Summary: We will not investigate this complaint about the lack of progress of the Council’s enforcement investigation into the hours of operation of businesses near the complainant’s home. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault by the Council, and it has proposed appropriate action to move the enforcement case forward.

The complaint

1. The complainant, whom I refer to as Mr X, says no progress has been made by the Council with regard its enforcement investigation into businesses operating outside the permitted hours at a site near the complainant’s home.

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The Ombudsman’s role and powers

2. The Ombudsman can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• the Council has taken, or proposed to take, appropriate action in response to the complaint.

(Local Government Act 1974, section 24A(6) & (7))

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How I considered this complaint

3. I considered information provided by the complainant and the Council, which included their complaint correspondence and an update on the status of the Council’s enforcement investigations.
4. I also considered our Assessment Code.

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My assessment

5. 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.
6. Government guidance says: “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)
7. There is a range of ways of tackling alleged breaches of planning control, and Government guidance encourages councils to resolve issues through negotiation and dialogue with developers. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
8. With this in mind, I do not consider the Ombudsman should pursue the complaint further, because there is insufficient evidence of fault in the way the Council has responded to Mr X’s enforcement concerns, and it intends to take further, appropriate action in the near future. In reaching my view, I am particularly mindful that:
• Following Mr X’s initial complaint in July 2020, the Council visited the site and reminded the owner of the conditions imposed on its use. It updated Mr X and the case was subsequently closed as no further complaints were received.
• The Council reopened the case in 2021, following further reports of breaches of planning control at the site, and it invited Mr X to complete diary sheets.
• The Council has contacted the businesses on the site to remind them of the permitted hours of operation, and it served a planning contravention notice on one business in order to obtain further information.
• That business has recently informed the Council it intends to submit a planning application to vary the hours of operation.
• The Council says it intends to conduct out-of-hours visits over the coming months.

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Final decision

9. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way the Council has investigated the enforcement issues, and it has proposed appropriate action to progress the case forward.

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Investigator's decision on behalf of the Ombudsman