Summary: Mr X complained the Council failed to take enforcement action against an unlawful change of use on land near his home. We did not investigate this complaint further, because the Council’s enforcement file remains open, and the planning process is ongoing. Mr X may come back to us if he remains dissatisfied once the planning process has run its course.

The complaint

1. Mr X complained the Council failed to take enforcement action after he alleged an unlawful change of use of land near his home.
2. Mr X said that his amenity is affected by the use of the site and that the land is being contaminated by the activities happening on it.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• we cannot show that any fault has caused injustice to the person who complained, or
• further investigation now, would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint. I discussed the complaint with a development control manager.
5. I gave Mr X and the Council an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

6. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ uses, which means a use that is ‘of its own kind’ or ‘unique’.
7. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide. Where a change of use occurs without planning permission or is unlawful in some other way, councils may take enforcement action.
8. 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.
9. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
10. 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.
11. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
12. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
13. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.

What happened

14. There was an open space on land near Mr X’s home. About a year ago, Mr X noticed development works on the land. The land was cleared of scrub, levelled and a layer of building sand and gravel was spread over it. Mr X said that shortly after this happened, a high chain link fence was put around the site and ‘scrap’ cars were parked on it.
15. Mr X said that since this happened, the site operators have:
• syphoned fuel and lubricants from the vehicles, sometimes spilling these liquids on the land;
• removed parts from vehicles to sell them to visiting customers; and
• arrived late at night to unload vehicles to store them on the site.
16. Mr X said he first reported what was happening to the Council’s planning enforcement officers between the end of May and early part of June last year.
17. The Council wrote to Mr X at the end of August. It explained there had been delays because of demands on its service and that the case had been allocated to an officer.
18. Mr X said that he heard no more and so complained in October. The Council said that due to the number of cases and pressure on resources, it had been unable to progress his complaint. It said that the enforcement officer had left its employment and the case had been allocated to another officer.
19. Mr X said he invited the Council to view video evidence which showed the activities he alleged taking place, but the Council did not respond..
20. I spoke to a development control manager responsible for the enforcement service. The manager acknowledged there had been delay in handling this case and that he is prepared to apologise to Mr X and ensure there are no further undue delays. The manager said that the delay had been caused by staffing problems and difficulties in determining ownership of the land.
21. The manager said the Council now knew who the landowners were and were liaising with a planning agent, who has said they intend to submit a planning application very soon. The manager said that if no application is received, the Council will be ready to begin the process to serve an enforcement notice.
22. I read the Council’s planning enforcement policy. The policy separates complaints into categories depending on the risk posed to the public. Action times vary between categories, with most urgent cases acknowledged, investigated and assessed within five working days. For most cases where this is limited impact caused by a breach of control, the Council should send acknowledgments within five working days, investigate within 20-30 working days, and make assessments within working 35 days. The policy allows more time if there is no or little harm caused by the breach.

My findings

23. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
24. Before we begin or continue our investigations, we consider two linked questions, which are:
• is it likely there was fault?
• is it likely any fault caused a significant injustice?
25. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
26. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
27. I should end my investigation now, but Mr X can come back to the Ombudsman if he remains dissatisfied at the end of the planning process. My reasons are as follows:
• The Council publishes service standards in its enforcement policy, and from the evidence I have seen, it has not met them. Because of this I consider it likely that further investigation would result in a finding of service failure causing delay. I expect the period of delay is likely to be up to three months of inactivity
• Where we find evidence of service failure, we need to determine whether it caused a significant injustice to the complainant. At the moment, the planning process is ongoing. The Council has an enforcement file open and expect to receive a planning application soon. Once the planning status of the site has been determined, and/or once any subsequent planning enforcement action has run its course, we will know the outcome and be able to assess how Mr X was affected.
28. For the moment, we should end our investigation and allow the planning process to continue.

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Final decision

29. I ended my investigation because, although it is likely there was service failure causing delay, we cannot yet determine the extent it caused an injustice to the complainant. Mr X may come back to us once the planning enforcement process has run its course.

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Investigator's decision on behalf of the Ombudsman