Summary: Miss X complained the Council failed to take enforcement action on a temporary car park operated by her local hospital without planning permission. The Council was not at fault in the approach it took to considering Miss X’s planning enforcement complaint. The Council was at fault for delays.

The complaint

1. Miss X complained the Council has failed to take enforcement action on a temporary car park operated by her local hospital without planning permission. She said the land used to be a hospital block, which the hospital demolished to make way for the car park.
2. The car park is opposite Miss X’s home and has a detrimental impact on her outlook, residential amenity, and the enjoyment of her home. The car park is in constant use, from early in the morning until the evening, is used by heavy vehicles, and is used to store waste skips – which are an eyesore. The car park has no boundary screening because the hospital has cut down protected trees and has not installed fencing. The car park also has floodlights which shine into Miss X’s home.
3. Miss X would like the Council to put a timeframe in place for when it will complete its investigation and take action to mitigate the car park’s impact.

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The Ombudsman’s role and powers

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. 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

6. As part of the investigation, I considered the complaint and the information Miss X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Miss 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

9. 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.
10. 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.
11. 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)

Time limits for enforcement

12. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• There was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach.
• There was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach.
• For any other breach, no enforcement action may be taken after 10 years from the date of the breach.

The Council’s planning enforcement policy

13. The Council’s approach to enforcement is that it will only use its formal powers when it is expedient to do so. In deciding this, the Council will consider whether the breach causes unacceptable harm to public amenity. It will also consider whether land or buildings merit protection in the public interest. The Council will initially try to persuade the owner to voluntarily remedy any harm caused. The Council will not take formal action over technical or trivial breaches.
14. The Council’s policy states it will update the complainant as its investigation progresses. This could be to explain a planning application is being made, that it is monitoring the situation, or that it is considering taking formal action.

What happened

15. I have summarised below some key events leading to Miss X’s complaint. This is not intended to be a detailed account of what took place.
16. Miss X contacted the Council’s planning enforcement department in September 2021. She said her local hospital built a temporary car park in 2017 without permission. She said the car park was in constant daily use and lit up by floodlights. Miss X also mentioned unsightly skips, a large grit pile, portacabin, and large vehicles manoeuvring.
17. The Council assigned a case officer in October 2021. The case officer sought advice from the Council’s development manager.
18. The Council’s development manager looked into the issue in January 2022. They considered the site used to have nurses’ accommodation, which the hospital demolished. It appeared there was now a hard surfaced area used for parking.
19. The case officer contacted the hospital for details about the site and planning history.
20. The case officer chased the hospital in March 2022, threatening enforcement action.
21. A planning consultant acting for the hospital responded. They said there had been a hard surfaced area for car parking since 2003. The car park is used by hospital staff and, creation of hard surfaces for hospitals was permitted development. They said, based on the time the car park has been in place, the hospital was immune from enforcement. The consultant said the hospital demolished the old nurses’ accommodation in January 2017. They said it was regrettable the hospital did not seek prior approval, but it was too late for enforcement action.
22. The consultant said the hospital installed floodlights in February 2018 and the period for enforcement action had passed. They also said the floodlights are on a timer and go off at 8pm, but the hospital would review their positioning. The consultant said the parking which takes place, and the skips, are related to hospital maintenance and service, so would not need planning permission. They said the hospital uses the green portacabin for storing hospital equipment and materials, so this would not need planning permission.
23. After consulting the development manager, the case officer contacted the hospital’s consultant in April 2022. They said the Council considered the relevant enforcement period was 10 years, because there had been a material change of use of the land. They also said the Council did not consider the car park was permitted development, because it exceeds 50 square metres.
24. The hospital’s consultant disagreed with the Council’s interpretation. However, they said the hospital will review the planting along the south boundary to provide natural screening. It will also tidy up the car park, install fencing with screening around the grit pile, and remove the offending floodlight.
25. In June 2022, the NHS gave the Council a copy of advice it received from a barrister. The advice concluded there was no material change of use, and the relevant enforcement period was four years, which had expired, so the Council could not take action over the unauthorised works.
26. Miss X made a formal complaint in July 2022. She said she first raised concerns with the hospital about a temporary car park over five years ago. She contacted the planning department in August 2021, but the issues remain unresolved.
27. The Council told Miss X it had ongoing discussions with the hospital, who do not believe there have been any planning breaches and provided legal advice on this. The Council said it was reviewing the legal advice before updating Miss X.
28. Miss X asked to escalate her complaint to stage two in October 2022 because the Council had still not addressed her concerns.
29. The Council sent its stage two response in November 2022. It said it understood the issues were taking time to resolve, but it was in contact with the hospital and was awaiting legal advice. It could not provide a timeframe for this. The Council said the case officer exchanged many emails with Miss X, and the Council’s development manager also spoke with her.
30. On 7 November 2022, Miss X told the Council the hospital felled several trees directly opposite her home in 2018 or 2019. She said this caused loss of privacy.
31. The Council gave Miss X a copy of the planning consent for the hospital to fell the trees. It said the hospital felled the trees due to their poor condition and no replacement planting was needed.
32. Miss X said the Council had not addressed her concerns or fully investigated the issues. She said it was not acceptable to wait sixteen months with no conclusion or deadline. She asked why the hospital removed so many trees, why there was no need for replacements, and why the Council did not consult residents, as there was a resulting loss of privacy.
33. The Council sent its final complaint response in December 2022. It accepted it was taking time to resolve the issues, due to their complexity and the need for legal advice. It said it would provide an update when it could do so. It said it could not give a timescale. The Council said it was satisfied its stage two response was reasonable.
34. The Council received its own legal advice from a barrister in March 2023.

My investigation

35. The Council told me the hospital did not notify it before demolishing the old nurses’ accommodation block. However, it did put in a building control application in 2016. The Council was not made aware of this, but has now put a process in place to make sure it is in future.
36. The Council said it is investigating the use of land as a car park and associated operational development/engineering works. It is not being considered as a temporary change of use.
37. The Council said, due to staffing issues caused by the COVID-19 pandemic, there have been delays and it has not yet finished its investigation. It said it picked up Miss X’s complaint within twelve working days.
38. The Council has taken legal advice and will update Miss X accordingly about the result and what action it may take.

Analysis

39. Miss X first became aware of the hospital car park in 2017 when the hospital demolished a nurses’ block. It appears the hospital told Miss X it was a temporary car park for contractors.
40. When the Council investigated Miss X’s complaint in 2021, it took it some time to work out what happened at the site. The Council has no record the hospital notified it about the demolition or the creation of a car park. The Council’s view was the hospital needed planning permission to use the land of the former nurses’ accommodation as a car park.
41. Enforcement action is discretionary, and I do not find the Council at fault in the approach it took. It liaised with the hospital, considered its arguments and the legal position, and took its own legal advice. Meanwhile, the hospital offered to carry out works to lessen the impact on public amenity. It is ultimately for the Council to decide whether it can take formal enforcement action, and whether it is satisfied with the remedial work the hospital offered to take.
42. However, I did find the Council at fault for delays and allowing the case to drift. It took four months before the Council contacted the hospital about the issues. That was too long. I also found there was a delay after the Council received the hospital’s legal advice. It took nine months before the Council obtained its own advice. Again, that was too long.
43. While the Council updated Miss X in October and December 2021, and in January and February 2022, it failed to update her afterwards. This caused frustration and led Miss X to make a formal complaint.
44. Turning to the complaint about the TPO for the hospital site, I found the Council gave a contractor permission to fell some trees covered by the TPO in July 2018. The TPO itself covered a large number of trees and the Council only permitted a relatively small number of them to be cut.
45. This decision was made several years ago, and there are only limited records available. On balance, the records I have seen suggest the Council gave the hospital’s contractor permission to cut down protected trees near Ms X’s home.
46. I am unaware if the Council considered whether local people may be affected or may wish to comment. While Government guidance states councils should consider this possibility, the guidance does not say councils are required to publicise applications to carry out work on protected trees. I therefore do not find the Council at fault.

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Agreed action

47. Within four weeks of my final decision, the Council will:
• Write to Miss X apologising for the delays in its planning enforcement investigation, and acknowledge the frustration this caused.
• Commit to a timescale in which it will review the legal advice and reach a decision on whether to take enforcement action.
• Follow up with the hospital over the informal remedial action it proposed, providing confirmation to Miss X of the work undertaken.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation. The Council was not at fault in the approach it took to considering Miss X’s planning enforcement complaint. However, the Council was at fault for delays.

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Investigator's decision on behalf of the Ombudsman