determination of the planning application. Mr X provided comments on the planning application.
43. On 14 January 2022, the Council approved the retrospective planning application subject to conditions. These planning conditions included:
• Operational times for the site from April to October.
• No occupation of the site outside the operational times (including the warden’s office).
• The site owner must remove all caravans and the warden’s office between September and March
• The site could host a maximum of 30 caravans.

Analysis

44. Mr X complained the Council delayed and failed to take suitable enforcement against the caravan site.
45. The Council has a duty to investigate breaches of planning permissions reported to it.

Council’s 2020 enforcement investigation

46. The Council opened an investigation into Mr X’s concerns following Mr X raising the matter with it on 6 June 2020. By 11 June 2020 the Council decided it could investigate the complaint, created a case reference and sent an acknowledgement letter to Mr X. The Council completed this within the two weeks outlined in its enforcement process. The Council acted in line with its policy in registering Mr X’s concerns and I do not find fault.
47. The Council did not take further action on Mr X’s enforcement case until it completed a site visit on 24 November 2020. The Council told Mr X the reason it did not complete a site visit sooner was because of the Covid-19 pandemic lockdowns in place.
48. When Mr X first contacted the Council, the UK was still subject to some limits imposed by the first national Covid-19 pandemic lockdown. The Council’s decision for not acting during this lockdown is suitable and not something the Ombudsman would question. However, the first national Covid-19 pandemic lockdown ended on 4 July 2020.
49. The Council failed to take any action to investigate Mr X’s enforcement case for slightly over 20 weeks after the 4 July 2020. The Council’s enforcement process says it will complete Stages 4 and 5 of its process within 9 weeks of receiving a case. Stages 4 and 5 are the Council’s investigatory stage in which it will decide if it can identify a planning breach and whether to close a case. The Council failed to adhere to the timescales set out in its process, this is fault.
50. When the Council completed the site visit on 24 November 2020 it decided to close the enforcement case. The Council made this decision because of health concerns for its officers because of the Covid-19 pandemic. The Council also decided it could not achieve a suitable outcome because of the Government’s ban on bailiff-enforced evictions during the Covid-19 pandemic.
51. The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is: ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948])
52. The Council officer noted the site appeared in contravention of the planning conditions about occupation of the site outside seasonal operational times. The Council’s decision that it could not take effective enforcement action about this issue because of the temporary legislation safeguarding evictions during the Covid-19 pandemic, is a decision the Council was entitled to make. The Council’s decision is reasonable and not one the Ombudsman can question.
53. While the Council’s decision to close the case in November 2020 is suitable, the Council failed to confirm closure of the case with Mr X. Stage 5 of the Council’s enforcement process say it will provide a summary of its decision to the person who complained. The Council’s failure to provide this summary to Mr X was fault.
54. The Council delayed for 11 weeks outside its enforcement process timescales, after the first Covid-19 pandemic national lockdown, in investigating Mr X’s report of an enforcement matter. The Council failed to respond to Mr X’s two contacts seeking updates in October 2020 and November 2020 and failed to tell him about closure of the case. These delays and lack of communication showed a failure of the Council to adhere to its policy. This also caused Mr X avoidable frustration and distress.

Council’s 2021 enforcement investigation

55. A councillor on behalf of Mr X contacted the Council on 15 February 2021 to raise repeat concerns about use of the site. The Council told the councillor it would complete a new visit after the Covid-19 pandemic lockdown ended.
56. The Council logged the contact as a new enforcement case for Mr X so it could investigate straight away at Stage 4 once the lockdown ended. The Council’s response to the second enforcement case is consistent with its approach to the first enforcement case.
57. Given the government had imposed a third national lockdown at the time of the councillor’s contact, I do not find fault with the Council’s response. The Council took steps to ensure it followed its enforcement procedure once the lockdown lifted.
58. The Government began lifting the third national Covid-19 pandemic on 29 March 2021. The Council did not progress with Mr X’s second enforcement case until 8 June 2021. The Council explained this was because of a staff absence meaning it needed to reallocate the case on 8 June 2021. While this is understandable, the failure to assign a new enforcement officer sooner to progress this matter is fault. This caused a delay of 10 weeks in investigating Mr X’s second enforcement case.
59. Once the Council assigned the new enforcement officer he completed a site visit, contacted the site owner and contacted Mr X. The enforcement officer also identified numerous breaches of planning conditions and reported these to the site. And, the enforcement officer prompted a retrospective planning application from the site owner to bring matters into line. The enforcement officer completed these actions in eight working days.
60. The new enforcement officer’s actions were both efficient and appropriate to reflect the matter. The enforcement officer has followed the Council’s enforcement policy and Stages 5 and 6 of its enforcement procedure.
61. While the site owner took until 21 October 2021 to submit a retrospective planning application, this is not the fault of the Council. The site owner told the Council they needed to get specialist input about how to plan the site and make the appropriate planning application. The Council allowed time for this without dropping the enforcement matter.
62. Once the site owner put in the retrospective planning application, the enforcement officer wrote to Mr X to advise he would be closing the enforcement case. The enforcement officer completed Stage 7 of its enforcement procedure in just under 22 weeks from receiving the case on 8 June 2021. The Council’s procedure says it should complete Stage 7 within 16 weeks. The enforcement officer failed to meet this timescale by 6 weeks; this is fault.
63. The Council has followed its policy in resolving the second enforcement case by prompting the site owner to submit a retrospective planning application. This route to resolving the enforcement matter is in line with the Council’s policy. I do not find fault with how the Council resolved the matter.
64. However, the Council delayed for 16 weeks, outside Covid-19 pandemic lockdowns, in handling the second enforcement case outside the timescales set out in its enforcement procedure. These delays are fault causing Mr X further avoidable frustration and distress.

Current situation

65. The Council has approved the site owner’s planning application but Mr X has complained about continuing breaches of the planning conditions, including about this new planning application.
66. In response to the Ombudsman’s contact, the Council has confirmed it will open a new enforcement case in Mr X’s name to investigate any continuing breaches of planning conditions.
67. I agree the Council’s proposal to open a new enforcement case is suitable to reflect Mr X’s concerns about the site. The Ombudsman cannot seek to pre-empt the Council’s decision about an ongoing investigation. The Council will need to follow its enforcement procedure and decide what, if any, enforcement breaches the site has committed and, in turn, decide what enforcement action it should take.

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Agreed action

68. Within one month of the Ombudsman’s final decision the Council should:
• Apologise to Mr X and pay him £150 for the total of 27 weeks delays in handling of the enforcement matters he brought to the Council given these 27 weeks of delays caused Mr X avoidable distress and frustration.
• Open a third enforcement case for Mr X about his concerns about breaches of planning conditions at the site opposite his property.

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Final decision

69. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman