Summary: Mr X complained the Council failed to take enforcement action regarding alleged breaches of planning control. Mr X also complained the Council failed to respond to his complaint regarding this matter. We found fault by the Council and the Council has agreed to apologise to Mr X and provide a financial remedy.

The complaint

1. Mr X complained the Council failed to take enforcement action regarding alleged breaches of planning control. Mr X complained the Council:
1. Failed to take enforcement action regarding alleged breaches of planning control by the developer of his property, and
2. Failed to take enforcement action regarding alleged breaches of planning control by a nearby building company.
2. Mr X also complained the Council failed to respond to his complaint regarding this matter.
3. Mr X also complained:
1. The Council failed to ensure the developer of his house complied with planning conditions before signing off the property;
2. The Council did not provide information to him following a request made in October 2019, and
3. The Council failed to follow the planning application process and advice from an environmental health officer by allowing his property to be built in a known noise red zone.
4. Mr X says the Council’s actions have caused him avoidable stress and have negatively impacted his family’s health and wellbeing. He would like the Council to take measures to reduce the noise pollution and to provide a financial remedy to recognise the impact to his family’s enjoyment of their home.

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What I have and have not investigated

5. I have investigated the complaints referred to in paragraph one back to April 2021. I have also investigated the complaint referred to in paragraph two. Although the complaints referred to in paragraph one are late, the issues complained about are potentially ongoing.
6. I have not investigated the complaints referred to in paragraph three. This is because these complaints are late.

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The Ombudsman’s role and powers

7. 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)
8. 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)
9. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
10. 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

11. I discussed the complaint with Mr X and considered the information he provided.
12. I made enquiries to the Council and considered the information it provided.
13. Mr X and the Council have 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

Planning enforcement – the law and guidance

14. 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 planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. (National Planning Policy Framework July 2021, paragraph 59)
15. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all.

The Council’s planning enforcement policy

16. This says:
• Whenever possible cases will be resolved through negotiation and use of the planning system. Formal enforcement action will be considered if other attempts at resolution prove unsuccessful. (Bolton Council, Local Planning Enforcement Policy, 1.8)
• Where it has been decided that there has been no breach or development, the informant will be notified and no further action taken. (Bolton Council, Local Planning Enforcement Policy, Appendix C, 3.2)
• Where a breach is identified, a decision will be made if action should be taken. Planning enforcement is a discretionary function and formal enforcement action will only be undertaken where it is expedient and proportionate to do so. (Bolton Council, Local Planning Enforcement Policy, Appendix C, 4.1)

Principles of good administrative practice

17. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes
• Stating the criteria for decision making and giving reasons for decisions
• Keeping proper and appropriate records
• Explaining clearly the rationale for decisions and recording them

Background

18. In 2016, the Council granted planning permission for a developer to build several new houses next to the site of a manufacturing company, Business A. The Council placed several conditions on the planning approval, including conditions relating to an acoustic fence and landscaping.
19. In late 2017, Mr X moved into one of the new houses.
20. In early 2018, Mr X complained to the Council about noise nuisance from Business A. He made further complaints of noise nuisance during 2018 and 2019.
21. Mr X met with Council officers in October 2019 to discuss the issue of noise nuisance. Mr X also made further complaints to the Council about this matter following the meeting.
22. The Council began legal proceedings against Business A regarding the noise nuisance. The Council says this matter is ongoing. Mr X’s complaints regarding noise nuisance from Business A are not included in this investigation.

What happened

23. This chronology includes key events in this case and does not cover everything that happened.
24. Mr X emailed the Council on 6 May 2021 to request an update regarding the developer planting a line of trees adjacent to the acoustic fence that separated his property from Business A. The Council replied the next day and told Mr X it had discussed the approved landscaping scheme with the developer. The Council said the process had taken longer than expected and it apologised for the delay.
25. On 14 June 2021, the Council served a breach of condition notice on the developer for its failure to comply with the approved landscaping scheme. The Council informed Mr X of this on 23 June 2021.
26. At about the same time, Mr X contacted his Councillor regarding his concerns relating to planning control. Mr X’s Councillor forwarded Mr X’s concerns to the Council.
27. In July 2021, Mr X told the Council he understood there was a planning condition relating to Business A’s property which placed restrictions on its use of part of its premises.
28. The Council told Mr X in October 2021 that it was continuing to discuss the landscape scheme with the developer and their landscape architect. It said it was waiting for the developer to submit a new scheme to the Council.
29. Mr X emailed the Council on 27 February 2022 to ask for an update regarding the developer’s agreement to plant trees in line with the planning conditions.

