Summary: The Ombudsman found fault by the Council on Mr and Mrs X’s complaint about it acting to ensure their neighbour cleared a site following a planning inspector’s dismissal of his appeal against the decision he was breaching planning consent. Its enforcement investigation was delayed, failed to keep them regularly updated about progress, and did not keep proper records. The agreed action remedies the injustice caused.

The complaint

1. Mr and Mrs X, who complain on their own behalf and that of their neighbours, Mr and Mrs Y, complain about the Council’s failure to:
1. act against a neighbour who failed to move two remaining trailers from his land to the rear of their property following service of a community protection notice;
2. act against a neighbour following a planning inspector’s decision that he had six months to clear the site and comply with an enforcement notice; and
3. keep them informed about what was happening on the case.
2. As a result of these failures, their quality of life is affected, and they have the distress of not knowing whether the situation might have been different but for these failings.

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What I have investigated

3. I have investigated the Council’s actions from December 2020 and not before. The paragraph at the end of this statement explains why. Reference to events before this date is included to put events in to context.

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The Ombudsman’s role and powers

4. 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)
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 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)
7. We cannot question whether an organisation’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)

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Planning law

8. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. The Government’s National Planning Policy Framework (NPPF) says councils, “should act proportionately in responding to suspected breaches of planning control.”
9. Section 171A of the Town and Country Planning Act 1990 (the Act) provides that a breach of planning control is defined as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

10. Councils can use planning contravention notices to get information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
11. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is appropriate to do so under section 172 of the Act. It is for the planning authority to decide whether it is appropriate to take such action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.

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How I considered this complaint

12. I considered all the information provided by Mr and Mrs X, and the notes of the conversation I had with Mrs X on the telephone. I also considered the Council’s response to my enquiries. I sent a copy of my draft decision to Mr and Mrs X, who shared it with Mr and Mrs Y, and the Council. I considered their responses.

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What I found

Background

13. Mr and Mrs X also complain on behalf of their neighbours Mr and Mrs Y who, like them, share a boundary with the land owned by the neighbouring farmer, Mr Z. They claim Mr Z wants to move away from farming to other activities for which he has no planning consent. They say he wants to use the site for recycling hardcore material, for example, but each time he applied for consent, his applications were refused by another local authority. The other authority was responsible for planning applications about waste.
14. Mr Z appealed the other authority’s decision to refuse consent to the planning inspectorate. The planning inspectorate refused the appeal and held the site needed clearing of material and returning to farm use. Mr and Mrs X claim although he failed to do this, the Council did not take enforcement action against him. One of the problems they faced was Mr Z placing fully hay laden trailers directly behind their land to intimidate them. As a result, the Council got a community protection notice against him. This type of notice is issued where a person’s conduct is having a persistent and detrimental impact on the quality of life of those in the area.
15. Mr and Mrs X complain the Council failed to keep them updated about progress on the case. At one point, they went three months with no contact about it at all.
16. I now consider Mr and Mrs X’s complaints:

Complaint a): failure to remove trailers

17. The Council served Mr Z with a community protection warning in July 2019 which he failed to comply with. As a result, it then served him with a community protection notice the following month. This was about trailers causing a nuisance to Mr and Mrs X and Mr and Mrs Y. It required him to not position them or other equipment within an exclusion zone. Nor was he to cause a nuisance. It also required him to remove them from the zone within 21 calendar days. Mr Z appealed this to the magistrates’ court which heard his appeal in June 2021. The court dismissed it.
18. The same month, the Council served him with an amended community protection notice. This removed reference to the exclusion zone and instead, referred to not storing trailers and equipment within ‘close proximity’ to the boundary. The Council says Mr Z then moved the trailers away from the boundary.

Analysis

19. I found no fault with the Council’s actions after December 2020 on this complaint. Once it served Mr Z with the community protection notice, the Council had limited options available to it. This was because he appealed it to court. Had the Council tried to act against him about the trailers before the appeal was heard, Mr Z could have defended it by saying the court had yet to decide it.
20. After the appeal, the Council served him with an amended community protection notice because of concerns with the scope of the exclusion zone in the first one, which was extensive. The Council was later satisfied Mr Z moved the trailers back enough to comply with the new requirement. This was a decision it was entitled to make after considering the notice and what Mr Z had done. We cannot challenge the merits of a properly taken decision.

Complaint b): clearing the site

21. Mr and Mrs X are unhappy that despite the planning inspector saying the site had to be cleared within six months, the Council took no action when Mr Z failed to do so.
22. The Council explained it served an enforcement notice on Mr Z in 2018 which he appealed. The notice set out the breaches which were about a material change of use from mixed use (agriculture and residential) to a different mixed use (residential, agriculture, storage yard for different businesses, importing/storage and treatment of various debris, an operating base for a hire business and storage of various plant, machinery, equipment, trailers, skips and other items). It required him to stop using the site this way and remove all items and materials listed.
23. The appeal was not decided until the end of 2020. The planning inspectorate upheld the enforcement notice. Mr Z had until February 2021 to comply.
24. Officers visited the site in February 2021 and told Mr Z the following month he had not complied with the notice. I have seen notes an officer made during this visit, photographs taken, and correspondence with him about his failure to comply with the notice. I have also seen correspondence between Mr Z and the Council about what specifically remained outstanding.
25. Officers again visited in July and again told Mr Z he had not complied with the notice. I have seen the notes the officer made during this visit and photographs taken.
26. In September, the Council emailed Mr and Mrs X after further contact from them. The Council explained its planning department was under considerable pressure, with increased workloads, and three senior planning officers leaving the team, along with other absences. It decided to prioritise planning applications rather than planning enforcement. It explained it would look at taking the case forward for prosecution.
27. In response to my draft decision, the Council gave further information about the staffing problems it faced. It explained in 2021, its planning department consisted of: one principal planner who was also responsible for planning enforcement; one enforcement officer; one full time equivalent senior planning position (which consisted of two part time posts); two 0.6 full time equivalent planning officers; two full time equivalent planning associates.
28. The Council also explained due to the Covid-19 pandemic, there was a 30% increase in planning applications for 2020/2021. This meant backlogs built up. In July 2021, the principal planner and both part time senior planning officers left. This meant there was no daily supervision of enforcement cases, a reduction in its capacity to deal with planning applications, and a loss of senior planning expertise. It tried to fill these posts with agency staff, without success. It decided to use a planning consultancy instead which led to two consultants starting work in October and November. They dealt with the backlog of planning applications.
29. In November, the Council served Mr Z with a planning contravention notice asking for clarification about the purposes of various machinery and other items stored there. He had 21 days to provide his response which the Council received the following month.
30. There was a meeting with Mr Z and the Council in December. I have seen evidence of this and correspondence between Mr Z and the Council.
31. In response to my draft decision, the Council also explained it received the largest and most complex application it had received for 10 years this month. Despite advertising for the principal planning officer post twice, it remained vacant. The performance of the two consultants was erratic and poor with existing staff working through half of their cases. The Council appointed a third consultancy to help. The development manager did not have time to direct the enforcement cases. This is a problem the Council continues to face.
32. In April 2022, the Council instructed an agricultural expert witness who visited the site with an officer. The expert was asked to give an opinion about whether the equipment and machinery stored on site is reasonably necessary for the purposes of agriculture as claimed by Mr Z.
33. The Council and Mr Z are currently in dispute about whether he remains in breach of the notice or not. It recently explained it has not yet received the report from its agricultural consultant due to personal reasons. It expects to receive the report shortly. It will then consider and decide on appropriate next steps.

Analysis

34. I make the following findings on this complaint:
1. The Council could not start to consider what further action it might take against Mr Z until after the appeal was heard, decided, and the time for compliance had passed. This means it had limited options available to it from 2018 to February 2021. I found no fault, therefore, with the Council’s actions from December 2020 to February 2021.
2. Officers visited the site promptly in February and decided Mr Z had still not complied with the notice.
3. There is evidence of correspondence between the Council and Mr Z during March. Officers explained to him why he was still in breach of the notice.
4. The Council gave Mr Z time to act to ensure compliance with the notice.
5. Just over three months later, officers contacted him again and visited. Having inspected the changes to the site, they told him he had still not complied with the notice.
6. I am not satisfied allowing Mr Z about three months to act to ensure his land complied with the notice was fault. This is because the site visit reports, and the photographs taken, reveal the extent of the land and the volume of different equipment and machinery spread across it. In the circumstances, I am satisfied this was a reasonable period to allow Mr Z to comply.
7. About four months later, the Council served him with a planning contravention notice questionnaire. This allowed the Council to require Mr Z to provide detailed information about suspected breaches of planning control. The information sought would help the Council decide what action to take for enforcement purposes. If Mr Z failed to supply a proper response, the Council had the option of taking him to court. The questionnaire asked Mr Z detailed questions about his land and its use.
8. While the Council clearly had to give him time to comply following their July visit, there is no information to explain why the Council served him with a planning contravention notice four months later. The only information I have explaining this period of delay is an email from the Council sent in September, after being chased about it by Mr and Mrs X, along with its response to my draft decision. The Council explained the reason for the delay was resources. Specifically, the high workloads, pressure, and prioritising planning applications which have statutory deadlines for processing, stem from reduced staffing. The Council explained what action it took to try and resolve staffing problems, which was not wholly successful.
9. While I have sympathy for the pressure the Council was, and remains under, and appreciate its difficulties with staffing problems and high workloads, I am satisfied the delay amounts to fault. This is because these problems are not unusual within councils and in this case, the lack of resources delayed the Council dealing with the issues complained about.
10. A month after serving the planning contravention notice, officers met Mr Z to help him complete it. He sent the response to the questionnaire the same month.
11. While the Council received Mr Z’s response in December 2021, it took until April 2022 to instruct the expert and have him visit the site with an officer. I assume from the Council’s response to my draft decision, the reason for this delay is staffing problems and high workloads. As noted, despite the steps the Council says it took, I am satisfied the delay amounts to fault.
12. I am also satisfied the identified fault caused Mr and Mrs X, and Mr and Mrs Y, an injustice. The delays caused distress in the form of uncertainty as they do not know whether the outcome of what enforcement action the Council is or is not prepared to take might have been known sooner. It also caused some frustration and anxiety about what, if anything, was happening.

Complaint c): informed

35. As noted at the start of this statement, I only considered the Council’s actions from December 2020.
36. Mr and Mrs X say following their last complaint, the Council agreed to keep in regular contact with them and Mr and Mrs Y. This would be a monthly catch up on progress where any significant development on the case occurred. They claim this did not happen. They also claim they had no meaningful contact for more than three months.
37. The Council says Mr and Mrs X telephoned monthly for updates. These calls involved the development manager, the planning enforcement officer, the principal planning officer, and the director of resources. It confirmed notes were not taken of the numerous telephone conversations.

Analysis

38. I make the following findings on this complaint:
1. I saw no evidence of any agreement to keep Mr and Mrs X updated every month as claimed.
2. The Council confirmed Mr and Mrs X, as well as Mr and Mrs Y, would call the Council monthly for updates.
3. There are no records of the telephone contact the Council claims happened. The failure to keep records of these calls amounts to fault.
4. Nor is there a record of the Council contacting Mr and Mrs X between February to August 2021. The lack of evidence for this six-month period, along with its explanation about staffing problems, suggests the Council failed to keep them updated. This is fault.
5. Clearly, the Council could not give Mr and Mrs X too much information about what was happening as it also needed to keep personal information about Mr Z confidential. What it failed to do was give general regular updates and possible time frames within which it was working towards by which it would next contact them.
6. I am satisfied the fault caused both Mr and Mrs X and Mr and Mrs Y an injustice. This caused avoidable distress in the form of uncertainty and frustration, for example.

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Agreed action

39. I considered our guidance on remedies.
40. I also considered, in terms of the periods of delay, that the Council would have allowed some time for Mr Z to act to ensure he no longer breached the notice.
41. In response to my draft decision, the Council confirmed it reviewed what action to take to address staffing resource problems at the time, and continues to do so.
42. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr and Mrs X, along with Mr and Mrs Y, a written apology for its failures to: progress its enforcement investigation promptly without delays; successfully resolve its ongoing staffing problem; keep them regularly updated about progress on its investigation; keep records of contact with them.
2. Pay Mr and Mrs X £150 for the avoidable injustice the fault caused.
3. Pay Mr and Mrs Y £150 for the available injustice the fault caused.
4. Review what steps it can take to keep complainants updated about progress on future investigations.
5. Remind officers of the need to make and retain records of contact with complainants as evidence of keeping them updated.
6. Promptly review the expert’s report when it is received, draw up an action plan for its investigation about possible enforcement action, and keep Mr and Mrs X and Mr and Mrs Y, updated about progress.

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Final decision

43. I found fault on the complaint against the Council made by Mr and Mrs X, and Mr and Mrs Y. The agreed action remedies the injustice caused.

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Parts of the complaint that I did not investigate

44. I did not investigate any complaint Mr and Mrs X, and Mr and Mrs Y, might have had about the Council’s actions before December 2020.
45. Mr and Mrs X initially complained to us in 2018. We advised them we could not investigate as any injustice to them was incapable of being assessed at that time because the enforcement notice appeal was ongoing.
46. After the decision on the appeal, they complained to us again, but they said their main concern was with the Council’s actions following the appeal along with the problem with the trailers.
47. As the planning inspector decided the appeal in December 2020, this is the date I took for the start of our investigation.

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Investigator's decision on behalf of the Ombudsman