Summary: Mr X complained about the Council’s decision not to take enforcement action in respect of his neighbour’s development. He also says the Council took too long to investigate the matter. We have upheld the complaint because there was excessive delay and poor communication with Mr X. We recommend the Council should apologise to Mr X and share this decision with officers. We did not find any additional fault with its assessment of the development and the decision not to take enforcement action.

The complaint

1. Mr X complains about the Council’s assessment of a breach of planning control in respect of his neighbour’s radio. He says the Council, when making its decision not to take enforcement action:

• took account of incorrect information provided by the owner of the mast;
• misinterpreted the original planning permission; and
• took too long to deal with the matter.

2. Mr X says the mast significantly affects his visual outlook and enjoyment of his home. He was also extremely frustrated by the time the Council took to respond to his initial contact.

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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 question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (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

• considered the complaint, documents and photographs provided by Mr X;
• made enquiries of the Council and considered its response;
• considered the relevant law and statutory guidance;
• considered the Council’s Enforcement Policy:
• spoken to Mr X; and
• sent my draft decision to both parties and invited comments on it. Any comments received were considered before making my final decision.

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What I found

Relevant law and policy

Planning enforcement

6. 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.
7. 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/authorities 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/authorities to resolve issues through negotiation and dialogue with developers.
8. 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)

The Council’s enforcement policy

9. The explains the Council takes a “risk based” approach to enforcement to ensure resources are targeted to those areas that need them most. It states no regulatory action should take place without a reason.
10. Where a breach of planning control is reported, the Council will investigate. If there has been a breach, the Council may take formal action if it is in the public interest to do so.

What happened

11. In 1999, the Council granted planning permission to Mr X’s neighbour, Mr P, to retain an 18 metre-high radio mast. This planning permission included several conditions.

• During daylight hours it can only be extended to its maximum height on no more than 20 days for hobby use per year.
• At all other times it should be fully retracted and stored in either a vertical or horizontal position.
• Mr P must keep a log of when and why it is used to its maximum height.

12. In October 2021, Mr X reported a breach of the 1999 planning permission. He told the Council:

• an array of additional aerials had been attached to the top of the mast. These increased the overall height of the structure by between three and six metres; and
• these additions meant the mast could not be fully retracted.

13. This report was promptly acknowledged. This letter explained investigations may take longer than usual due to a Covid-19 related backlog and prioritising frontline services.
14. The case records show an enforcement officer (Officer B) carried out a roadside assessment in November 2021 but decided not to take further action as the situation on site had not changed since a previous enforcement investigation. Mr X was not told about this.
15. Mindful of what he had been told in the acknowledgment letter, Mr X waited until February 2022 before making further enquires. He wrote to both his local councillor (Councillor D) and the enforcement team.
16. Officer B updated Councillor D about her roadside assessment. She said she would see if there were any changes when she was next in the area.
17. Several further roadside assessments took place June 2022. They showed the mast appeared to be extended for longer than it should have been. Officer B contacted Mr P to discuss this. She also asked to have sight of the log book.
18. In September 2022, Officer B and a colleague met with Mr P at his home. Mr P said the mast had not been fully extended for over 20 years. He also explained the mast was faulty and was not capable of being fully extended in any event.
19. There was some delay in meeting with Mr P, but I am satisfied that due to Mr P’s availability, rather than any fault by the Council.
20. The Council wrote and told Mr X no further action would be taken.
21. Mr X complained to the Council about this decision, failure to assess the mast from his property and the time it had taken since he first reported the matter.
22. In response, the Council said made the following points.

• Investigations had to be prioritised, but nevertheless apologised for the delay.
• It was not necessary to assess the mast from Mr X’s property, nor was it obliged to do so.
• The Council considered the mast “broadly accords” with the 1999 planning permission. It explained the rationale for this decision.
• It was satisfied there was no breach of planning control.
• Even if there was a breach, the Council would not take any further action because it was not expedient to do so.

23. Dissatisfied with this outcome, Mr X brought his complaint to the Ombudsman.

Analysis

24. At the outset, it is important to note, the Ombudsman cannot intervene in discretionary decisions or professional judgments made by officers where there has been no fault in the administrative process, even if we may have made a different decision on the same facts.

Enforcement decision

25. The records show that Office B carried out several roadside assessments in mid-2022 and decided there may have been a breach of a planning condition as the mast appeared to be extended more than it was allowed. She responded to this concern by meeting with Mr P with a colleague, viewing the aerial on site and reviewing Mr P’s logbook.
26. She then explained the Council’s overall position to Mr X in writing.
27. The case records I have seen evidence the Council reached its decision having taken into account the relevant factors, including the original planning consent and the situation on site. I agree it was not obliged to view the mast from Mr X’s property.
28. The Council gave Mr X clear reasons for its decision. It also provided Mr X with a detailed response to his specific concerns during its complaint handling.
29. I acknowledge Mr X disagrees with the Council’s approach and interprets the law and 1999 planning permission differently. He also says the Council has accepted untrue information from Mr P at face value. Again, this a matter of differing interpretations.
30. However, I cannot find fault simply because Mr X disagrees with the Council’s view. I can only find fault where the Council has not followed a proper decision-making process. I am satisfied it did so in this case.

Delay

31. The timeline above shows the Council took nearly a year to provide Mr X with a response to his initial complaint. While I acknowledge the Council’s resource issues referred to in its initial acknowledgement letter, in the event of such a long delay being unavoidable, the Council should have written to Mr X to explain the status of its investigation. In my view Officer B should have contacted Mr X in November 2021 when she carried out her first assessment and decided no action would be taken at that time.
32. Mr X did not receive any update from the enforcement team between October 2021 and September 2022, apart from an acknowledgement the matter was awaiting action in May 2022. This lack of contact, together with overall the time taken to reach the decision, is evidence of fault. I am satisfied this caused frustration to Mr X because he believed he was being ignored. This frustration is an injustice that requires a remedy (below).

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Agreed action

33. The Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise in writing to Mr X for its delay and lack of communication.
2. Share this decision statement with the Enforcement Team to remind them of the importance of keeping people properly updated about the status of a case.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have upheld Mr X’s complaint for the reasons I have explained in this decision statement.

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Investigator's decision on behalf of the Ombudsman