Summary: Mr X complained about the Council’s actions when it served a planning enforcement notice on his son, a minor. We will not investigate this complaint further. This is because there is ongoing enforcement action. Mr X can raise his concerns about service of the enforcement notice with the court, should it go that far.

The complaint

1. Mr X complained about the Council’s handling of a planning enforcement investigation. In particular, he complains about:
1. service of an enforcement notice on his teenage son; and
2. failure to engage with him prior to the notice being served.
2. Mr X says this meant he was unaware of the ongoing enforcement action until several months later, so denying him of his right to appeal to the Planning Inspector.

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The Ombudsman’s role and powers

3. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))

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How I considered this complaint

4. I spoke to Mr X and reviewed the information he provided.
5. I made enquiries with the Council and reviewed the relevant law.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning enforcement

7. 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.
8. Councils have a range of options for formal planning enforcement action available to them, including planning enforcement notices. This sets out where there is evidence of a breach and requires action to remedy it. There is a right of appeal to the Planning Inspector.

What happened

9. In 2015, Mr X bought a parcel of agricultural land to the rear of his property. He was led to believe that he could carry out a limited amount of domestication on the land. He says he occasionally mowed the grass, kept the already-erected goals posts and planted some non-native plants and trees.
10. In 2020, the Council wrote to Mr X to say that he was in breach of planning control. Mr X says he did not receive this letter and so was unaware the Council has concerns about his use of the land.
11. In October 2021, the Council served an enforcement notice on Mr X. As Mr X was not at home, the notice was left with Mr X’s son, who was 13 at the time. The Council also served a copy of the notice on Mr X’s mortgage provider.
12. The notice advised Mr X of his right to appeal to the Planning Inspector.
13. Mr X says the notice was not passed to him by his son. He did not become aware of it until he was contacted by his mortgage provider in March 2022.
14. By this time, the time limit to appeal to the Planning Inspector had expired. It also meant he was unable to submit a retrospective planning application.
15. Mr X complained to the Council about its failure to properly serve the notice on him. The Council, having sought legal advice, determined it had complied with the statutory requirements by leaving the notice at the relevant premises.
16. Since making his complaint, the Council has had several discussions with Mr X to address, what it considers to be, unauthorised development on the site. In response to our enquiries, the Council has said Mr X has failed to comply with its requirements and has passed the case to its legal department with a view to a possible criminal prosecution.

Analysis

17. I will not investigate the complaint further. This is because there is ongoing enforcement action, and the Council has indicated that it has passed the case to its legal department with a view to a possible prosecution.
18. If this occurs, Mr X will be entitled to raise his concerns about service of the notice on a minor with the court. It is the court, not the Ombudsman, that has jurisdiction to determine the legality of this service. It also the court, not the Ombudsman, that can make a judgement about whether the development on site is lawful or not. This lies at the heart of Mr X’s complaint.
19. I will not investigate Mr X’s complaint about the Council’s failure to properly engage with him prior to the service of the notice. This is because it is highly unlikely, I would be able to make a finding on whether a letter was sent to Mr X three years afterwards.

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Final decision

20. I have discontinued my investigation for the reason explained in this decision statement.

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Investigator's decision on behalf of the Ombudsman