Summary: Mr X complained the Council failed to take appropriate enforcement action against alleged breaches of planning control regarding the change of use of a business premises close to his home. Mr X says the users of the site are causing harm to the surrounding area and are negatively impacting his own property. We found the Council to be at fault with regard to its record keeping and incurring delays in its processes. The Council has agreed a remedy to address the injustice identified.

The complaint

1. Mr X complained the Council failed to take appropriate enforcement action against alleged breaches of planning control regarding the change of use of a business premises close to his home. Mr X says Council officers visited the site but have taken no meaningful action for several months. He says the users of the site are causing harm to the surrounding area and are negatively impacting his own property. Mr X would like the Council to serve a planning contravention notice to the users of the site.

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What I have and have not investigated

2. Mr X’s complaint dates back to 2019 when he says he first reported the alleged planning breaches. I have investigated the complaint dating back to May 2021. This is because although the complaint is late, Mr X brought his complaint to us within 12 months of the Council’s final complaint response. I have exercised discretion to investigate matters dating back 12 months before Mr X made his complaint to the Council. As a result, my investigation looks at events dating back to May 2021.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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. I discussed the complaint with Mr X’s representative, Mr Y. I have considered the information provided by Mr X and Mr Y.
7. I made enquiries to the Council and considered the information it provided.
8. Mr X, Mr Y 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

Enforcement action

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. 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)

11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. Councils may decide to take informal action or not to act at all. 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.
12. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
13. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. 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.

The Council’s planning enforcement and monitoring plan

14. The Council’s planning enforcement and monitoring plan (the plan) sets out how the Council undertakes investigations of alleged planning breaches. It says, “Where a breach of planning control has occurred, we will consider the planning merits of the development being undertaken, taking into account national and local planning policies, and will decide on the most appropriate of action”. (Buckinghamshire Council’s Planning Enforcement and Monitoring Plan, 6.2)
15. The plan also says: “Negotiations can often lead to a quicker resolution and to a better overall outcome. Where appropriate we will seek to negotiate with the owner/occupier and will consider options to address the planning harm resulting from the breach. The negotiation process may involve works being undertaken to remedy breaches of planning control to bring a development in line with permitted development rights or involve the submission of a retrospective planning application”. (Buckinghamshire Council’s Planning Enforcement and Monitoring Plan, 7.1.4)
16. The plan also says: “There is no statutory requirement for the council to take enforcement action against alleged breaches of planning control. Enforcement action is based on planning merit which requires a planning judgement as to whether or not formal action is appropriate. In some cases, the council may decide that enforcement action will not be taken and that an alternative approach is more appropriate (for example a retrospective application, further negotiation, no further action etc)”. (Buckinghamshire Council’s Planning Enforcement and Monitoring Plan, 11.1.1)
17. The plan goes on to say: “When assessing whether formal action should be taken, the council will ensure that the action is reasonable, proportionate and is in the public interest in order to achieve a satisfactory result. The council will consider what the effect of formal action will be and if it will have a meaningful outcome. The term expedient or expediency in planning enforcement relates to the ‘planning balance’ for taking action, not convenience”. (Buckinghamshire Council’s Planning Enforcement and Monitoring Plan, 11.1.2)

Principles of good administrative practice

18. 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

19. Mr X contacted the Council in 2019 to report an alleged change of use of land at a business premises close to his home. Mr X reported that a separate, different type of business was using part of the land at the site.
20. The Council opened an enforcement case following receipt of further reports from Mr X about this matter in 2020.
21. In March 2020, the Council told Mr X that following a site visit, it had identified two additional, separate businesses at the site. The Council carried out two further site visits in 2020.

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. Mr X emailed the Council on 22 July 2021 and said one of the companies operating from the site had installed some very large pieces of equipment. Mr X also said the company’s operations were causing a noise nuisance and the lorries coming and going from the site were breaking up the road and were dangerous to the public.
24. On 11 August 2021, the Council told Mr X it had tried to engage with the site owners who had previously advised they would submit a planning application for a change of use of the land. The Council told Mr X the application was not forthcoming and said it would “be moving forward” with enforcement action. The Council said it would keep Mr X updated with any relevant information as the matter progressed.
25. In January 2022, an agent acting on behalf of the site owners contacted the Council and discussed the use of the site, the concerns about highway safety and the impact on residential properties. The agent emailed the Council and confirmed the site owners had instructed them to carry out work to regularise the planning issues. The agent said they were aware the enforcement officer dealing with the case was due to leave the authority, but said the Council had agreed to pass their contact details onto the new enforcement officer.

Mr X’s complaint

26. On 24 May 2022, Mr X complained to the Council, via his representative, Mr Y, about a lack of enforcement action. Mr X complained that he had told the Council about the alleged breaches in 2019 and 2020, and although the Council had visited the site, it had not taken any action for several months. Mr X asked the Council to serve Planning Contravention Notices to require the site owners and businesses to provide information to enable the Council to establish whether a planning breach had occurred.
27. The Council responded on 23 June 2022. It said when the Council logged the case in February 2020, the Council was experiencing several issues which impacted its service, including being short staffed and an increase in enquiries. It said the impact of the COVID-19 pandemic also meant that site visits were suspended. The Council acknowledged it was not able to provide the level of service it would have liked. The Council said it had contacted the site owner’s agent and would progress the case as a matter of urgency. The Council upheld Mr X’s complaint due to the delays incurred.
28. The Council liaised with the site owner’s agent from June 2022 onwards regarding the proposed planning application and carried out a further site visit in August 2022. Following the visit, the Council continued its discussions with the agent to check progress regarding the application. In November 2022, the agent told the Council they were undertaking several surveys prior to submitting the application.
29. Around this time, Mr X submitted a further complaint to the Council as he considered the Council was not taking appropriate enforcement action.
30. In January 2023, the agent told the Council they were continuing to work towards submitting the application and acknowledged the process had taken longer than expected.
31. On 24 January 2023, the Council provided its stage two complaint response. It referred to the Council’s planning enforcement and monitoring plan and said enforcement action will be taken where it is expedient and proportionate to do so, and that any action taken is at the Council’s discretion. It acknowledged Mr X’s frustration regarding the reported issues, but said the Council seeks to resolve matters through negotiation where possible. The Council said it considered it was acceptable that officers were not proposing enforcement action at that time as they had invited a planning application in the hopes this would resolve the breach. The Council said it was in contact with the owners of the site who were working towards submitting a planning application. It said it would consider the expediency of taking further action if the application was not forthcoming.
32. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.

What happened next

33. In April 2023, the Council validated a planning application relating to the site. The application has not yet received a decision.

Analysis

34. Mr X complains the Council has not taken appropriate enforcement action regarding the alleged breaches of planning control.
35. The Council says it raised an enforcement case upon receipt of the reports of alleged planning control breaches and contacted the site owner. It says it carried out site visits and subsequently received a planning application from the owner in the hopes this will resolve the breach. The Council acknowledges there was a delay in the submission of the planning application but said officers were in contact with the relevant parties to move the case along.
36. As stated at paragraph 11, planning enforcement is discretionary. As a result, councils may decide to take formal/informal action or may decide not to act at all. Before taking action, councils must satisfy themselves that such action is expedient.
37. In this case, the Council decided not to pursue formal enforcement action. The Council says the site owner informed it they intended to submit an application in an attempt to regularise the change of site. As a result, the Council says its attention was turned to working with the site owner’s agent to ensure they provided all the relevant information. The Council says it held an informal case discussion on whether it was expedient to take formal enforcement action prior to the planning application being received. The Council says it received the application before it made a final decision regarding enforcement action.
38. The Council is entitled to make decisions regarding the expediency of enforcement action, and the action taken is in line with guidance and the Council's own planning enforcement and monitoring plan. On this basis, there is no fault regarding this aspect of the complaint.
39. However, while the Council is entitled to make such a decision, we would expect it to be able to demonstrate how and why it made this decision. The Council says the case officer and team leader held a meeting to discuss the expediency of formal enforcement action, and that officers have delegated authority to make decisions on enforcement matters. It says it holds no evidence of these discussions as this was not logged and no report was produced.
40. I acknowledge the Council’s explanation regarding the delegated authority of its enforcement officers. However, the lack of evidence to demonstrate how and why the Council decided not to take enforcement action is not in line with our principles of good administrative practice. As a result, the lack of records to show the rationale for the Council’s decision is fault.

Delay in progressing the enforcement case

41. This investigation looks at the period from May 2021 onwards. Mr X requested an update from the Council on 22 July 2021; the Council told Mr X on 11 August 2021 that it would move forward with enforcement action as it had not received the planning application.
42. However, I have seen no evidence to show any further action by the Council until January 2022, when the enforcement officer spoke to one of the site owners. The site owner said they had not progressed the matter and told the Council they would contact their agent to follow this up.
43. A case note from this time indicates the enforcement officer left their position shortly after this discussion. The Council’s records indicate the Council did not take any further action until June 2022, when a different enforcement officer contacted the agent, and subsequently arranged a further site visit. From this point onwards there is evidence the Council liaised with the agent regarding the application process, and this has resulted in a new application being submitted in March 2023.
44. There is a period of delay from May 2021 (the start date of the scope of this investigation) to June 2022. During this period, the Council did not take action to progress the case, despite its email to Mr X in August 2021 informing him it would be moving forward with enforcement action. (The Council is not at fault for subsequently deciding not to proceed with enforcement action, as it was entitled to make this decision; however, as previously stated, we would expect the Council to retain records to demonstrate its reasons for this decision).
45. Whilst I acknowledge the Council contacted the agent in January 2022, the records indicate this contact consisted of a telephone call, and that the Council did not follow this contact up until June 2022. On this basis, the period of delay is from May 2021 to June 2022 and I have found this delay to be fault.
46. Having identified fault, I must consider if this caused a significant injustice to Mr X. Mr Y says the impact to Mr X is that the nearby development has negatively affected the value of his property, and that the site users’ vehicle movements cause harm to the area and are a danger to road users.
47. I acknowledge Mr Y’s comments. However, the potential impact of the development on the value of Mr X’s property is not attributable to the fault identified as a result of this investigation, namely delay and a lack of robust record-keeping. The injustice to Mr X caused by the fault identified is stress and the uncertainty of how and why the Council considered it was not expedient to take formal enforcement action. The Council’s email of 11 August 2021 also raised Mr X’s expectations as it stated the Council would move forward with enforcement action, but subsequently changed its decision.

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Agreed action

48. 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. We have published new guidance regarding apologies; the Council should ensure its apology is in line with this guidance;
2. Make a payment of £350 as a symbolic payment to recognise the distress, uncertainty and raised expectations, and
3. Remind staff of our expectations as set out in our Principles of Good Administrative Practice, in particular, maintaining records to demonstrate how the Council has made its decisions.
49. The Council has also agreed to take the further following action within three months of the final decision:
1. Carry out a review of procedures to ensure reported breaches of planning control are not allowed to drift without action.
50. Following receipt of the draft decision, the Council says it has reminded staff of the expectations as set out in the Principles of Good Administrative Practice and has reviewed its process. The Council should provide us with evidence it has complied with all the above actions.

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Final decision

51. I have found the Council to be at fault with regard to its record keeping and incurring delays in its processes, and the Council has agreed to take the above action to resolve the complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman