Summary: Mr X complains about how the Council has dealt with a breach of planning control. He contacted the Council about the unauthorised business activity near his home but says enforcement action was not taken until three years later. We have found there was delay by the Council in deciding a planning application. We have also found some fault with the Council’s communication. The Council has agreed to apologise and make a symbolic payment in recognition of the distress caused to Mr X.

The complaint

1. Mr X complains about how the Council has dealt with a breach of planning control. He contacted the Council about the unauthorised business activity near his home about three years ago but says enforcement action was not taken, until January 2023.
2. Mr X says because of the Council’s faults, he has suffered from unacceptable activity near his property which has a harmful impact on his residential amenity and his wellbeing. Mr X has spent unnecessary time and trouble in trying to resolve the matter.

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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. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 considered the complaint and the information provided by Mr X. I made enquiries to the Council and considered its response. I provided Mr X with a copy of my enquiry letter to the Council and invited him to contact me to discuss the complaint if he wished.
7. Mr X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Enforcement action

8. 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.
9. 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)

10. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
11. 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.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.

The Council’s enforcement policy

12. The Council’s Local Enforcement Plan sets out the Council’s approach to enforcement to ensure public confidence in the planning system. The policy says, enforcement action is a discretionary power and will be proportionate to the matter considered. The Council will have regard to the expediency of taking enforcement action in each case, and exercise discretion accordingly. Therefore, the enforcement team may resolve matters formally, informally, or decide not to take action even if a breach of planning control exists.
13. The policy says priority will be given to “unauthorised change of use of agricultural land and development in the countryside”.
14. The policy sets out the Council’s enforcement process, including carrying out a preliminary investigation within 10 working days of the receipt of the initial complaint; contact the complainant within 15 working days to advise of its findings and state how we intend to proceed; and the investigation will be confined to planning issues only. The policy explains that it is more difficult to meet these targets in busy periods and some enforcement matters take significant periods to resolve.
15. The policy says, the Council will contact the complainant of the investigation if it results in receipt of a planning application, service of a notice or closure of the case.

What happened

16. Mr X’s property is situated to the north of an agricultural area (the site) which has authorised agricultural use, except for building 1 which is approved for storage and distribution with no conditions imposed.
17. There has been a great deal of correspondence between Mr X and the Council in this case. I have set out the key events as it is not necessary for me to detail everything that happened here.
18. In June 2019, the Council received a planning application proposing a change of use of an agricultural building to storage and distribution. The application was made by the site owner, Mr C.
19. On 23 August, Mr X contacted the Council and objected to the application. He said it was a 24/7 operation which had commenced about four months ago and was causing a disturbance to him and his immediate neighbours.
20. On 28 August, a planning officer (Officer 1) and planning enforcement officer (Officer 2) carried out a site visit in respect of the application. The Officers reported that building 1 was being used by a logistics company. Following the visit, the Council wrote to Mr C requesting further information.
21. On 6 September, Mr X formally objected to the application and made additional comments about the entrance being unsuitable for heavy goods vehicles (HGVs).
22. On 25 November, the Council refused the planning application.
23. On 3 December, the Council opened an enforcement case and advised Mr X. The next day Officer 2 spoke to Mr X who said he had no planning concerns but was concerned about noise from the site.
24. On 10 January 2020, Mr X sent a letter to the Council and raised concerns about damage to his lawn, speed of vehicles, a gate being left open, continuous use of buildings, shouting, engines revving, forklifts bleeping, the shining of head lights, unauthorised storage, rubbish and HGVs blocking the road. Officer 2 contacted Mr X and told him the Council could not address the issues about the manner of driving, times and noise as there was no planning conditions that related to them. Officer 2 explained the activity at building 1 being used for storage and distribution was authorised. The Council’s environmental health team agreed to provide Mr X with noise monitoring equipment.
25. The following week Mr X complained to the Council. This was registered as a stage one complaint. Mr X repeated his previous concerns and said the activities at the site were not agricultural and were causing nuisance, danger and were having an adverse impact on his quality of life and that of his neighbours.
26. On 21 January, the Council responded to Mr X’s complaint. It said Officer 2 was aware of Mr X’s concerns and was carrying out an investigation. The Council explained that it could not apply conditions to planning decisions that had already been made and could only enforce where an existing condition had been breached, a material change of use has taken place, or other unauthorised development had taken place. The Council responded to Mr X’s specific issues as follows:

• damage to lawns caused by vehicles and rubbish being blown from the site. The Council said these were private matters and not something planning enforcement could pursue;
• vehicles speeding down the drive. The Council said there was no planning condition relating to this issue on the site and was therefore a private matter and not something planning enforcement could pursue;
• security gates being left open for HGV access. The Council said there was no planning condition relating to when the gates should be open or closed and therefore this was a private matter and not something planning enforcement could pursue;
• 24/7 operation with associated noise. The Council said there was no planning condition relating to hours of use and its Environmental Health Team was investigating the issues raised.
• office positioned near the boundary and Mr X’s dog kennels; unauthorised storage taking place at the bottom of the yard and the activities are not agricultural. The Council said these issues were being investigated;
• HGVs blocking the road outside. The Council said there was no planning condition relating to HGVs around the site and if vehicles were causing an obstruction to the public highway, it should be reported to the police;
• kebab van being stored on the site arrives after 10:30pm. The Council said there was no planning conditions relating to hours of use and therefore it could not control when this came on site, and the storage of the van would not constitute a change of use;
• anti-social activities on the site. The Council said this should be reported to the police; and
• the operation should be on an industrial estate. The Council said it was unable to respond to Mr X’s statement because the site was still under investigation and the recently refused planning application was subject to an appeal.

27. The Council told Mr X that Officer 2 would contact him once the investigations had been completed.
28. On 2 September, the Council received a planning application proposing a change of use of site 1 as follows:

• existing open-sided agricultural shed from agriculture to mixed use of agriculture and storage and distribution;
• an existing agricultural building from agriculture to mixed use of agriculture and storage and distribution; and
• (part retrospective) an area of hardstanding from open agriculture to open storage of contractor’s plant and machinery.

29. Officer 1 notified Mr X about the planning application and advised him on how he could make comments.
30. On 22 September, the Council received a letter from Mr X’s MP raising concerns on his behalf. Two days later, the Officers carried out a site visit and met with Mr C and his agent.
31. On 7 October the Council responded to Mr X’s MP including details already provided in its stage one response. In addition, the Council said:

• most of the site had agricultural use and a planning application for change of use of a farm building to storage, was approved in May 2004. The decision notice did not include planning conditions relating to hours of use or noise. The Council explained the activities relating to this part of the site, which made up a majority of the issues reported by Mr X, could not be pursued by planning enforcement.
• licensing concerns should be addressed to the licensing team as this was not a planning matter;
• concerns relating to health and safety, storage of hazardous products and toilet facilities on site should be reported to the Health and Safety Executive; and
• concerns relating to whether workers on site are legitimate should be reported to Immigration Enforcement;

32. On 16 October, the planning application was withdrawn by Mr C. The Council subsequently wrote to Mr X and explaining it had been withdrawn so that a new application could be submitted to cover the whole site. This was so as to not leave an area which would not be subject to any conditions. The Council said it would continue to monitor the situation and if a new application was not submitted in a timely manner, or submitted and then refused, it would consider whether enforcement action was necessary.
33. On 5 November, Mr X wrote to the Council and said it had referred to unauthorised usage of the site but was still choosing not to take enforcement action. The Council responded to Mr X and explained that it continued to monitor and review the case, however enforcement action was discretionary.
34. On 12 January 2021, the Council wrote to Mr X and said it would review the case at the end of the month. If a planning application had not been submitted, it would consider whether enforcement action was necessary.
35. Two days later Mr X wrote to the Council again and reported increasing levels of danger and nuisance and damage to the entrance road past his property. The Council registered this as a stage two complaint.
36. On 22 January, the Council responded to Mr X’s stage two complaint. It said “In this case it would be difficult to ascertain whether the issues that you have reported are associated with the part of the site where the storage use is authorised, with no conditions restricting the hours, or part of the site where storage is unauthorised. Therefore, the submission of an application to try and regularise the whole of the site, with, should it be approved, conditions to control the use moving forward, would enable us to deal with any potential breaches as they arise”.
37. On 25 January, the Council validated a new planning application received for the site. Officer 1 notified Mr X about the planning application and advised him on how he could make comments.
38. On 29 January, the Council told Mr X that it had considered and responded to his complaint. The Council signposted Mr X to the Ombudsman.
39. On 5 February, the Council responded to Mr X’s MP and said the enforcement case was on hold pending the outcome of the new application. The Council said it was aware that Mr X was dissatisfied with the Council’s approach and whilst it was obligated to investigate breaches in planning control, the decision whether to take enforcement action and the timing of such action was discretionary.
40. On 16 March, Mr X contacted the Council again and raised a complaint about the time taken to determine the planning application. The Council did not respond.
41. Between March 2021 and September 2022, Mr X sent 47 letters to the Council about activities at the site, the impact on his quality of life, delay in determining the planning application and alleged favourable treatment towards Mr C. The Council did not respond to these letters.
42. On 29 September the Council responded to Mr X’s complaint at stage one. This explained the process the Council had followed in this case.
43. On 26 October, the Council responded to Mr X’s complaint at stage two. It confirmed that enforcement action would not be taken while the planning application was being considered and said the applicant was not being given preferential treatment. The Council said a decision on the application was due to be made in the next week.
44. On 1 November, the Council refused the planning application. Mr X contacted the Council and said the enforcement team should take immediate action to remove the applicant and others trading without planning permission from the site.
45. On 7 November, Officer 1 wrote to Mr X and explained the site would be reviewed from a planning enforcement perspective. The Officer acknowledged that consideration of the application had been a lengthy process and explained going forward it would need to undertake a full assessment of the current situation on the site. This would include a site visit and obtaining further information from Mr C and the businesses operating on the site.
46. Two days later the Council carried out a site visit, spoke to relevant parties and took photographs of the site.
47. On 18 November the Council served a Planning Contravention Notice (PCN) to the relevant parties connected to the site, which they had until December to respond. The notice stated there had been a material change of use to mixed use compromising storage and distribution and builders yard, without planning permission. The Council updated Mr X.
48. On 21 November and 23 November, Mr X complained about failures of the planning enforcement team over the last three years. He said the PCN should have been issued sooner. The Council signposted Mr X to the Ombudsman.
49. In early December the Council received responses to the PCN.
50. On 22 December, the Council responded to a letter from Mr X. It said it was reviewing the responses it had received to the PCN and would provide a further update by the end of January 2023.
51. On 19 January 2023, the Council served an enforcement notice regarding unauthorised use of the site. The Council informed Mr X and said the notice would come into effect on 20 February. The time for compliance with the notice was six months from that date. If the notice was appealed the requirement to comply with the notice would be placed on hold until the Planning Inspectorate issued a decision. The Council said that there was no further action it could take until either until the Inspectorate made a decision, if the notice was appealed, or after 20 August.
52. Mr X bought his complaint to the Ombudsman.

