Bristol City Council (21 007 917)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 20 Apr 2022

The Ombudsman's final decision:

Summary: Mr B complained that a supermarket near his house was taking deliveries outside of the hours specified by a planning condition. There was fault by the Council. It has not communicated a clear decision-making process or plan to Mr B so that he knows what action he might expect the Council to take to resolve this. Also, it took too long to serve a breach of condition notice and to decide whether to take further action. This caused Mr B injustice and the Council has agreed to take action to remedy this.

The complaint

  1. Mr B complains the Council has failed to take action when a major supermarket opposite his house made deliveries outside of the hours specified in its planning permission. Mr B says that the Council has taken too long to investigate these breaches.
  2. Mr B says he has suffered distress and been unable to sleep properly for a number of years because of noise caused by the late-night deliveries to the store, and operations there.

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What I have investigated

  1. Mr B says the supermarket has been operating at night for some years and he has reported this to the Council. 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)
  2. For this reason, I have restricted the scope of my investigation to the Council’s actions from June 2020, this being 12 months before Mr B’s complaint to us.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 considered the information provided by Mr B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken all comments received into account before reaching my decision.

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What I found

The law and guidance

  1. 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.
  2. Planning enforcement is discretionary and formal action should happen only when 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.
  3. 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 2021, paragraph 59)
  4. Councils have a range of options for formal planning enforcement action available to them, including to serve a Breach of Condition Notice. This requires compliance with the terms of planning conditions already determined necessary for approval of the development.
  5. The Council’s enforcement policy says:
    • officers will initially try to resolve all breaches through negotiation but this will not be allowed to unjustifiably delay planning enforcement, and a time limit will normally be set in accordance with the priority of the case.
    • enforcement action is discretionary and the policy sets out how it will decide whether it is expedient to take formal action.
    • where development may be acceptable, the Council will invite a planning application to regularise it. Where this is not forthcoming, a decision of whether to take enforcement action will need to be made.

What happened

  1. Mr B lives close to a major supermarket site. When the Council granted planning permission for the site, it imposed a planning condition that no deliveries would be allowed between 10pm and 6am. This was being breached and Mr B complained to the Council.
  2. The Council registered an enforcement case in December 2020. It said that it agreed there had been breaches of the condition over recent years and the supermarket accepted this.
  3. The supermarket applied to the Council to remove this condition. It said that restrictions meant that lorries were waiting or parking on the adjacent highway, risking obstruction. However, the supermarket withdrew its application and said it would resubmit a more appropriate application to vary the planning condition.
  4. The Council updated Mr B and also told him that the Government had said that councils should not take planning enforcement against breaches of planning control on times for deliveries to retail stores due to the demands of COVID-19. The Council said it recognised the supermarket was breaching the condition before the pandemic, but at this stage it would follow the advice not to take enforcement action. It said it would review the situation in April 2021, by which time the supermarket may have submitted a planning application.
  5. In July, the Government issued a further statement that said that councils should not take enforcement action that would unnecessarily restrict delivery of food and essentials, but that it may be necessary to take action where neighbours are disturbed by out of hours deliveries.
  6. From September 2021, Mr B continued to send the Council further reports of lorries delivering outside the allowed hours. The Police also contacted the Council to say it had received several complaints.
  7. The Council considered the information Mr B had given it about lorries parking in the road awaiting the time to deliver to the site. It decided on the information it had, that the level of noise was not a noise nuisance but that night-time deliveries were a breach of the planning condition.
  8. The Council wrote to the supermarket on nine occasions between September and November 2021. It served a breach of condition notice on 24 November 2021. This said that the supermarket must stop breaching the condition by 22 December 2021.
  9. In response to my enquiries, the Council has said that it is in discussion with the supermarket and understands it intends to submit an application to vary the planning condition. To date, the supermarket has not submitted an application.

Was there fault by the Council causing Mr B injustice?

  1. The Council accepts that there have been breaches of the planning condition that restricts service and delivery times at the site. I appreciate that his had been happening for some years, but it was open to the Council not to take action following government advice that extended appropriate delivery times during COVID-19.
  2. Mr B says residents were not informed that restrictions had been relaxed. It may have been helpful but there was no obligation for the Council to do so. The planning condition was in still in place in this time however. The relaxation of enforcement did not stop the supermarket from resubmitting its application, but without the risk of enforcement action, it had less incentive to do so.
  3. The Council was able to revisit this again in July 2021, but still had regard to the government advice not to pursue action unless there is sustained disturbance to neighbours. And so the Council has to balance the interests of deliveries against those of the neighbours. I have looked at whether it has taken sufficient meaningful action in this time and whether it has kept Mr B up to date with its actions.
  4. The Council took from July to November to serve the notice. I appreciate that it was discussing the issues with the supermarket, but given the history of the site, my current view is that this was too long.
  5. I understand the supermarket has not resubmitted an application to alter the planning condition and the Council has not decided whether to take further enforcement action. In view of this, it is also fault that the Council has not given Mr B a clear plan as to how it might resolve the issue.
  6. The time it took to issue a notice and the lack of clear communication about what action it might take has caused Mr B uncertainty and frustration.

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Agreed action

  1. The Council will within one month of the date of this decision, show the Ombudsman it has:
    • apologised to Mr B for its shortcomings; and
    • formulated a plan as to how it will resolve outstanding enforcement matters, with expected timescales where possible so that there is no avoidable delay, and communicated this to Mr B.

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Final decision

  1. I have completed my investigation. There was fault by the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman

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