Mr X’s complaint

30. On 4 April 2022, Mr X made a formal complaint to the Council. He complained:
• the Council had failed to ensure the developer complied with the planning conditions before signing off the housing development;
• the Council failed to provide him with information that he requested at the meeting in October 2019;
• the Council failed to ensure Business A had complied with planning conditions regarding its own building, and
• the Council failed to follow the planning application process and advice from an environmental health officer by allowing his property to be built in a known noise red zone.
31. Mr X said the acoustic fence between his property and Business A was ineffective and that a previously installed acoustic fence did not meet planning specifications. Mr X also said he considered the windows installed in his property may not meet the required standards of the planning conditions, and that the Council had not verified that Business A had complied with a landscaping condition. Mr X also said Business A had not adhered to a planning condition which restricted the hours it was permitted to operate in a specific part of its premises.

What happened next

32. The Council emailed Mr X on 11 May 2022 in response to his request for an update made on 27 February 2022. The Council apologised for the delay and said it had taken longer than expected to reach an agreement with the developer regarding the provision of an appropriate landscape scheme. The Council said it had agreed a scheme with the developer in principle, and that any approved planting would be implemented in the next planting season in October 2022.
33. Mr X replied and told the Council he did not wish the developer to plant further trees in his garden, but suggested the trees may instead be planted on adjacent spare ground to provide additional cover. The Council replied and told Mr X the developer had submitted a new variation of condition application which if approved would provide for an amended landscape scheme.
34. In August 2022, Mr X brought his complaint to us to investigate. We contacted the Council who confirmed it had not yet replied to Mr X’s complaint made in April 2022. The Council said it would respond to Mr X’s complaint within 10 working days.
35. Mr X contacted us again in October 2022 as he had not received a response to his complaint.

Analysis

36. Although Mr X did not raise a formal complaint with the Council until April 2022, I have exercised discretion in investigating the complaints referred to in paragraph one back to April 2021. This is due to the delay in the Council’s handling of Mr X’s complaint.
37. The amount of information provided was considerable. In this report I have not made reference to every element of that information, but I have not ignored its significance.

Mr X’s complaint regarding alleged breaches of planning control by the developer of his property

38. Mr X complained the Council failed to take enforcement action regarding alleged breaches of planning conditions by the developer. The alleged breaches referred to by Mr X were regarding the windows in his property, the acoustic fence and the landscaping of the site.
39. The information provided by the Council consisted mainly of copies of its correspondence with Mr X, the developer and their landscaping architect, and the Council’s own internal correspondence.
40. Although Mr X did not raise his complaint to the Council until April 2022, the evidence shows he corresponded with the Council regarding the same issues before this date. Council records dated June 2021 show the Council considered the only outstanding potential planning breach was regarding the landscaping condition.
41. Having reviewed the evidence, I am satisfied the Council took enforcement action regarding Mr X’s complaint of a breach relating to the landscaping condition. In June 2021, the Council determined the developer had not complied with this condition and served a breach of condition notice as a result. The Council notified Mr X of this at the time. The developer subsequently submitted a variation of condition notice to amend the proposed landscaping scheme. The Council informed Mr X about the application. In October 2022, the Council approved the variation of condition application. The Council is therefore not at fault regarding this aspect of the complaint.
42. However, I have seen no evidence to show how or why the Council considered the matters relating to the windows and acoustic fence were not planning issues and have seen no rationale for how it made this decision; the Council’s notes simply refer to this matter as being discussed and that the Council considered these issues related to Mr X’s complaints of noise pollution.
43. It is for the Council to decide what, if any, enforcement action is appropriate. However, as stated at paragraph 17, we expect councils to keep proper and appropriate records to demonstrate clearly the rationale for their decisions. The Council is unable to demonstrate how it made its decision that Mr X’s concerns about his windows and the acoustic fence did not constitute a planning control breach, and/or whether it was expedient to take enforcement action. The Council’s failure to demonstrate its rationale regarding this matter is fault.
44. In addition, the Council’s enforcement policy states it will notify the informant if it decides there is no breach. I have seen no evidence the Council told Mr X it decided the issue of the windows and the fence was not a breach of planning control. On this basis, the Council’s failure to notify Mr X about its decision is fault.

Mr X’s complaint regarding alleged breaches of planning control by Business A

45. Mr X complained on 4 April 2022 that the Council failed to ensure Business A had complied with planning conditions that restricted the use of part of their premises.
46. The information provided shows Mr X had previously written to his Councillor in June 2021 regarding this matter.
47. The Council’s records show it sought legal advice in July 2021 about whether it needed to consider this matter from “an enforcement perspective”. The legal advice it received in August 2021 stated the wording of the condition relating to the restrictions of use for part of the building may potentially have more than one interpretation. The legal advice stated further consideration would be given to this.
48. I have seen no further evidence to demonstrate how or if the Council gave further consideration to this matter, including after Mr X raised it as part of his complaint in April 2022.
49. It is for the Council to decide if there has been a planning breach, but we expect councils to keep records to demonstrate how and why they make decisions regarding such issues. The Council is unable to demonstrate how or if it considered this matter further, or whether it made a decision as to whether it considered a breach had/had not occurred. This, together with the Council’s lack of communication to Mr X regarding this matter is fault.

Mr X’s complaint about the Council’s complaint handling.

50. Mr X made his complaint to the Council on 4 April 2022. The Council’s complaints policy states the Council has a two-stage complaints process. At both stages, the policy says the Council will provide a response within 20 working days, but if the complaint is complex, the Council will keep the complainant informed.
51. I have seen no evidence the Council responded to Mr X’s complaint. In its response to our enquiries, the Council acknowledged there had been an unacceptable delay in responding to Mr X. It said the planning service has experienced unprecedented demands on its resources in addition to the implementation of a new complaint system which placed additional pressure on resources whilst people are trained, and some teething issues are resolved.
52. The Council said the complexity of this case and the additional issue of the complaints of noise nuisance (which are subject to ongoing enforcement action and a court hearing) exacerbated the delay. The Council says in hindsight, it would have been preferable to make it clear to Mr X at the outset that it would only consider those issues which had occurred within approximately 12 months of the complaint being raised.
53. I acknowledge the Council’s explanation for the delay in providing a complaint response. However, the Council’s policy is clear that it will provide a response within 20 working days, or will inform the complainant if this is not possible. I have seen no evidence the Council kept Mr X informed and no evidence of a complaint response. The Council’s failure to adhere to its complaints policy is fault.
54. Having identified fault, I must consider if this caused a significant injustice to Mr X. Mr X says the noise nuisance negatively impacts the value of his house and affects his family’s ability to work and study at home. I acknowledge Mr X’s comments regarding the impact to him and his family; however, this relates to the complaints of noise nuisance which are the subject of an ongoing court hearing, and are therefore not part of this investigation. The impact of the fault identified as part of this investigation is the avoidable stress and uncertainty caused by the Council’s delay in responding to Mr X, and its failure to provide a rationale for its decisions regarding the alleged planning control breaches.

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Agreed action

55. To address the injustice identified, 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 in recognition of the time and trouble taken in pursuing the complaint;
3. Make a further payment of £300 to Mr X in recognition of the stress and uncertainty caused;
4. Remind staff to adhere to the Council’s enforcement policy, specifically regarding notifying informants when the Council decides there is no breach of planning permission;
5. Remind staff to adhere to the Council’s complaints policy timescales, and
6. Remind staff to maintain clear and appropriate records to demonstrate clearly the rationale for their decisions.
56. The Council has also agreed to take the following additional action within two months of the final decision:
1. Review Mr X’s concerns of alleged planning breaches relating to the windows, acoustic fence and restrictions regarding the use of Business A’s premises to determine whether the Council considers it is expedient to take enforcement action, and
2. Provide Mr X with a copy of the Council’s decisions (and its rationale) regarding the above.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman