Summary: Mr X complained the Council failed to take enforcement action against a nearby garage for repeated breaches of planning control. We found fault with the Council for delays in handling Mr X’s enforcement case. The Council agreed to our recommendations to apologise to Mr X, pay him £250 and make a decision about what course of action to take on Mr X’s enforcement case.

The complaint

1. Mr X complained the Council failed to take enforcement action against a nearby garage for repeated breaches of planning control.

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What I have investigated

2. I have investigated Mr X’s complaint about the actions of the Council since October 2019.
3. I have not investigated Mr X’s complaint about issues with the garage from 2013 to October 2019. This is because the Ombudsman cannot investigate a complaint about issues that a person has taken more than 12 months to bring to our attention.

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The Ombudsman’s role and powers

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)
5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. If we are satisfied with an organisation’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

8. 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.
9. 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

Planning enforcement regulations

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:

“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)

12. 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.
13. Council’s planning enforcement plan and procedure
14. The Council’s planning enforcement plan and procedure details the actions the Council must take when investigating a complaint about planning control.
15. The Council’s plan and procedure details that enforcement action is a discretionary power of the Council and when it does exercise these powers it must be proportionate and in the public interest.
16. Once the Council has opened a complaint it should complete an initial investigation within 20 working days for matters relating to unauthorised works or use which is the source of a public complaint.
17. Within the initial 20 working days the Council should complete an initial investigation and decide if it needs to complete a site visit of the property to assess for a breach of planning control. Site visits are part of Stage 1 of the Council’s 2021 Enforcement Plan. The Council’s Enforcement Plan from 2021 makes no reference to timescales for site visits but its Enforcement Procedure in 2022 provides guidance that this should be completed within the initial 20 working days.
18. On completion of the initial investigation and site visit, the Council must decide what course of action to take. If the Council has not been able to find a breach of planning controls, it may close a complaint.
19. If the Council has established a breach of planning controls, it should try to regularise the breach where possible such as inviting a retrospective planning application if the Council considers this appropriate.
20. If the Council has established a breach of planning controls that is contrary to the strategy of the Council’s Development Plan or has a demonstratable negative impact it should consider issuing an Enforcement Notice. The Council’s enforcement plan says it will only take formal enforcement action when it is expedient to do so.
21. The Council should continue to monitor a matter during the compliance period to decide if the subject of the Enforcement Notice has complied with the notice. If the subject of the Enforcement Notice fails to comply the Enforcement Notice, the Council may pass the matter to its legal department for consideration of prosecution.
22. The Council says it will ideally close a case within six months but this can be extended where it has taken formal action or prosecution is required.

What happened

23. In 2013 and 2014, the owner of a property, Mr A, submitted a planning application for a change of use to use the property as a garage for MOT checks and diagnostics. The Council rejected the applications on both occasions.
24. Mr A owned a property next to the property in question which was a legitimate MOT testing centre.
25. Mr X complained to the Council about Mr A completing garage works at the property without planning permission in 2013. The Council monitored the site from 2013 to 2020 following repeat complaints from Mr X but found no breach of planning control at the property in which to take enforcement action over.
26. In October 2020, a Council officer attended the property and found three vehicles inside on ramps. The Council officer noted that employees were working on all three vehicles.
27. The Council served an Enforcement Notice on Mr A which would take effect from 2 December 2020. The Council said Mr A had been using the property to complete vehicle repairs, Sui Generis MOT and pre-diagnostic checks. The Council required Mr A to stop all operations at the premises related to these activities within two months of 2 December 2020.
28. The Council did not attend the property to check for compliance with the Enforcement Notice. Mr X contacted the Council in April 2021 to advise a garage continued to operate from the property. The Council wrote to Mr A on 15 April 2021 to ask him to stop all activity within the next 14 days.
29. Mr X complained to the Council on 4 May 2021 and 11 June 2021 about the ongoing garage works at the property. Within the latter contact, Mr X complained the Council was failing to pursue formal prosecution despite the Enforcement Notice and raised a formal complaint with the Council.
30. On 30 July 2021, the Council completed a site visit to complete a compliance check of the Enforcement Notice. The Council found cars on ramps with employees completing checks and diagnostics of the cars. The Council confirmed the property was in breach of the Enforcement Notice.
31. The Council instructed its litigation team to consider legal proceedings for non-compliance with the Enforcement Notice on 13 August 2021.
32. The Council provided a Stage 1 complaint response on 18 August 2021. The Council said:
• It had made errors and delayed in the past but had now changed its approach to enforcement cases.
• Prosecution did not proceed promptly as previously advised.
• Following the site visit on 30 July 2021 it now had a viable basis for proceeding to prosecution and had instructed its legal team accordingly.
33. The Council’s enforcement team and litigation team have passed this matter back and forth from August 2021 up to 26 August 2022. The Council has told the Local Government and Social Care Ombudsman (the Ombudsman) it is waiting on further instruction from its litigation team.

Analysis

34. Before October 2020, the Council attended the property often but failed to witness the property operating as a garage. Much of this timescale falls outside the remit of the Ombudsman. But, I would not find fault with the Council for the period of time that does fall within the remit of the Ombudsman. The Council can only act against a breach of planning conditions if it witnesses a breach.
35. In October 2020, the Council attended the property and witnessed a breach of planning conditions. By the end of October 2020, the Council had issued an Enforcement Notice to Mr A requiring cessation of certain business activities at the property.
36. In the circumstances of Mr X’s complaint, issuing an Enforcement Notice on witnessing a breach of planning control was the correct course of action. Given the two previously rejected planning applications, it would not have been appropriate for the Council to try to regularise the breach. I do not find fault with the Council’s actions.
37. The Council gave Mr A two months from 2 December 2020 to comply with the Enforcement Notice. This meant Mr A needed to stop operations at the property by 2 February 2021.
38. The Council did not monitor or try to witness a breach of the Enforcement Notice by 2 February 2021 in line with its policy. Under normal circumstances, I would find fault with the Council for failing to adhere to its policy. However, from the start of January 2021, the Government placed the UK under lockdown because of the Covid-19 pandemic. This meant the Council could not attend the property to witness a breach of the Enforcement Notice. This was outside the Council’s control and I do not find fault.
39. As of 17 May 2021, the Government allowed for indoor mixing again as part of a relaxation of the Covid-19 pandemic lockdown. From this point, the Council could attend the property to try to witness the breach of planning control. By this date, the Council had received two further reports of a breach of planning control at the property and should have completed a site visit. Using the 17 May 2021 as the start point for the Council’s investigation, the Council should have tried a site visit to witness a noise nuisance within an appropriate timescale. Since the 2021 Enforcement Plan contains no timescales, we can use the 2022 Enforcement Procedure as a guideline stating 20 working days is suitable. This means the Council should have attempted to complete a site visit by 15 June 2021. The Council failed to complete a visit until 30 July 2021. This was 6 and half weeks outside a suitable timescale and is fault.
40. On completing a site visit the Council witnessed a breach of the Enforcement Notice. Given the Council witnessed a breach of the Enforcement Notice on its first attempt, it is likely the Council would have witnessed a breach had the Council completed a visit sooner.
41. The Council followed its procedure on witnessing the breach of the Enforcement Notice and passed this matter to is legal department in August 2021. The Council’s decision to pass this matter to the legal department was a decision it was entitled to make and I do not find fault.
42. Since August 2021, the Council has failed to take further action about this matter.
43. The Council should make reasonable and timely decision based on the relevant considerations. The Council has failed to meet this principle and failed to decide on a suitable course of action.
44. The decision about what form of formal enforcement action to take against Mr A, including the decision about whether to prosecute, is a matter the Council must decide. The Ombudsman cannot tell the Council what action to take. However, the Council must make a decision and take action. Failure to make a decision and act is fault by the Council which has caused Mr X ongoing uncertainty and time and trouble in following this matter up with the Council.
45. The Council’s procedure says it will ideally close a case within six-months but this can be extended where prosecution is required. While the Council is considering prosecution as an option, taking nearly two years without reaching a decision on what action to take, and taking this action, is fault.

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Agreed action

46. Within one month of the Ombudsman’s final decision the Council should:
• Apologise to Mr X and pay him £250 for the delays in handling the enforcement case he brought to the attention of the Council causing Mr X uncertainty, time and trouble.
47. Within two months of the Ombudsman’s final decision the Council should:
• Make a decision about whether or not to take further formal enforcement action, including prosecution, against Mr A for acting in breach of the Enforcement Notice issued on 30 October 2020 and start to put this decision into action.

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Final decision

48. 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