Summary: Miss C complained about the Council’s response to her reports of breaches of planning control which she said meant she could not use and enjoy her property. We have found fault by the Council but consider the agreed action of an apology, symbolic payment and timely decisions going forward provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Miss C, complains the Council failed to respond properly to her reports of breaches of planning control at a particular site or take appropriate action.
2. Miss C says because of the Council’s fault, she has not been able to use and enjoy the property she leases at the site.

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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 significant injustice, or that could cause injustice to others in the future 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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What I have and have not investigated

6. I have investigated Miss C’s complaint that the Council failed to respond properly to her reports of breaches of planning control at a particular site or take appropriate action since March 2022.
7. I have not investigated earlier events dating back several decades as Miss C could have complained about them earlier. This is a late complaint and there is not enough reason to accept those parts of it for investigation now (please see paragraph 4 above).
8. As the matter is ongoing, I have exercised the discretion available to me to investigate events from March 2022 which is 12 months before Miss C complained to the Ombudsman.

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How I considered this complaint

9. I read the papers provided by Miss C and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Miss C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

10. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

11. 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. 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.
12. 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 September 2023, paragraph 59)
13. 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 decided 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.

14. 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.

What happened

15. The following is a summary of key events. It does not include everything that happened.
16. Miss C leases a property on a site with chalets. Many of the properties have occupancy restrictions but these vary according to the relevant planning permission. There are some properties with no planning conditions restricting occupancy.
17. Miss C contacted the Council towards the end of March 2022 about its enforcement and monitoring of planning conditions for properties at the above site. Miss C also subsequently raised separate issues including about a trailer being left behind a chalet, a parked caravan in the car park and rubbish being left on site.
18. The Council arranged a visit to the site in mid-June and subsequently provided a response to Miss C about its enforcement and monitoring of the site. Miss C sought an update on progress of any enforcement action towards the end of September when the Council offered a meeting to discuss the matter.
19. Miss C made a formal complaint to the Council in November about its failure to enforce occupancy restrictions on the site.
20. The Council completed extensive site monitoring in January 2023 which provided a snapshot of potential breaches of occupancy conditions. The Council was to consider the results of the monitoring with a review of the lawful status of properties at the site to determine an appropriate course of action.
21. The Council advised the Ombudsman in March 2023 that it had no record of Miss C’s November 2022 complaint being acknowledged or progressed through its complaints procedure. The Council provided a response to Miss C’s complaint at the end of March 2023 and apologised it was not addressed at the time due to an oversight.
22. The Council accepted it had not sought to pursue or monitor the planning conditions at the site as actively as it had historically. This was in part explained due to restrictions during COVID-19 but also due to the loss of enforcement staff. The Council explained it had recently recruited new enforcement staff. The Council noted that annual monitoring was not a requirement of the planning conditions and enforcement action was a discretionary function. However, the Council also explained it had completed a survey of the site in January 2023 and updated its information and revisited the planning history to understand the extent of current breaches of planning which was now an active enforcement investigation. The Council highlighted there were a number of units that did not have an occupancy restriction and the restriction on others was in terms of restrictions on the period of occupation not the purpose of the use ie the units did not have to be for holiday use only. The Council confirmed it was preparing a report on the options for the site as a result of its survey and enforcement investigation which may result in enforcement action and set out the possible outcomes.
23. Miss C escalated her complaint in mid-April as she remained unhappy with the Council’s response.
24. The Council provided a further detailed response to the points raised by Miss C at the start of June. The Council noted there was no current action as there was no occupancy restriction over the spring and summer months. However, there was an open enforcement investigation with various options being considered but the Council could not provide a timescale for any decision. The Council also addressed Miss C’s concerns about rubbish being dumped on the site. The Council was to consider the possibility of taking action for those areas which were visible to the public as well as working informally with relevant landowners.
25. The Council provided an email update to Miss C in August following a site visit to consider her reports about an ‘untidy site’ and the location of various caravans. The Council explained it had considered the use of its available powers under section 215 of the Town and Country Planning Act, 1990 following its visit and provided cogent reasons for its decision not to take further action. This was a decision the Council was entitled to reach.
26. In responding to my enquiries, the Council advised it had sought legal advice in relation to occupancy conditions and expected to be in a position to progress the matter in November.

My consideration

27. The Council has accepted it failed to provide a response to Miss C’s complaint made in November 2022 until it was contacted by the Ombudsman in March 2023. This is fault which I am satisfied caused Miss C frustration and inconvenience in having to raise the matter with the Ombudsman.
28. Based on the information provided, I also consider there has been delay by the Council in assessing whether there have been breaches of planning control at the site and in deciding how serious any breaches are and what action, if any, is appropriate. Given the passage of time I consider this delay constitutes fault.
29. However, it is not possible to fully assess any injustice caused to Miss C by this delay until the outcome of the Council’s enforcement investigation and any action it decides to take. It would be open to Miss C to make a fresh complaint if she remains unhappy with the outcome of the Council’s enforcement investigation in due course.
30. In the meantime, I am satisfied Miss C has suffered avoidable frustration and uncertainty during the period to date.

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Agreed action

31. The Council will take the following action to provide a suitable remedy to Miss C:
1. provide a written apology to Miss C for the delay identified in its complaint handling and planning enforcement investigation within one month of my final decision;
2. make a symbolic payment of £250 to recognise the avoidable frustration and inconvenience caused to Miss C within one month of my final decision;
3. decide if and what planning enforcement action is warranted and progress any action in a reasonable time; and
4. provide a monthly update to Miss C about progress.

32. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman