Summary: Mr X complained the Council failed to take appropriate and timely enforcement action regarding a breach of planning control near his home. Mr X says this has created a danger to road users, is unsightly, and cost him time and effort progressing the matter with the Council. We find the Council at fault for significant delays in acting and updating Mr X. We recommend it apologises to Mr X, pays him £200 for uncertainty and acts to prevent recurrence.

The complaint

1. Mr X complains the Council failed to take appropriate and timely enforcement action between 2019 and 2022 regarding the removal of a hedge and the erection of a metal gate, creating an access point on land near his home.
2. Mr X says this is now unsightly and has created a dangerous access point on a blind bend. Mr X also says he has had to spend a significant amount of time and effort progressing the matter with the Council.

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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 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)
5. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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

7. During my investigation I spoke to Mr X to discuss his complaint and considered any information he provided.
8. I made enquiries of the Council and considered its response. I also consulted the relevant law and guidance around planning and planning enforcement, which I have referenced where relevant in this statement.
9. Mr X and the Council had an opportunity to comment on my draft decision and I considered any comments received before making a final decision.

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What I found

Planning enforcement

10. Breaches of planning control are defined in S171A of the Town and Country Planning Act 1990 as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
11. Planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. 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.

National Planning Policy Framework

12. The National Planning Policy Framework (NPPF) sets out the government’s planning policies for England and how these are expected to be applied.
13. The Framework says effective enforcement is important to maintain 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.

Council’s Planning Enforcement

14. The Council publishes information about planning enforcement on its website. This says:
• The Council initially attempts to resolve breaches through negotiation and giving landowners a reasonable opportunity to right the situation. If negotiation fails, it will then consider if formal action is needed. The Council’s power to take formal enforcement action is discretionary and it will only use this if it can demonstrate that the breach causes serious harm to public services.
• Where a breach of planning control is identified, usually the Council will give owners of property an opportunity to put the situation right and advise them what steps are needed to do this. If it identifies a development is considered acceptable in planning terms, the landowner may be given an opportunity to submit a pre-application.
• The Council can serve an enforcement notice if something requiring permission has been built before permission is granted. This is an instruction to put things back how they were before work started. The Council will take this action if the work done is not acceptable, is harmful to the environment, or if the work is not in the public interest.
• It is a criminal offence not to comply with an enforcement notice and this could lead to prosecution.
• Dealing with enforcement cases can be a lengthy and complex process so it is not possible to give a standard time for dealing with them. The enforcement officer will always aim to provide regular updates.

What happened

15. Mr X lives next to a field which was previously separated from the road by a hedge.
16. Mr X reported a planning breach to the Council on 19 November 2019. He explained the owner of the field had cut away part of the hedge to install a gate and create an access point to the field from the highway. Mr X said this created a danger to road users, was unsightly, and would have required planning permission.
17. That day the Council visited the site to take photos and noted a new access gate had been installed. The Council carried out a land registry search to identify the landowner. It also made internal enquiries to establish whether this constituted a breach of planning control.
18. The Council has said there was a delay in following this up due to unusually high case loads and the impact of the Covid-19 pandemic.
19. Mr X contacted the Council on 27 April to request an update. The Council responded to Mr X on 5 May to confirm planning permission would have been required for the new gate.
20. The Council wrote to the landowner on 6 May. It explained the gate was unauthorised works and they would require planning permission for it to remain in place.
21. The Council did not receive a response, so it wrote to the landowner again on 19 June. The Council reiterated that the installation of a new access gate was unauthorised and asked the landowner to contact it within seven days to discuss this. The Council also recommended the landowner submit a retrospective planning application. The Council requested a response within seven days.
22. Again, the Council received no response.
23. The Council has said there was a further delay at this point due to continuing increased in workload and the continuing impact of the Covid-19 Pandemic. To keep the case moving, the Council re-assigned it to a contract worker in January 2021.
24. In February 2021, the case worker asked the Council’s highways department for an opinion on whether it ought to take further enforcement action.
25. Mr X emailed the Council on 11 March to ask for an update and asked whether an enforcement notice had been served. The Council responded the following day to explain it had not served an enforcement notice as it was currently investigating whether this would be the appropriate action to take.
26. It responded further on 24 March to explain the highways department had said it had considered the new gate and had no concerns about the safety of the highway. Because of this, the Council felt any retrospective planning application would likely receive a positive outcome and so it would not be appropriate to pursue an enforcement notice.
27. Mr X wrote back to the Council the following day to express his disappointment and reiterated his reasons for believing this should be treated as a planning breach. Mr X explained he would contact the Ombudsman within 21 days if he received no response
28. The Council replied to Mr X on 6 April. It explained neither its highways nor its agricultural departments had objections to the gate. It explained, even if a planning breach is identified, it did not automatically mean it would take formal action and this would depend on whether the Council determined it to be in the public interest to do so. However, the Council agreed to investigate further to provide a more detailed response.
29. That same day, the Council made further internal enquiries to decide whether its current stance was the correct one to take. It then decided to issue an enforcement notice.
30. On 12 May the Council issued an enforcement notice to the landowner. This explained the new gate appeared to be a breach of planning control and the landowner was required to remove this and reinstate the hedgerow. The enforcement notice explained the gate would need to be removed by 21 July.
31. In June 2021, landowner then contacted the Council to debate the legitimacy of enforcement action and confirm he intended to submit a retrospective planning application.
32. Mr X contacted the Council in August 2021 for an update. The Council explained it would carry out a further site visit, set up a case for non-compliance with the enforcement notice and update Mr X when it had further information.
33. On 10 September the Council wrote to the landowner to point out he was now in breach of the enforcement notice as he has not removed the gate by the deadline. It explained this constituted an alleged criminal offence and issued him with a caution. The Council asked that the gate be removed by the end of the month.
34. The Council visited the site again on 5 October and noted the gate had not yet been removed. It wrote to the landowner on 21 October explaining it appeared they had committed a criminal offence by failing to comply with the enforcement notice and inviting them for an interview on 11 November. However, this meeting was cancelled on 8 November, following the landowner providing further information for the Council to consider.
35. Mr X asked the Council for an update on 7 December. It responded on 15 December to explain it was in conversation with the landowner and the situation was progressing.
36. On 21 December the Council wrote to the landowner again, asking a series of questions about his non-compliance with the enforcement notice. The Council asked for a response within two weeks.
37. The landowner responded on 4 January 2022 and the Council began to put together a prosecution file. It handed this to its legal department to pursue in March 2022.
38. On 25 April Mr X complained to the Council. Mr X said he felt there had been unnecessary delays throughout the process. Mr X said that rather than initiating criminal proceedings, the Council ought to have used its powers to correct the planning breach and recover the costs from the landowner. The Council responded to Mr X to explain it would not be able to give more of an update until after legal proceedings.
39. In May 2022, Mr X brought his complaint to the Ombudsman.
40. In response to a draft of this decision, the Council explained:
• It generally keeps complainants updated of key progress when significant stages of an investigation are reached, such as service of a notice, court hearing dates, or case closure.
• Its enforcement team gives greatest priority to breaches of planning control where there is a significant harm to amenity and a more pressing need for action. While it tries to resolve all breaches, it has to assign a lower priority to some incidents which then take longer to progress.

Analysis

12 month rule

41. We cannot investigate complaints that have been brought to us more than 12 months after the complainant ought to have been aware of reason to complain. We are only able to exercise discretion if there are good reasons to do so.
42. The events Mr X complains about stem back to November 2019, which is more than 12 months before he referred his complaint to the Ombudsman. While Mr X’s complaint has been brought to us late, I have decided to exercise discretion to investigate from November 2019.
43. This is because Mr X was engaged with the Council constantly until he contacted the Ombudsman. Mr X was under the impression the Council was progressing his enforcement complaint so it is not until recently he would have been aware he had cause to complain about the delays.

The handling of Mr X’s enforcement complaint

44. The Ombudsman is not a planning authority and cannot determine whether a breach of planning control has occurred and, if so, what action should be taken to resolve the breach. Instead, we investigate how the Council has considered matters and whether it has acted in accordance with the law, guidance and its own enforcement objectives.
45. Mr X has said he feels the Council ought to be using its powers to correct the planning breach and recover the costs from the landowner rather than pursuing a prosecution. It is not for the Ombudsman to say what action the Council should take and so I do not find fault here.
46. However, the Council is responsible for causing Mr X significant uncertainty by failing to keep him updated or take action in relation to his report of a planning breach. While the Council visited the site immediately on receiving Mr X’s report, it then took six months to contact the landowner and only after Mr X chased it to. This is fault and the resulting uncertainty is injustice.
47. Despite the landowner missing the Council’s deadlines to respond, it did not proceed to issue an enforcement notice until a year later. It then took almost another year for the Council to decide to ask its legal team to seek prosecution against the landowner. This is fault and caused further uncertainty to Mr X, which is injustice.
48. While the Ombudsman sympathises with the difficulties arising from the Covid pandemic, the delays remain significant.
49. The Council’s policy explains the timescales for resolving a complaint can be lengthy and difficult to predict but it will keep complainants updated. This does not appear to be the case here as Mr X had to continually contact the Council for updates. This is fault and caused Mr X to go to the time and trouble of having to chase the Council which is injustice.

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Agreed action

50. To remedy the injustice set out above, I recommended the Council carry out the following actions:
51. Within one month:
• Issue an apology to Mr X for the fault identified above.
• Pay Mr X £200 for the uncertainty, time and trouble caused by the Council’s drift in dealing with the enforcement case.
• Remind staff dealing with enforcement complaints they should ensure they update complainants on key actions and decisions reached during their investigation.
52. The Council has agreed to these recommendations.

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Final decision

53. I find fault with the Council and make the recommendations set out above. The Council accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman