Summary: X complained about delay by the Council in taking planning enforcement action against a developer on land next to their home. We did not investigate this complaint further because the planning enforcement process is still ongoing.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to take enforcement action soon enough to control a breach of planning control on land next to their home.
3. X said the use of the land affects the enjoyment of their home and garden. X said visitors to the site park vehicles in unsafe places, sometimes blocking roads.
4. X would like the development to be demolished and the Council to pay compensation for the distress caused to them, and for damage to their home.

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The Ombudsman’s role and powers

5. We investigate 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 continue an investigation if we decide:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I read the complaint and invited X to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
7. I have given the Council and X an opportunity to comment on my draft decision and will take account of any comments I receive.

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What I found

Planning enforcement powers

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. 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.
10. Planning applicants and those who receive enforcement notices may appeal to the Planning Inspectorate in certain circumstances. Planning inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

11. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.
12. We do not normally investigate complaints about councils while planning application or enforcement processes are underway.

What happened

13. X lives next to a site that is used as a non-residential institution. An extension was built without planning permission and a retrospective application was submitted and refused by the Council. The developers appealed to the Planning Inspectorate, who did not uphold the appeal.
14. The Council served an enforcement notice and the developer appealed against it to the Planning Inspectorate. The Planning Inspectorate has not yet decided this appeal.

My findings

15. 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.
16. X has complained there was delay by the Council in taking enforcement action. If we find significant delays that cannot be justified, we can find fault. However, before we continue our investigation, we need to be satisfied we can reach a meaningful outcome, such as a finding of significant injustice that we can remedy.
17. If at any point during our involvement with a complaint, we are satisfied we cannot decide any alleged fault has caused an injustice, or we cannot yet determine what that injustice would be, we can end an investigation we have already started.
18. At this time, I cannot know the outcome of the planning inspector’s decision on the appeal. Even once the appeal has been decided, there will be opportunities to challenge that decision in the courts by way of judicial review. It is also possible there might be other applications made to the Council by the developer, for example, to vary plans that it has already refused.
19. Until the planning process has run its course, we will not be able to determine the extent of any potential injustice that might be caused by any alleged fault. X may come back to us at the end of this process.

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Final decision

20. I ended my investigation because the planning process is ongoing.

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Investigator's decision on behalf of the Ombudsman