Summary: Mr X complained the Council failed to take enforcement action over planning control breaches. Mr X says the Council’s inaction has enabled a business to continuously expand its business causing increased noise and air pollution. We found fault with the Council for its 14-month delay in reaching a planning application decision. We did not otherwise find fault. The Council agreed to our recommendations to apologise to Mr X and pays him £150 for the distress and frustration this delay caused.

The complaint

1. Mr X complained the Council failed to take enforcement action over planning control breaches.
2. Mr X says the Council’s inaction has enabled a business to continuously expand its business causing increased noise and air pollution.

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What I have investigated

3. I have investigated Mr X’s complaint about the delay in enforcement action, or inaction, by the Council from April 2021 to the end of June 2022.
4. I have not investigated Mr X’s complaint about issues before April 2021 or about the planning applications themselves. I have explained my reasons in the section called “Parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

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 provided comments on my draft decision which I considered before making my final decision.

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What I found

10. Mr X lives next to a business which uses six lock-ups and forecourts next to its site; I will refer to this business as “the Garage” in this decision. Mr X said the Garage uses the lock-ups for storage, including waste material, and uses the forecourts for vehicle repairs and washing cars.
11. Mr X complained to the Council in early 2020 about the Garage working in breach of planning controls. The Ombudsman previously considered Mr X’s complaint for issues up to March 2021 under case reference 20003465. The Ombudsman upheld Mr X’s complaint but found the Council would address the substantive part of Mr X’s complaint, about using the lock-ups, through its enforcement investigation.

Planning enforcement policy

12. Once the Council receives a report of a breach of planning control it will investigate a matter.
13. The Council’s enforcement policy says it will try to resolve possible breaches without taking formal enforcement action. The Council will try to reach a resolution through informal dialogue first.
14. If after a site visit the Council finds no breach of planning control, it will take no further action.
15. If the Council’s finds a breach of planning control, it must decide if it is expedient to take formal action. The Council’s policy outlines that formal enforcement action is discretionary. The Council will usually try to promote a person applies for a retrospective planning application before considering further enforcement action.
16. The Council’s policy says that it will suspend enforcement action until such a time that a planning application is determined.

Planning application delays

What happened

17. The Garage put in the two retrospective planning applications in October 2020.
18. The Council placed its enforcement investigations on hold awaiting granting or refusal of the two retrospective planning applications, undecided at the time of the Ombudsman’s previous decision. Final comments were provided on both planning applications on 20 April 2021.
19. The Council took 14 months from the date of these final comments, until June 2022, to approve both retrospective planning application.

My findings

20. The Town and Country Planning (Development Management Procedure) Order 2015, section 34, says a Council should take a maximum of 13 weeks to provide its decision on a planning application. This 13 weeks starts from the date following receipt of a planning application.
21. The Council should have provided a planning decision on the Garage’s planning applications by mid-January 2021. The Council took until mid-March 2022 to decide it needed further information from the Garage about ownership of the Garage. The delays after mid-March 2022 are notably down to getting further information from the Garage and not the fault of the Council.
22. However, the Council has delayed by 14 months from January 2021 to March 2022 beyond the timescales detailed in the Town and Country Planning Order 2015. This was fault.
23. This fault caused Mr X frustration and distress at not knowing whether the Council would approve the Garage’s actions through granting the planning applications. This also caused inconvenience at having his enforcement cases placed on hold for a significant time.

Parking and repair of cars on forecourt and storage of hazardous materials

What happened

24. Mr X complained to the Council about the Garage completing repair works on the forecourt and on the highway. Mr X provided photographs to the Council to show this.
25. The Council contacted the Garage and said it should not be completing works on the forecourt and must wait the outcome of the planning application. The Council warned the Garage if it received further photographs of it completing works on the forecourt it would consider formal enforcement action.
26. The Council completed site visits on 16 July 2021, 6 August 2021 and 9 August 2021 and saw no activity on the forecourt or on the highway.
27. Mr X asked for an update on this matter on 13 August 2021. The Council told Mr X it had warned the Garage and completed random visits but saw no activity on the forecourt or highway.
28. The Council completed further site visits on 16 August 2021, 23 August 2021, 6 September 2021 and 16 September 2021 seeing no activity on the forecourt or the highway.
29. Mr X contacted the Council to ask if a person needs Council consent to store hazardous materials in August 2021. The Council liaised with Mr X in September 2021 and explained it did not consider storage of car batteries or tyres as hazardous materials but said oil may be considered hazardous in certain volumes.
30. Mr X provided further photographs of the Garage carrying out works on the highway on 30 September 2021. The Council told the Garage it would be referring this matter to formal enforcement for investigation. The Council completed a site visit and discussed the matter with the Garage.
31. On 20 October 2021, the Council told Mr X the Garage said the incident in question was a person attending without an appointment and it did not carry out any works on the vehicle. The Council said the photographs do not evidence the Garage carrying out works. The Council said it would continue to complete site visits.
32. Mr X disputed the Council’s response and said he considered the photographs showed the Garage completing works. The Council explained that it did not share Mr X’s view. The Council also said planning control only covers the forecourt and not the highway.
33. Mr X continued to complain about works completed by the Garage. The Council continued completed seven further visits to the Garage until 8 December 2021 to check for any breaches of planning control.
34. Mr X also complained in December 2021 about storage of commercial and hazardous waste in a lock-up. The Council contacted the Garage who advised a scrap company took away car parts from a personal lock-up on 4 December 2021 and they stored commercial waste in the main garage.
35. The Council completed a site visit on 8 December 2021 and found no hazardous material stored in the lock-ups. The Council confirmed the lock-up in question was storing personal items from the Garage owner.
36. On 14 December 2021, the Council wrote to Mr X to confirm it had found no breach of planning control or storage of hazardous materials. The Council also confirmed it had completed many site visits and never found the Garage completing works on the forecourt or on the highway. The Council said it was awaiting the outcome of the planning application to decide if the Garage could keep commercial items in the lock-ups or complete works on the forecourt.
37. Mr X continued to dispute the Council’s response, but the Council upheld its position from 14 December 2021.
38. The Council continued to make regular visits to check if the Garage was completing works on the forecourt or highway.
39. In June 2022, the Council approved the planning application which permitted use of the forecourt for parking, minor repairs and for storage.

My findings

40. The Council and the Ombudsman previously considered Mr X’s complaint about use of the forecourt to complete car repairs and storage of waste materials. The outcome of these investigations resulted in the Council prompting the Garage to submit a retrospective planning application.
41. The Council’s policy says it would not take enforcement action until a planning application has been decided. Since April 2021, the Council has been waiting on the outcome of the planning application to decide its next steps. One of the planning applications approved in June 2022 approved the Garage to use the forecourt to park cars, complete minor repairs and to use the lock-ups for storage. The Garage’s actions are now authorised through planning permission and the Council cannot take enforcement action about these matters.
42. While the Council awaited the outcome of the planning application, it continued to investigate Mr X’s concerns and kept contact with the Garage. The Council has demonstrated that it completed regular visits to the Garage and investigated each of Mr X’s concerns. The Council has shown it has kept the potential breach of planning conditions under regular review and I do not find fault.
43. I have seen the evidence presented to the Council and also cannot reach a conclusive decision the Garage was completing repair work on the forecourt or storing commercial or hazardous materials. The Council took suitable steps to complete regular visits to see if it could witness repair works but never saw evidence of this. The Council also attended to view the contents of the lock-ups but only found personal items and no hazardous materials.
44. While Mr X may not agree with the Council’s decision that it found no breach of planning control, I cannot find fault with the Council’s actions.
45. The Council is also correct the Garage completing repair works on a highway is not a breach of planning control. This is a matter for the Council’s highways department. The Council has shown a joined up investigation between its highways and planning control department through completing the regular visits. The Council did not witness the Garage completing any works on the forecourt or on the highway. As such, there is no further action the Council could take in these circumstances.

Trees

What happened

46. In May 2021, Mr X reported the Garage to the Council for felling trees in a conservation area. The Council contact the Garage to comment.
47. The Garage told the Council they had removed the trees to clear space for car parking awaiting approval of the planning application.
48. On 7 June 2021, the Council wrote to the Garage to say it was a criminal offence under Section 21 of the Town and Country Planning Act 1990 to remove the trees. The Council said the planning applications would likely include a condition requiring planting of trees if it approved the planning application.
49. The Council said it would consider further action should the planning applications be rejected but it was not expedient to act in the meantime.
50. In October 2021, following contact, it told Mr X it expected the Garage to replant the trees but this would be resolved through the planning application.
51. In June 2022, the Council approved the planning applications with one subject to a condition to replant the felled trees in line with a landscaping scheme.

My findings

52. The Council contacted the Garage following Mr X’s complaint about felling trees. The Garage confirmed it had felled the trees so the Council sent a formal letter to the Garage advising it committed a criminal offence.
53. The Council took the correct steps to identify and confirm a breach under the Town and Country Planning Act 1990 by removing the trees. I do not find fault with the Council confirming this breach in a formal letter to the Garage.
54. As outlined in the Council’s enforcement policy, formal enforcement action by a Council is discretionary. In this instance, the Council decided it was not expedient to take formal enforcement action and advised this would be addressed through the planning applications under review. This is a decision the Council was entitled to make and not one I can find fault with.
55. Since the Council decided to address this matter through the planning applications, it was also entitled to place enforcement action on hold.
56. When the Council approved the retrospective planning applications, this included a condition to replant the felled trees. The planning application addressed this matter. I do not find fault with how the Council addressed this matter.

Noise nuisance

What happened

57. Mr X complained to the Council’s Environmental Health department on 5 December 2021 about noise nuisance caused by the Garage. Mr X notably complained about events on 4 December 2021.
58. The Council asked Mr X for further details about the noise nuisance caused who responded to advise the Garage operates from 7am each day six days a week.
59. On 4 January 2022, the Council asked Mr X to provide a noise nuisance diary to the Council detailing the noise they were suffering from. The Council told Mr X this would enable it to decide how to investigate his concerns.
60. Mr X said he wished to meet with the Council to discuss the matter. The Council offered to meet with him on 18 January 2022 and asked him to complete a noise nuisance diary in preparation for this meeting.
61. The Council wrote to the Garage to advise about the complaint it had received about noise from the alarm and roller door shutter. The Council explained it would not investigate noise from machinery from the Garage as it had been in operation for many years.
62. The Council met with Mr X on 18 January 2022 and discussed that the Garage formed part of the area due to length of time operating. The Council said if the Garage operated during normal business hours, then it could unlikely find a statutory noise nuisance. The Council installed noise monitoring equipment during this visit.
63. Mr X contacted the Council on 19 January 2022 to advise the Garage acted unusually in opening this morning. Mr X said he believed the Council had tipped off the Garage. Mr X requested removal of the noise monitoring equipment and suspension of the investigation. The Council removed the noise monitoring equipment and advised Mr X it would place his case on hold for three weeks.
64. On 23 February 2022, Mr X contacted the Council to ask for an update on the investigation. The Council advised Mr X had not been in contact since 19 January 2022 and it had therefore taken no further action. The Council told the Garage and Mr X it had closed the matter on this date.
65. Mr X contacted the Council on 24 February 2022 to complain about noise nuisance from the shutter and alarm. Mr X said the Garage had reverted to its usual form of opening in the morning following closure of the noise investigation.
66. The Council responded to advise it could install noise monitoring equipment without telling the Garage. Mr X rejected the offer of noise monitoring equipment as believed the Garage would be tipped off about the installation.
67. Mr X liaised with the Council about the next steps. The Council wrote to Mr X on 11 March 2022 to confirm closure of the matter. The Council said since Mr X would not allow for installation of noise monitoring equipment and the noise occurs outside its operating times, there is no further option for the Council to investigate.

My findings

68. The Council has investigated Mr X’s concerns and met with him to discuss its process. The Council also installed noise monitoring equipment in less than two months following Mr X’s complaint. The Council acted efficiently to open Mr X’s complaint and start its investigation. I do not find fault with the Council.
69. Mr X asked the Council to remove the noise monitoring equipment after one day. This was Mr X’s choice. The Council offered to keep Mr X’s complaint open for a further three weeks should he wish to complain about further noise nuisance. The Council has acted in line with Mr X’s wishes and I do not find fault.
70. While Mr X has complained the Council told the Garage about the noise investigation, the Council has a duty to tell a party about a complaint made about it. The Council did not tell Garage the date it was installing the noise monitoring equipment, or even confirm that it had done so. The Council told the Garage it was opening an investigation and that it had closed the investigation. The Council has not favoured the Garage in its investigation, and I do not find fault.
71. Since the noise nuisance restarted on 24 February 2022, Mr X has rejected the offer of noise monitoring equipment. The Council tried to engage in a further investigation for Mr X but this requires Mr X to work with the Council. Since Mr X would not agree to installation of the noise monitoring equipment, the Council has closed its investigation. I do not find fault with the Council.
72. Should Mr X have concerns about noise nuisance, he can complain to the Council about this.

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Agreed action

73. Within one month of the Ombudsman’s final decision the Council should:
• Apologise to Mr X and pay him £150 for the 14 months of delay in reaching a planning decision and the inconvenience, distress and frustration this caused him through delays in handling his enforcement complaint.

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Final decision

74. There was fault leading to injustice. As the Council accepted my recommendations I have completed my investigation as I consider that a suitable remedy.

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Parts of the complaint that I did not investigate

75. I have not investigated Mr X’s complaints about issues before April 2021. This is because the Ombudsman has previously investigated these issues under case reference 20 003 465.
76. I have also not investigated Mr X’s complaint about the outcome of planning applications. This is because Mr X has told us he has complained to the Council separately about the planning applications.

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Investigator's decision on behalf of the Ombudsman