Summary: Mr B complained about delay by the Council in dealing with enforcement issues on a site near his home. We found fault with the Council. We have asked it make a decision on the outstanding enforcement issue, pay Mr B £300 and improve its procedures for the future. The Council has agreed to our recommendations.

The complaint

1. Mr B complained that Forest of Dean District Council (the Council) failed:
• since 2017 to take enforcement action against unlawful development and use of land at a site near his home;
• to ensure three conditions on a planning permission granted in 2017 were complied with and discharged;
• to communicate adequately with Mr B over the issue; and
• to resolve or explain matters adequately through its complaints process.
2. These failures have caused Mr B significant distress, disturbance, inconvenience and time and trouble over a long period of time.

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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. 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

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B 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

National Planning Policy Framework: Planning conditions

6. This government guidance says that local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions.

Enforcement

7. 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.
8. 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.
9. 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)

The Council’s Enforcement Plan

10. This document states that an initial assessment of the complaint will be undertaken and a site visit made if necessary. The Council aims to do this within 20 working days of receipt of the complaint and the officer will then agree a course of action with the team manager within 25 working days of the receipt of the complaint.
11. Where a breach is identified, the Council will (within 24 working days of the receipt of the complaint) write to the relevant person setting out what they need to do to rectify the situation, the timescale for doing so and what may happen if they do nothing. will
12. The Council recognises the need to prioritise certain areas of enforcement work. Some breaches of planning control will require urgent and immediate attention, either because the time period for action is limited or because the impact of unauthorised activity causes significant harm to the public interest. Other breaches can be investigated and progressed to a satisfactory outcome through submission of a planning application, or agreement to take remedial steps, and these processes may take some time. Where such breaches do not cause significant harm to the public interest they will form the ongoing work of the Enforcement Team and not be accorded urgent and immediate priority.

What happened

13. Mr B lives in a rural area near a site running a commercial business. Mr B said he and his family were disturbed two to three times a month by antisocial behaviour, noise and traffic from users of the business.
14. Following complaints of unauthorised development in 2016, the Council investigated and requested a planning application to regularise the planning situation. The Council received a part-retrospective planning application in April 2017.
15. Mr B also complained about unauthorised works raising the level of agricultural land on the site which was being used as a recreational area for the business. The Council opened a new enforcement case and in September 2017 said to Mr B that it considered it was likely the works required planning permission. It visited the site in October 2017.
16. In January 2018 Mr B complained about further works connected to the business and the Council opened another enforcement case. The Council visited the site in April 2018 and communicated with Mr B.
17. In August 2018 the Council approved the planning application with several conditions including three relevant to Mr B: one required a site management plan (with measures to mitigate anti-social behaviour and adverse noise) to be submitted and approved within two months of the grant of planning permission. A second requiring detailed plans of the car parking to be submitted and approved within two months and a third asking for details of any floodlighting and external illuminations to be submitted and approved within three months of the decision.
18. In March 2019 Mr B complained to the Council that the site owners had not complied with the conditions. The Council opened another enforcement case and wrote to the owners reminding them of the need to discharge the conditions and complete a specific application form to do so. The Council’s last contact with the owners was in May 2019.
19. Two enforcement officers resigned in September and November 2020, leaving the Council with no enforcement officers until January 2021 when a new officer was appointed on a short term contract. The new officer contacted Mr B in April 2021 saying he may need to visit to discuss the case considering the lapse in time since the enforcement case was opened and the lack of progress with the investigation since then.
20. In June 2021 the officer wrote to the site owners giving his view that the works carried out in 2018 required planning permission, as did the change of use of the land to something other than agriculture, where the use exceeded 28 per year (the limit allowed under permitted development rules).
21. At the end of July 2021, he confirmed his view that there was a breach of planning control and he would be recommending an enforcement notice. The officer’s contract ended in August 2021.
22. In September 2021 the Council reviewed all the open enforcement cases and closed them leaving just one, relating to the discharge of the conditions. It also said it was still considering the potentially unauthorised works carried out in 2018.

Complaint

23. Mr B made a formal complaint in December 2021. The Council responded in January 2022.
24. The Council accepted there had been a delay in reaching a conclusion on the enforcement issues, for which it apologised. It explained there had been mitigating factors due to severe staff shortages and the COVID pandemic and the Council had prioritised its cases accordingly. It concluded that there was no evidence that the Council had failed to deliver its services to the expected level and so it did not uphold the complaint.
25. Mr B escalated his complaint to stage two of the Council’s procedure. The Council responded in February 2022. It acknowledged the stage one response had not addressed the issues sufficiently. But it said that the failure to discharge conditions was not a criminal offence but a mechanism for the applicant to insure themselves against the prospect of potential enforcement action should the works undertaken be found unacceptable in planning terms. It said the omission on its own did not render the development unacceptable.
26. It agreed that the Council had not delivered its services to an adequate level. It noted the Council had already apologised for the delay and had now requested a review of the processes and resources for dealing with the discharge of planning conditions.
27. Mr B remained dissatisfied and went to stage three of the complaints procedure. The Council responded in March 2022. It stressed that planning enforcement had an element of discretion for councils to exercise and it was not possible to give any guarantee when the case would be resolved. It also said it could see no evidence to suggest that the Council failed to make reasonable decisions in the case based on the level of priority and the time and resources available. It said it was not clear if the Council had advised the applicant to the correct process to follow to discharge the conditions and said this would be done as a priority.
28. Mr B complained to us in April 2022.
29. In response to my enquiries the Council strongly refuted all of Mr B’s complaint. It said it had sought to resolve the allegations with the landowners without the need for formal enforcement or legal action where possible, in line with national policy and its own enforcement plan. It said the Council had worked continually to resolve many matters at the site and this had resulted in the submission of an application to discharge the conditions in July 2022.

Analysis

Failed to take enforcement action against unlawful development and use of land

30. Mr B first raised the issue of unauthorised works on agricultural land and a subsequent change of use of that land in 2017. The Council has still not made a decision on the issue over five years later. I accept the Council has discretion in matters of enforcement, including prioritising cases where the harm caused is greatest. I also accept that the Council has experienced severe staffing shortages in the enforcement team. However, I fail to see how the Council can reach any other conclusion than it has delayed excessively and unacceptably in deciding whether or not to take enforcement action against the landowners. Its own enforcement policy aims to decide enforcement cases within five weeks.
31. The first officer who dealt with it, expressed an informal view in September 2017 that the works required planning permission. The second officer in June 2021 clearly stated the works and the change of use were breaches of planning control and he would recommend issuing an enforcement notice. Since then, no further progress has been made and no explanation given for the complete lack of action. The Council has given no indication as to why the case is so complex it requires this amount of time to consider or why it has been unable to reach a decision on it. The continuing delay is fault.
32. Neither has it provided any evidence to show its prioritisation process. Its only timescale appears to be the legal deadline to take enforcement action of ten years. This is unacceptable and exacerbated by the inability of the Council to even commit to deciding the case within that ten year timescale.
33. This is fault which has caused Mr B frustration and uncertainty. I accept that the extent of the injustice from the works is perhaps limited, given the distance from the site and the relative infrequency of the disturbance. But there is no evidence that the Council has gathered any evidence to assess the impact on Mr B of the works or inform how the case fits in with its prioritisation process. This is also fault.

Failed to ensure three conditions on a planning permission granted in 2017 were complied with and discharged

34. Government guidance states that planning conditions can be used to make otherwise unacceptable development acceptable. The Council attached six conditions to a planning permission in August 2018, three of which were meant to ensure the development had an acceptable and controlled impact on Mr B’s amenity and to be discharged within two or three months. It has taken nearly four years to secure an application to discharge those conditions. This is an unacceptable amount of time. It is fault which has caused Mr B significant injustice as antisocial behaviour and noise have been the source of his complaints from the site.
35. I am also concerned that the Council in its complaint response to Mr B played down the importance or significance of the conditions, somehow arguing they made little difference to the lawfulness or acceptability of the development. This contradicts the national guidance which states conditions can be used to make unacceptable development acceptable. This appears to indicate a reluctance by the Council to ensure developments comply with planning conditions.
36. I disagree with the Council’s assessment that its officers worked continually and made persistent efforts to secure the discharge of planning conditions. The COVID pandemic began in March 2020, but the Council had taken no action on the case since May 2019. This period also preceded the loss of key staff members. Even once staff were appointed in January 2021 there is no evidence any progress was made until July 2022.
37. The Council said in the stage three complaint response that it was not clear if the Council had told the site owners how to apply to discharge the conditions. I can see from the information the Council has provided to me that a clear explanation and link to the application form was provided to the site owners in May 2019.

Failed to communicate adequately with Mr B over the issue

38. The communication with Mr B was sporadic with long gaps over the five year period. At points it was helpful and addressed the issues he raised but the delay in deciding or progressing any of the issues complained about contributed to his sense of frustration and the need to provide more information to the Council to justify his points. This was fault

Failed to resolve or explain matters adequately through its complaints process.

39. The Council missed opportunities through the complaints process to acknowledge fault, accept responsibility for it and propose a resolution. Its responses contradicted national planning policy and its own enforcement plan, did not accept the need to have any timescale for reaching a decision and suggested that planning conditions were an insignificant safety net for the benefit of applicant. This was also fault.

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Agreed action

40. In recognition of the injustice caused to Mr B, I recommended a series of actions for the Council to take. The Council has agreed to the actions but asked for some more time to complete them. I have amended the timescales as follows:
41. Within one month of the date of the final decision, the Council will pay Mr B £300.
42. Within two months, the Council will make a decision on the outstanding enforcement issue Mr B reported in 2017 (the unauthorised works and possible change of use) and informs Mr B of the outcome in writing.
43. Within six months, the Council will:
• complete a review of its enforcement service to ensure:
1. there is a system to effectively monitor the progress of cases, with escalation to a senior officer if no action is taken within the 25 working day timescale in the Enforcement Plan;
2. the Council properly prioritises cases in accordance with its Enforcement Plan, including reaching a view on the harm being caused, considers introducing differing timescales for differing priorities and records the reasons for the decision on priority; and
3. staff correctly understand the function and use of conditions and the importance of keeping to timescales contained within planning permissions regarding compliance.

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Final decision

44. I consider this is a proportionate way of putting right the injustice caused to Mr B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman