Summary: Mr X complained the Council failed to resolve a planning breach that occurred near his home. We have found fault with the Council for not taking adequate steps before reaching the decision to not take formal enforcement action.

The complaint

1. Mr X said the Council failed to resolve ongoing planning breaches regarding the use of floodlights at a nearby school.

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The Ombudsman’s role and powers

2. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I considered Mr X’s complaint and supporting information.
5. I have also considered the Council’s response to Mr X and to our enquiries.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning enforcement law

7. There is a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way.
8. Local planning authorities have discretion to take enforcement action when they regard it as expedient to do so having regard to the development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan.
9. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework.

Planning enforcement when the Council is the applicant

10. The principle underlying planning regulations is that local authorities must make planning applications in the same way as any other person and must follow the same procedures as would apply to applications by others.
11. There is nothing in law to stop a council serving an enforcement notice on itself but it would be a nonsense as ultimately it would end up prosecuting itself. A council should have procedures in place between departments to manage situations where a breach of planning control occurs.
12. Section187 A of the Town and Country Planning Act 1990 provides for enforcement of a planning condition by the breach of a condition notice. Annex 4 of the 1990 Act explains how the notice is intended to operate as an alternative method of dealing with this type of breach of control. The breach of condition notice is mainly intended as an alternative to an enforcement notice for remedying a breach of control arising from failure to comply with any planning condition or limitation.
13. The Act also suggests that a notice can be served on a person carrying out a development or any person having control of the site. Therefore, the Council could serve a notice on the headteacher of the school or the Academy Trust.

Background

14. Mr X lives behind a school. In January 2020, the Council granted planning permission to itself for the redevelopment of the high school. This included new sports pitches and lighting.
15. The planning approval included a condition restricting the operating hours of the sports pitches and lighting. These hours are:
• Pitch A 8.00-22.00 Monday to Friday
• Pitch B 8.00-21.00 Monday to Friday
• Both pitches 0900-1800 on Saturday, Sunday and Bank Holidays.
16. The condition also specified the lighting for both pitches should only be in operation when the pitches are in use.

Report of an alleged breach

17. Mr X reported an alleged breach of the conditions in October 2021. He said the lighting was on outside the restricted hours and was left on when the pitches were not in use.
18. The Council investigated the alleged breach and contacted the developers and the school. In early March 2022, Mr X emailed the Council and confirmed the lights were being used in accordance with the planning permission.
19. Later that month, Mr X reported the lights were still on at 21.15. The Council spoke to the school who confirmed an error had been made.
20. The Council said there were internal discussions regarding the issue of the Council being the applicant and the planning enforcement body. It agreed it could not take action against itself. It told Mr X that any future breaches should be dealt with by the department of the Council responsible for the development.
21. The Council closed the enforcement case in April 2022.

Complaint to the Council

22. Mr X complained to the Council in May 2022. The Council responded and said following an investigation, it was satisfied that a breach had occurred. It explained that because the Council was the applicant for the planning application, it placed certain procedural barriers due to limiting legislation.
23. It explained an enforcement officer had spoken with the relevant school department in the Council, but it was not technically possible to serve a normal enforcement notice on the Council. It said even though it was aware that breaches were still occurring, it could not take further action other than liaising with the academy responsible for the school.
24. In its stage 2 response, the Council confirmed that the relevant staff of the academy had been trained in the operation of the sports lighting and the Council considered the matter resolved.
25. In its response to our enquiries, the Council said the pitches had been fitted with a timer that automatically turned the lights off at 22.00 on Pitch A and 21.00 on Pitch B. The Council said that the school had confirmed that in early 2023 there was an issue with he fuse box which had reset the timer when tripped. This had resulted in the sports lighting remaining operational for a period during the night.
26. Mr X brought his complaint to the Ombudsman in January 2023.

My findings

27. Planning enforcement took informal action when it spoke to the relevant Council department and directly to the school.
28. Other than a further isolated incident, the problem appeared to be resolved and the Council closed the enforcement case in April 2022.
29. The problem reoccurred a short time later.
30. The Council acknowledged the breach was continuing but other than speaking to the school and Council department, it said it could not take further action.
31. There was fault here.
32. The Council had discretionary powers regarding its decision whether to take formal enforcement action. It should have reached a clear decision whether it was expedient to take formal action rather than just dismissing that option deeming it not technically possible.
33. I cannot say whether the Council should have taken further action. That is not my decision to make. However, I consider it fault that the Council did not demonstrate that it took adequate steps leading up to its decision to take no further action.
34. This fault led to the breach of condition continuing longer than necessary, leading to further disturbance and inconvenience to Mr X.

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Agreed action

35. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mr X for not taking formal enforcement action without fully demonstrating it had considered whether it was expedient to do so.
2. Pay Mr X £200 for the avoidable distress caused by the Council’s fault, and the time and trouble it has taken him to pursue his complaint.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation. I have found fault with the Council for not taking adequate steps before reaching the decision to not take formal enforcement action.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman