Summary: Mr D wants the Council to take enforcement action for breaches of planning control at a nearby site. The Ombudsman has completed the investigation and not upheld the complaint. The Council has acted in line with procedures.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council should issue a Stop Notice to a nearby site for breaches of planning control.

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What I have investigated

2. I am looking at events from March 2021 to August 2022.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
5. 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

6. I have considered the information provided by Mr D. I asked the Council questions and examined its response.
7. I shared my draft decision with both parties.

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What I found

What happened

8. In March and April 2021 the Council received third party complaints about alleged breaches of planning control (breaches) at a site near Mr D. In May a Planning Officer (Officer) visited the site and witnessed possible breaches. He was not provided with sufficient information about ownership of the site at the visit and issued a notice at the end of the month to obtain details of the companies using the site. This was needed in order to purse enforcement action. In June one of the site owners responded but failed to detail all the parties with a material interest in the site. The Officer pursued the site owners for information.
9. Separate to Planning Control the Council’s Anti-Social Behaviour (ASB) and Environmental Team were considering whether the site was causing noise and ASB. This is not part of my investigation but included here as background information. In September the Council issued the site with a notice relating to ASB and noise which was successfully appealed. The Council then arranged a joint visit with Planning Officers to the site, this was with a view to enabling Planning to issue an Enforcement Notice.
10. In November the Officer told Mr D the Council intended to take enforcement action for breaches. A further site visit in December found evidence of ongoing breaches. However, the site owner did not provide details of the relevant interested parties which the Council needed to issue an Enforcement Notice.
11. In January 2022 the Council sent a further notice to the site owner and known occupiers for the additional information needed to issue an Enforcement Notice. In February the Council sought legal advice because the site failed to give the necessary information. At the start of March, based on legal advice, the Council issued an Enforcement Notice to the available list of interested parties. Mr D also complained to the Council in February and the Council responded in March setting out the enforcement process. It explained why a Stop Notice was not appropriate for this case and that it had to put actions on hold when an appeal was lodged.
12. In April the site owner lodged an appeal. The Council withdrew the Enforcement Notice in May because it did not include all the interested parties and who owned parts of the site. The Council met Mr D in July and said it was committed to enforcement action. It reiterated why a Stop Notice was not suitable in this case. On 21 July the Council re-issued the Enforcement Notice. That has now been appealed which means the Council has put any enforcement action on hold.

What should have happened

13. The Council’s Planning Team investigate reports of planning control breaches. A Case Officer will review the planning history for the site, contact the complainant and usually carry out a site visit. If the site owner has not provided sufficient information the Council can issue a notice requesting details of the interested parties at the site. Where the Officer finds there is a breach they must decide what type of action is appropriate. A Stop Notice is used in limited situations where the breach is causing “dangerous, irrevocable and irreversible harm”. It is usually issued to prevent the imminent destruction of protected trees or listed buildings. If a Stop Notice is successfully challenged as being disproportionate the Council is liable to pay financial compensation. It can also consider issuing an Enforcement Notice. This is the route most commonly used. An Enforcement Notice not only looks to stop the breach but can include remedial actions. It must be issued to all parties with a lawful interest in the site.
14. If the Enforcement Notice is appealed the Council must put enforcement action on hold until the appeal is decided.

Was there fault by the Council

15. Mr D wants the Council to issue a Stop Notice. There is no fault in this matter. The Council has correctly explained to Mr D about when it will use this type of enforcement and why it does not consider it appropriate in this case. I appreciate Mr D disagrees with the Council, but the Ombudsman will not question the merits of such decisions, nor can we tell the Council what type of enforcement action it should take.
16. The Council did have to withdraw and re-issue an Enforcement Notice in 2022. However, I do not see there was a procedural failing by the Council. It sought legal advice and tried to obtain details of all the relevant interested parties and site ownership before it issued the Notice. It has also taken longer to progress this case than usual. Again, the delay is largely due to lack of co-operation with third parties and the Council needing information which was not provided. It has reasonably sought to progress the case and keep events moving. I do not see evidence of significant fault by the Council. It has restated its commitment to pursue enforcement action but at present the case must be on hold pending the outcome of the appeals process.

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Final decision

17. I have completed the investigation and not upheld the complaint.

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Parts of the complaint that I did not investigate

18. I am not looking at events prior to March 2021. That is because we expect a complaint to be made within 12 months of the problem arising.

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Investigator's decision on behalf of the Ombudsman