Analysis

53. I have exercised discretion in investigating Mr X’s complaint back to August 2019 due to the time taken by the Council to complete its consideration of enforcement action.
54. The Ombudsman is not an appeal body. It is not the Ombudsman’s role to decide whether or when the Council should take enforcement action; that is the Council’s job. Our role is to review the process by which decisions are made, and where we find fault, to determine whether a significant injustice was caused to the individual complainant.
55. As stated in paragraph 10, 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 the right thing to do, (that it is expedient).
56. Mr X’s concerns were first bought to the attention of the Council in August 2019 when he objected to a planning application and raised an alleged planning breach.
57. There have been three planning applications on this site. The Council refused the first planning permission in November 2019, and opened an enforcement case the following month. The planning agent submitted a further application in September 2020, seeking a change of use of the buildings and land but excluded building 1. Following a site visit the application was withdrawn and it was agreed the agent would submit a new application to include building 1. This is not unusual practice and there was no fault by the Council taking this approach, to regularise the ongoing use of the site.
58. The agent did not submit a new application until 25 January 2021, and I have not seen evidence from the Council of any action it took during this time to progress matters. The application took nine months to be decided. The law says that planning applications should take no more than 13 weeks to be decided.
59. The Council has not explained the reason for this delay. I have been provided with copies of the Council’s case records. I acknowledge this was not a straightforward case for the Council to resolve as the use of the site presented complexities. The purpose of requesting building 1 to be included in the planning application was to ensure the whole site, subject to planning permission, could be controlled by planning conditions rather than having building 1 unconditioned as per the earlier permission in May 2014.
60. However, even taking the complexity of the site, deciding the application took far longer than the maximum 13 weeks allowed. This delay meant that enforcement action was put on hold until a decision had been reached. This was a decision the Council was entitled to make, as enforcement action is discretionary. However, the delay in deciding the planning application is fault.
61. I must now consider what personal injustice to Mr X, if any, arose from this fault.
62. Having reviewed the relevant chronology, correspondence between Mr X, his MP and the Council and case records, I am satisfied the Council explained that a number of the issues raised by Mr X could not be addressed through enforcement action. This is because there were no planning conditions restricting the hours of use, types of vehicles or noise emissions on the existing planning permission for building 1. The Council explained this to Mr X and his MP on several occasions. Therefore, the outcome to these issues would have been no different even if the application had been decided sooner.
63. However, on balance, had the Council decided the application without delay, the enforcement process, starting with issuing the PCN, would have happened sooner. I acknowledge Mr X’s distress in the form of uncertainty and frustration from having to wait so long for the Council to decide the final planning application and start the enforcement process. The Council was aware the matter had been ongoing for over three years.
64. I am satisfied the Council kept Mr X informed of its actions in this case until March 2021. I acknowledge the Council had advised Mr X that he had completed the Council’s complaint process and signposted him to the Ombudsman, however I have seen no evidence the Council told Mr X that it would not be responding to any ongoing communication. I appreciate that it would not be feasible for the Council to respond to all of Mr X’s letters between March 2021 and September 2022, however, to not respond at all , is fault. The Council also did not respond to Mr X’s complaint for six months. These faults would have caused Mr X significant uncertainty and frustration.

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Agreed action

65. Within four weeks of my final decision the Council will:
1. apologise to Mr X for the faults identified in this statement; and
2. pay Mr X £400 to acknowledge the distress caused by the faults. This is in line with the Ombudsman’s guidance on remedies.
66. The Council should provide us with evidence it has complied with the above actions.

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Final decision

67. I have found fault by the Council causing an injustice to Mr X. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman