Summary: Mr X complained the Council did not fully consider concerns raised about alleged planning breaches regarding a Grade 2 listed building near his property. He says the Council failed to take sufficient enforcement action and delayed acting on his concerns. He says the Council’s actions allowed a harmful impact on his family’s amenity. We found fault by the Council. The Council has agreed to provide a remedy to address the injustice identified.

The complaint

1. Mr X complained the Council did not fully consider concerns raised about alleged planning breaches regarding a Grade 2 listed building near his property. He says the Council failed to take sufficient enforcement action and delayed acting on the concerns raised. He says the Council’s actions allowed a harmful impact on his family’s amenity. He also says he spent a lot of time and trouble pursuing the matter with the Council.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 discussed the complaint with Mr X and considered the information he provided.
6. I made enquiries to the Council and considered the information it provided.
7. Mr X and the Council had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Enforcement action

8. 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.
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)

10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. Councils may decide to take informal action or not to act at all. 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. Before taking action, councils must satisfy themselves that such action is the right thing to do, (that it is expedient).

The Council’s enforcement policy

11. The Council’s Economy and Environment Development Management Enforcement Policy (the policy) “sets out the process and the service standards you can expect from [the Council] for investigating and resolving breaches of planning control. The aim is to ensure a proportionate, consistent and clear approach to any action that it is decided to take and to record those circumstances where action is not appropriate”. (Calderdale Council Economy and Environment Development Management Enforcement Policy, November 2012, 1.4)
12. The policy says, “Priority will be given to investigating unauthorised works in the following order: Grade I Listed Buildings, Grade II Listed Buildings and Grade II* and works in Conservation Areas”. (Calderdale Council Economy and Environment Development Management Enforcement Policy, November 2012, 3.8)
13. The policy also says, “Formal action will not be taken where there are minor works which do not adversely affect the Listed Building”. (Calderdale Council Economy and Environment Development Management Enforcement Policy, November 2012, 3.9)
14. The policy sets out the Council’s enforcement procedures, including, “Officers will aim to carry out a site visit within 15 working days of receipt of the complaint, subject to prioritisation. Any potential serious damage to a listed building […] will require a visit within a shorter timescale” (Calderdale Council Economy and Environment Development Management Enforcement Policy, November 2012, 4.6).
15. Appendix three of the policy sets out key timescales for the enforcement process. This includes acknowledging receipt of a concern about unauthorised development within five working days of receipt of the complaint and carrying out a site visit in relation to Listed Buildings within five working days of receipt of the complaint.

Background

16. The Council granted planning permission to redevelop two Grade 2 Listed Buildings located near to Mr X’s property. The planning permission for one of the buildings allowed the developer to convert the premises into residential accommodation with storage. The Council placed conditions on the approval. The planning permission for the other building allowed the developer to partially demolish and redevelop part of the building, with conditions placed on the approval.

What happened

17. This chronology includes key events in this case and does not cover everything that happened.
18. Mr X contacted the Council on 16 April 2021 with concerns about the redevelopment. He said the developer had started work to convert one of the buildings, but work had ceased. Mr X said some of the work carried out was not part of the approved plans. Mr X also said one of the buildings was being used for business purposes and that planning permission had not been approved for this purpose.
19. Mr X contacted the Council again on 26 April 2021. He said that following his initial email, he had contacted an enforcement officer about his concerns, but they had not responded. Mr X asked the Council for assistance with his query.
20. The Council replied on the same day and said the building used for business purposes appeared to have last been used for storage, and that this was most likely to be its lawful use. The Council said strictly speaking, the kind of business reported by Mr X at the property would probably require planning permission. It said it was common for such businesses to operate from this specific type of building and said it did not feel it was a matter that it would be minded to pursue.
21. Mr X replied to the Council the following day and said its response was vague. He said the Council had lost touch with the condition and status of the building and asked if the developer required permission to change the use of the building.
22. Mr X contacted the Council again on 5 May 2021 and said the Council had not responded to his email.
23. The Council replied on the same day and said its resources to undertake investigations of planning concerns was very limited. It said enforcement action is discretionary and it could not see a compelling case to take further action in this case.
24. Mr X emailed the Council on 6 May 2021. He said he understood the pressures the Council was working under but asked it to reconsider its position given the building’s history and heritage. Mr X told the Council one of the buildings had uPVC windows which were not in keeping with a Listed Building.

What happened next

25. On 29 June 2021, the local Town Council contacted the Council with concerns it had about the redevelopment site. It also referred to the concerns raised by Mr X.
26. The Council replied to the Town Council on 7 July 2021 in response to the concerns it raised.
27. The Council continued to correspond with the Town Council about the site from August 2021 to December 2021. The Town Council raised concerns about the lack of adherence to conditions of the planning approval, including the partial demolition of one of the buildings. The Town Council said it provided an update to Mr X in December 2021.
28. The Council says an enforcement officer visited the site in January 2022. The Council says its enforcement officer also discussed Mr X’s concerns with him.
29. The Council says it opened a formal enforcement action file in April 2022. On 12 April 2022, the Council told the Town Council the partial demolition at the site was a part-completed, but consented project. It said a structural report at the time of the application condemned part of the building, and this was accepted by Historic England at the time. However, the Council said Historic England’s acceptance of the partial demolition was based on the retention of a specific wall at the edge of the site. The Council said the partial demolition did not retain the wall in the required condition, and its enforcement action was therefore focussed on this aspect of the site. The Council provided Mr X with a copy of the above correspondence.

Mr X’s complaint

30. Mr X complained to the Council on 20 April 2022. He said he had raised concerns about the site more than 12 months ago but they were still unresolved. Mr X said he believed the Council had been deliberately difficult and obstructive.
31. On 20 April 2022, the Town Council asked the Council to provide details of the actions it intended to take regarding the concerns raised. This included the matter of the uPVC windows.
32. The Council responded on the same day and said it was considering enforcement action regarding one of the buildings.
33. The Council provided Mr X with its complaint response on 18 May 2022 and said it had considered the correspondence from Mr X and the Town Council. The Council said it had provided detailed responses, most recently to the Town Council on 20 April 2022, and enclosed a copy of this correspondence for Mr X’s reference. The Council did not uphold Mr X’s complaint and said it had no obligation to take enforcement action. It said it had to prioritise its limited resources to areas of most urgent need in line with its enforcement policy. The Council said it would however continue to pursue the enforcement action previously referred to.
34. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.

What happened after Mr X’s complaint

35. On 20 May 2022, the Council told the Town Council it was unlikely to pursue the matter of uPVC windows at the site because it could not establish what type of windows were in place when the building was listed. In addition, it said the windows had been in place for at least 13 years and therefore, it considered there was a public interest problem in pursuing any prosecution.
36. In August 2022, the Council issued a Listed Building Enforcement Notice in relation to the breaches of planning control it identified.

Analysis

37. Mr X complains the Council did not fully consider, and/or delayed acting on his concerns about alleged planning breaches. He also complains the Council failed to take sufficient enforcement action.
38. The Council says it took what it considered to be appropriate enforcement action against the breaches of planning control it identified.
39. As stated at paragraph 10, planning enforcement is discretionary. As a result, councils may decide to take formal/informal action or may decide not to act at all. In this case, although the Council decided to take enforcement action regarding some of the concerns raised, it considered it was not expedient to take action regarding all of them.
40. It is not our role to decide whether the council should take enforcement action and we do not review decisions to decide if they were wrong. Instead, we look at the processes followed to make the decision, and if we consider a council has followed those processes correctly, we cannot question whether the decision was right or wrong.

The Council’s decision not to take enforcement action

41. In April 2021, Mr X reported concerns about a change of use of one of the buildings. The Council told Mr X it did not feel this was a matter it was minded to pursue. This is a decision the Council was entitled to make.
42. However, as part of maintaining an effective and robust administrative process, we would expect councils to keep records to demonstrate how and why it made its decision. This includes copies of planning officer’s notes to show the reasons why the Council considered it was not expedient to take action. In addition, the Council’s enforcement policy says it aims to record the circumstances where action is not appropriate.
43. I have seen no evidence to demonstrate how or why the Council decided not to pursue the alleged change of use of the building. I acknowledge the Council’s email to Mr X dated 26 April 2021 said it was common for certain businesses to operate from a specific type of building. However, it also stated that strictly speaking, the business owner would probably require planning permission. The Council’s email does not fully demonstrate the Council’s rationale for taking no further action. I acknowledge the Council’s policy explains it may decide not to take action, but it also says it will prioritise investigating unauthorised works in Listed Buildings.
44. I have seen no evidence to show how the Council considered these points prior to informing Mr X of its decision. The Council’s lack of records regarding its decision not to take enforcement action regarding this matter is not in line with its policy and does not demonstrate a robust administrative process. On this basis, the Council is at fault.

The Council’s timescales

45. The Council’s policy sets out the timescales for certain actions when complainants report potential planning control breaches. This includes acknowledging receipt of a concern about unauthorised development within five working days of receipt of the complaint. Having reviewed the information provided, the Council did not always adhere to this timescale. The evidence shows Mr X contacted the Council on several occasions to chase a response.
46. The Council’s policy also says officers will carry out a site visit, in the case of complaints relating to Listed Buildings, within five working days of receipt of the complaint. The information reviewed as part of this investigation indicates the Council did not adhere to this timescale.
47. I acknowledge site visits are not mandatory for councils to carry out. However, the policy does not state this and says officers will aim to carry out a site visit within the timescales set out in the policy. The Council’s failure to adhere to its key timescales is fault.

The Council’s responses to Mr X

48. Mr X says the Council delayed acting on the concerns raised. On 6 May 2021, Mr X complained that one of the Listed Buildings had uPVC windows which were not in keeping with the building.
49. The Council responded to the Town Council on 20 May 2022 to say it had considered the concerns about the glazing. It said there were several factors which mitigated against it taking enforcement action and gave the reasons for its decision.
50. Although this was also a decision the Council was entitled to make, the time taken to respond to this issue demonstrates delay by the Council, given that Mr X raised this concern 12 months previously. In addition, although the Council informed the Town Council about its decision, I have seen no evidence it also informed Mr X. The Council’s policy says that where it decides not to take formal action, it will inform those raising concerns within 10 working days. The delay in providing a response to Mr X as set out in the Council’s policy is fault.
51. Having identified fault, I must consider if this caused a significant personal injustice to Mr X. The injustice to Mr X caused by the fault identified is frustration and uncertainty as to how the Council considered his concerns.

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Agreed action

52. To address the injustice to Mr X, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mr X for the fault identified;
2. Make a payment of £300 to Mr X to recognise the frustration and uncertainty;
3. Remind staff to adhere to its key timescales as set out in its enforcement policy, and
4. Remind staff to retain records regarding the Council’s consideration of whether it is expedient to take enforcement action.

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Final decision

53. I have found fault by the Council and the Council has agreed to take the above action to remedy the injustice identified. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman