Summary: Mr A and Ms B complain the Council failed to take enforcement action for an alleged planning breach. We have not found evidence of fault by the Council and have completed the investigation and not upheld the complaint.

The complaint

1. The complainants (whom I refer to as Mr A and Ms B) say the Council has failed to enforce an alleged planning breach caused by a neighbouring property placing commercial waste bins next to their boundary fence.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
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)

Back to top

What I have and have not investigated

5. We are not able to look at events that occurred a decade or more previously although this can be included as background information in our decision. In addition, there was a significant gap of two years from 2020 to 2022 where Mr A and Ms B did not actively pursue their case with the Council. Where such a gap occurs, we will not investigate events predating that period of inactivity. That means I am restricting the events under investigation to what happened from 2022. Events prior to that are included solely as essential background.

Back to top

How I considered this complaint

6. I have considered the information provided by Mr A and Ms B. I also asked the Council questions and examined its response, the relevant planning documents and policies.
7. I shared my draft decision with both parties and considered their comments.

Back to top

What I found

What happened

Background

8. In February 1996 the Council granted planning permission for the redevelopment of a site from residential to a care home. The permission included planning conditions for the siting of refuse. In May the Council approved the condition for the refuse storage. In April 1999 the Council granted planning permission for works to extend the care home and add parking spaces. There were no conditions attached to the permission for refuse storage.
9. In January 2020 Mr A contacted the Planning Department at the Council about waste storage issues with the care home which was next to his home. He asked what planning permissions were in place. Towards the end of the month Mr A complained to the Council. The care home had been using a screened area for waste storage but two years ago the waste was relocated to the boundary fence and was causing a nuisance. Mr A and Ms B said it was in breach of planning permission. The Council also received a complaint from a Councillor acting on behalf of Mr A and Ms B. The Council replied on 4 February to the Councillor and on 10 February to Mr A. It said the alleged breach was immune from enforcement because of the passage of time. An Officer had inspected the site on 31 January and checked the planning records. He found the planning condition from 1996 had never been complied with. As it was a breach of more than 10 years it was immune from enforcement action and became “lawful by default”. In addition, the implementation of the 1999 planning permission “superseded the requirement of the previously approved landscaping plan which included bin storage”.
10. Mr A continued to contact the Council. He said it had failed to properly investigate the complaint. The waste had been correctly stored and the 1996 condition complied with until December 2017. This meant the breach was not immune from enforcement. The Council told Mr A in February that further planning permission from 1999 superseded any permissions given in 1997. There was no requirement for waste storage in the 1999 permission and no basis to take enforcement action. Mr A asked the Planning Enforcement Manager to consider the case. He chased up the Council in March and April and asked about the complaints process. On 8 April the Manager wrote to Mr A apologising for the delay. He said the Planning Officer was correct because the 1996 permission was “rendered unenforceable” by the 1999 permission. Furthermore 20 years had passed since the permissions were granted. Mr A responded the 1999 permission did not invalidate the 1996 conditions. Screened storage for bins had only recently stopped being used. In addition, the 1999 permission had parking requirements. The commercial waste bins were now stored on some of those parking spaces which was also a planning breach. The Planning Officer advised Mr A he could not open attachments sent by him in April. There is no record of further significant contact from Mr A and Ms B to the Council for two years. I understand they mainly pursued the case directly with the neighbouring development.

Events I have investigated

11. On 3 May 2022 Mr A contacted the Planning Enforcement Team that rubbish storage issues persisted at the site. On 7 June the Planning Officer responded reiterating the Council’s view on the case. Towards the end of June Mr A’s Councillor contacted the Council and an Officer sent a response setting out why there was not a planning breach (a reiteration of the findings from 2020 as set out above). At the end of June, the Council received a Member request to review the case. This required the Council register a new planning enforcement case to allow the review process to proceed. At the end of July, a new enforcement case was registered. In October the Council sent its substantive response and explained how it had considered Mr A’s reports of an alleged planning breach and why it did not consider any enforcement action should be taken.
12. On 31 October 2022 Mr A asked the Council to escalate his complaint. He said the 1999 permission did not cancel the 1997 permission and the breach had started in 2017. On 5 January 2023 the Council sent its response. A bin store had been approved but the subsequent permission did not require a storage and waste collection point, as such the care home was free to store waste where it considered appropriate. The car parking spaces at the front of the property near the boundary could still be used with reduced capacity when the bins were located at the boundary. Whilst there appeared to “be a technical breach” of the parking condition from 1999 “enforcement action cannot be justified on parking or highways grounds” after consideration of the relevant parking policies. The Council also noted the site of the bins was screened from Mr A and Ms B by a high fence. The Council had considered the impact on the street scene, Mr A and Ms B’s amenity and concluded it was “not expedient to take enforcement action” even if it were possible.

What should have happened

13. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
14. When the Council receives a report about an alleged planning breach the case is allocated to a Planning Enforcement Officer to consider. The Officer may carry out a site visit if needed and check plans.
15. 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. 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 2018, paragraph 58)
16. Under s.171B of the Town and Country Planning Act 1990, a development is usually immune from enforcement if no action is taken within 10 years of change of use.

Was there fault by the Council

17. I have considered all the evidence and I cannot see there has been procedural fault by the Council. It has explained to Mr A and Ms B how it investigated their reports about the neighbouring site. In making its decision the Council took account of the relevant guidance, information from Mr A and Ms B and planning legislation. The Council followed the appropriate procedures when making this decision and I cannot therefore criticise it.
18. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether Mr A and Ms B disagree.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman