Summary: Miss X complains about the Council’s failure to take enforcement action. We have concluded our investigation having made a finding of fault. Although we found no evidence of fault in the Council’s decision not to take enforcement action, we found that it did not correctly process and provide a response to Miss X during its complaints process. The Council have agreed to our recommendations.

The complaint

1. Miss X complains the Council failed to take enforcement action following her reports that her neighbour, Y had begun demolishing several outbuildings:

1. after planning permission for the demolition had lapsed;
2. without a bat survey, as required by the Wildlife and Countryside Act. Miss X says this meant Y had failed to comply with condition 6 of the original planning permission;
3. during bird nesting season, which Miss X said was at odds with the recommendations in the Ecology and Protected Species Report that no works should be carried out until the dormant season. Miss X says this also meant her neighbour failed to meet condition 6; and,
4. without complying with the approved plans in the original planning permission concerning demolition of the building.
5. Miss X also complains the Council failed to register her complaints and progress them in line with its complaint procedure.
6. Miss X also complains the Council failed to investigate her complaints about the absence of an asbestos survey, and about the storage and removal of asbestos.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

5. Our service spoke with Miss X and considered the information she provided. Our service also made enquiries to the Council and considered the information it provided in response. I offered Miss X and the Council an opportunity to comment on my draft decision and considered all comments before making a final decision.

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What I found

Relevant law and guidance

Planning enforcement

6. 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.
7. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. 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 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. 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 2021, paragraph 59)

The Council’s Policy

9. The Council’s enforcement policy says site inspection will be carried out within the priority timescales if an inspection is necessary and that each case will be assessed on its own merits. Once a site visit has been carried out and/or when all the full information required is gathered, the case will be assessed to establish whether a breach of control has taken place. A response will be made to the enquirer, developer and/or owner of the site, under investigation, setting out whether a breach has taken place and any proposed further action, or to make further inquiries to obtain additional required information.

Our published guidance on good administrative practice

10. This guidance sets out the standards we expect councils to meet when we investigate their actions.
11. The principles include being open and accountable. Councils should be open and clear about policies and procedures and ensure information and advice provided is clear, accurate and complete.

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What happened

12. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
13. In the months preceding December 2022, Miss X had been in contact with the Council regarding concerns relating to work her neighbour were undertaking. In December 2022, Miss X wrote to the Council again, she expressed further concern regarding demolition, the absence of a bat survey and that works were being undertaken in contrary to recommendations in the Ecology and Protected Species Report.
14. In April 2022, the Council opened an enforcement case following concerns raised by Miss X. The Council considered whether the development was in accordance with the approved plans for Planning Permission 1 and compliance with condition 6 of Planning Permission 1. In May 2023, the Council came to a decision on whether there had been a breach of planning and concluded that no breach had been identified.
15. The Council says that following further contact from Miss X in August 2022, it authorised a new enforcement case for further investigation.
16. In September 2022, Miss X returned a feedback form to the Council, expressing concern relating to the planning matters previously discussed with the Council. The Council also says Miss X had sent additional emails relating to the planning matters and so it processed these collectively as forming the basis for a Stage 2 complaint escalation. The Council said it had acknowledged that Miss X had not been provided with a formal Stage 1 response but deemed that responses she had received were detailed and could be classed as being similar to that which the Council would have provided as part of the process. The Council concluded that responses it had provided to Miss X were thorough and did not require further investigation. The Council concluded its Stage 2 complaint process taking no further action.
17. In January 2023, the Council came to a decision on whether there had been a breach of planning control for the part demolition of the existing barn building, and concluded that no breach of planning had occurred.

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Analysis

18. We are not an appeal body and so do not take a second look at planning enforcement decisions to decide if they were ‘right’ or ‘wrong’. Our role is to consider whether the Council acted with fault in reaching its decision. Where we find evidence of fault, we consider if this is likely to have affected the decision and caused the complainant significant injustice.
19. As a publicly funded body we must be careful how we use our limited resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision on whether there is fault causing injustice. This means we do not try to answer every question or address each detailed point raised by a complainant about what a council said and did. So, we cannot always respond to complaints in the detail people might want.
20. I have carefully considered all the information provided. However, here, my focus addresses the bullet points set out in paragraph 1 of this statement that relate to the Council’s decision not to take enforcement action, and how it handled Miss X’s complaint.

Complaint point A

21. I have considered Miss X’s complaint that demolition had taken place after planning permission for the demolition had lapsed.
22. The Council says that following a visit to the site in November 2020, the site was locked and no more work had taken place. The Council acknowledges that work had stopped completely on the site since at least September 2020.
23. During the course of the Council’s enforcement investigation, I acknowledge the Council’s observations that the roofs to the buildings had been removed. It is not clear to me whether this had taken place prior to the site being locked, or after. Further, I acknowledge the Council’s comments during the course of its investigation that it considered the buildings that had been demolished to have been approved to be so. In any event, the new owner of the site had submitted a planning application in May 2022 to regularise the demolished buildings on the land. The application was approved in October 2022.
24. During the course of the Council’s enforcement investigation, it concluded that the new owner had not carried on any development to continue with the implementation of the original planning permission, which had been abandoned.
25. I find that the Council has considered Miss X’s comments and reached a decision made properly that no breach of planning had occurred, as such I have not made a finding of fault.

Complaint point B

26. I have considered Miss X’s complaint that demolition had taken place without a bat survey, as required by the Wildlife and Countryside Act. Miss X says this meant Y had failed to comply with condition 6 of the original planning permission.
27. It is noted that condition 6 states ‘the development hereby permitted shall be carried out in strict accordance with the recommendations within the Protected Species Report’. Within the report, this addresses ‘precautionary measures and enhancement measures for bats’.
28. As part of the Council’s enforcement investigation, it considered the Ecology Report. The Council says the Ecology Report does not say that bats are present, and the demolition is low risk to bats, even if they are present. The Council said it had looked for birds’ nests on site but could not see that breeding birds would be affected. The Council acknowledged that although time had passed since the Ecology Report, it still formed part of the approved planning permission and that there were no other planning conditions relating to re-inspection prior to demolition.
29. Following a further inspection of the site, the Council confirmed that the roofs had been removed from the barns, but that it had not observed any birds’ nests.
30. The Council says it has no enforcement powers to force the landowner to undertake a bat survey, or to be included as part of an Ecology Report. The Council says this would need to be enforced by the Police as part of the Wildlife and Countryside Act and is outside the remit of the Council. The Council says it received confirmation from the Police that it was satisfied no there was no evidence of a wildlife crime.
31. The new owner of the site submitted a planning application and part of the proposal was to regularise the demolished buildings on the land. The Council says that a condition imposed requires the development to be carried out in strict accordance with the Ecology Report which was submitted as part of that application. The Council says it found no evidence that further work was continued on site that may require planning permission where bats or birds could be affected, and that the condition had not been triggered because the permission had not started to be implemented on site.
32. I find that the Council has considered Miss X’s comments and reached a decision made properly that no breach of planning had occurred, as such I have not made a finding of fault.

Complaint point C

33. I have considered Miss X’s complaint that demolition had taken place during bird nesting season, which Miss X said was at odds with the recommendations in the Ecology and Protected Species Report that no works should be carried out until the dormant season. Miss X says this also meant her neighbour failed to meet condition 6.
34. As described in paragraph 27, condition 6 states ‘the development hereby permitted shall be carried out in strict accordance with the recommendations within the Protected Species Report’.
35. Miss X says that she had witnessed bird nests falling and had provided the Council with evidence to show this. The Council disputes that Miss X has provided it with such evidence.
36. In any event, as part of its enforcement investigation, the Council undertook a visit to the site to observe any evidence of nests. The Council says it searched the external walls for hole nester’s and could see no evidence of faecal splashing to the walls or the floors beneath or any potential nest sites.
37. The Council undertook a further visit as part of its enforcement investigation and says it did not observe anything different from its previous visit. The Council also took photos of the area to evidence its observations. The Council has confirmed that a Wildlife Officer with the Police also attended the site on a separate occasion, who carried out their own inspection.
38. I find that the Council has considered Miss X’s comments and reached a decision made properly that no breach of planning had occurred, as such I have not made a finding of fault.

Complaint point D

39. Here I have considered Miss X’s complaint that demolition had taken place without complying with the approved plans in the original planning permission concerning demolition of the building.
40. As part of its enforcement investigation, the Council visited the site and determined that the buildings that were still standing remained because previous planning permission required their retention, and that the buildings that had been removed had been approved to be so.
41. The Council acknowledges that at the time, the applicant had submitted a new planning application which was awaiting determination. Following comment from Miss X that the buildings had been demolished, the Council visited the site again and concluded that no further demolition had taken place. In this time, the applicant’s new planning application was approved to regularise the demolished buildings and giving permission for the remaining buildings to be demolished.
42. I find that the Council has considered Miss X’s comments and reached a decision made properly that no breach of planning had occurred, as such I have not made a finding of fault.

Complaint point E

43. Here, I have considered Miss X’s complaint that the Council failed to register her complaints and progress them in line with its complaint procedure.
44. In the Council’s Stage 2 response to Miss X, it said that responses it had sent were detailed and thorough, and could when taken collectively, be classed as a formal Stage 1 complaint response.
45. When the Council provided a formal Stage 2 complaint response to Miss X, it reflected on these collective responses, considering them as thorough and that matters did not require further investigation. The Council concluded its Stage 2 complaint process taking no further action.
46. Here I have made a finding of fault causing an injustice to Miss X. The evidence available to me demonstrates that the Council did not process Miss X’s complaint as a stage 1 complaint, nor provided a formal stage 1 complaint response. Further, given the absence of a clearly defined Stage 1 complaint response to Miss X, the Council missed an opportunity to provide a substantive response to Miss X at Stage 2 of the complaints process, instead concluding that responses previously provided were sufficient.
47. This has caused Miss X an injustice as failing to respond formally at Stage 1 of its complaint handling process introduced ambiguity into its complaint resolution process, which led to Miss X not having absolute clarity on the Council’s position, as is expected from the process itself. A clear Stage 1 complaint response would have enabled the Council to clearly set out its position to Miss X, ensuring Miss X understood why the Council did not agree with her assertions and that her concerns had been heard and considered formally as part of the process by the Council. I consider that uncertainty and confusion was further exacerbated when at Stage 2 of its complaint handling process, the Council missed an opportunity to provide a substantive response to issues raised by Miss X.
48. As described in paragraph 10-11, the Council had not adhered to good administrative practice. Incorrectly processing Miss X’s complaint and failing to provide a formal complaint response caused uncertainty and confusion to Miss X, and there is scope for a remedy here to acknowledge the injustice.

Complaint point F

49. Miss X complained to the Council that she had reported issues regarding the storage and disposal of asbestos on her neighbour’s property and the absence of an asbestos survey, but the Council failed to investigate this. Miss X said that asbestos on her neighbour’s land was dangerous and potentially running off into local waterways when it rained.
50. From the evidence available to me, I can see that the Council undertook an inspection of the site in October 2022. The Council observed that there were no quantities of broken and small pieces, and did not observe evidence of any nearby water courses or that the pile of asbestos was insecure and could cause any contamination. The Council concluded that there were no grounds for it to take enforcement action. The Council says it left Miss X a voicemail in October 2022 to provide an update and to inform her that enforcement action would not be taken. I have not found fault with the Council’s actions.

Summary

51. It is not my role to decide whether there are breaches of planning control nor whether the Council should take enforcement action against such breaches. I rather look at the way in which the Council made those decisions. If I do not identify fault in the way the decisions were made, I am unable to recommend any changes to them. It is also relevant that the power to take enforcement action is discretionary and the Council can take other types of informal action to address breaches.
52. I recognise that Miss X remains dissatisfied with the Council’s decision not to take action, but where decisions have been made properly, it is not our role to comment on the Council’s judgment and I have not seen any evidence the Council has not complied with its enforcement policy.

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Agreed action

53. To prevent similar occurrences and remedy injustice identified as a result of fault, the Council will:
1. Pay Miss X an amount of £125. This is to acknowledged distress imposed on Miss X because of its complaint handling.
2. Review its complaint handling procedure and explain what service improvements it will make to prevent similar occurrences. Any service improvements identified should ensure that complaints made to the Council are processed and responded to in line with its complaint policy.
54. The Council will complete action point a within one month of the Ombudsman’s final decision and action point b within two months of the Ombudsman’s final decision.

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Final decision

55. I have concluded my investigation having made a finding of fault. Although I found no evidence of fault in the Council’s decision not to take enforcement action, I found that it did not correctly process and provide a response to Miss X during its complaints process. The Council have agreed to my recommendations.

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Investigator's decision on behalf of the Ombudsman