Summary: The Council was at fault for the delayed enforcement investigation. This caused Mrs X and Mrs Y an injustice and the Council has agreed to remedy this.

The complaint

1. Mrs X and Mrs Y complained the Council delayed taking enforcement action against a business near their home after they reported a breach of planning control. They also complained the Council failed to:
• follow procedure
• provide information
• take into account relevant information to influence a decision
• give a reason for a decision
• keep adequate records
• give adequate advice
• answer reasonable questions

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What I have investigated

2. I have investigated the Council’s actions in relation to Mrs X and Mrs Y’s report of a breach of planning control. The other aspects of the complaint are intrinsically linked to this matter so I will not be considering them separately.

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The Ombudsman’s role and powers

3. 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)
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. Mrs X and Mrs Y were aware of the problem for nearly 4 years before they came to us. However, the issues are ongoing, they complained to the Council and believed the Council was taking action. For these reasons, I am exercising my discretion and will investigate the complaint although it is technically a late complaint.
6. 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

7. I have considered Mrs X and Mrs Y’s ’s complaint and have spoken to them about it.
8. I have also considered the Council’s response to Mrs X and Mrs Y and the planning documents related to the case.
9. Mrs X and Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation and guidance

National enforcement regulations

10. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 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.
11. Any contravention of the limitations on, or conditions belonging to, permitted development rights, under the Town and Country Planning (General Permitted Development) (England) Order 2015, constitutes a breach of planning control against which enforcement action may be taken.
12. There is a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way.
13. Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations.

Council planning enforcement guidance

14. The guidance sets out what the Council can and cannot investigate. It states that certain breaches may not be expedient to pursue. This includes minor or technical breaches that cause no demonstrable harm top public amenity or general location.
15. The guidance says the Council logs the report of a breach, gives it a reference number and sends an acknowledgement to the complainant. It aims to do this within 3 working days.
16. The Council then assigns a priority level on a case by case basis.
• Priority 1 means the work causes a potential threat to public safety and the Council aims to visit the site within 1 working day.
• Priority 2 development causes a clear and immediate harm to the locality and the Council aims to visit within 5 working days.
• Priority 3 means there is less impact in terms or harm being caused and the Council aims to visits the site within 10 working days.
17. The guidance sets out how the Council will investigate a complaint. This includes the site visit and an assessment as to whether planning consent is required for the works. It explains that where a breach has occurred, the Council may invite the owner of the premises to submit an application to attempt to regularise the situation.
18. It highlights that formal proceedings will not be initiated unless it is considered expedient to do so. It explains it would be unreasonable for the Council to issue an enforcement notice solely to remedy the absence of a valid planning permission.

What happened

19. Mrs X and Mrs Y live opposite an industrial estate. For the past 4 years they have been complaining to the Council about one of the businesses. They reported that the business breached advertising regulations and planning conditions.
20. Mrs X and Mrs Y first reported the alleged breaches to the Council in May 2018. They believed several of the business’ signs breached the national advertisement regulations. The Council logged the report and assigned it a priority 3 case. The Council requested the business submitted a planning application for the signage in 2019. The business applied in July 2019 and the Council refused it in August. The business removed the two signs in December 2019. The Council approved a revised application in April 2020.
21. Mrs X and Mrs Y said the problems with business continued over the next two years and they frequently contacted the Council to report further alleged breaches and to request updates. They said the Council did not consider the relevant regulations when reaching its decision not to issue enforcement notices on the business. They also said the Council did not provide an adequate reason why it would not issue enforcement notices.
22. The complainants contacted their local councillor when the Council did not deal with the problems. They said the Council did not consider the member enquiry at the time and only closed it in 2021 when they submitted a formal corporate complaint. They consider the Council’s record keeping was inadequate as the Council did not appear to log their initial complaint, or the member enquiry.
23. Mrs X and Mrs Y submitted a stage 1 complaint to the Council in September 2021. The complaint progressed through to stage 2 and stage 3 of the complaints process. Mrs X and Mrs Y were unhappy with the process and believing it was intentionally complex and the Council were not following procedure.

My findings

24. The Council acknowledged there were delays in dealing with the enforcement case.
25. The Council enforcement guidance only specifies timescales for the initial site visit. This case was logged and assigned priority 3 and the Council visited the site within 10 days of the reported breach.
26. Over the following months, the Council was in contact with the business to negotiate the removal of some of the signs. This was informal action and was proportionate to the level of the breach.
27. The Council admits that it could have been in more regular contact to chase the business’ inaction. There were long periods of time where there was no correspondence between the Council and the business.
28. Once the business submitted a planning application and a subsequent appeal, followed quickly by another application the Council did not take enforcement action. This is in line with national policy. Therefore, this 10 month period of ‘delay’ does not amount to fault.
29. In terms of the Council’s decision to not to take formal enforcement action, the Council had discretion to make this decision. I cannot question this if it was reached in the correct way.
30. The Council carried out its enforcement investigations in line with policy. However, the Council was at fault for the general delays encountered when negotiating with the business. By the Council’s own admission, it could have been in more regular contact to chase the business’ inaction.
31. The level of injustice caused by the delays was not significant. Whilst Mrs X and Mrs Y were frustrated by the time it took for the Council to progress the enforcement investigation, the outcome would not have been any different if it had progressed more quickly.
32. The Council has agreed to apologise to Mrs X and Mrs Y for the delays and pay £200 for the time and trouble it has taken them to pursue this complaint. This is in accordance with our Guidance on Remedies manual.

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Agreed Action

33. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X and Mrs Y for the delayed enforcement investigation.
2. Pay Mrs X and Mrs Y £200 for the time and trouble it has taken them to pursue this complaint.

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Final decision

34. I have completed my investigation. The Council was at fault for the delays during the enforcement investigation.

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Investigator's decision on behalf of the Ombudsman