Summary: Mr X complained about the Council’s failure to deal with breaches of planning control that affected his home. We found fault in the Council’s enforcement investigation. The Council agreed to apologise to Mr X for the distress and frustration caused by its avoidable delay and unclear communications.

The complaint

1. Mr X said there was unreasonable delay by the Council in dealing with breaches of planning control on land near his home. And the Council was unclear in its communications with him about timescales for its enforcement investigation.
2. Mr X said the breaches led to increased noise, reduced his privacy and put him to the time, trouble and cost of trying to lessen the impact of the unauthorised development on his home.
3. Mr X wanted the Council to issue an enforcement notice to deal with the unauthorised development and address the impact of the breaches on his home.

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The Ombudsman’s role and powers

4. 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)
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

6. I:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• considered the Council’s 2017 Development Management Enforcement Policy;
• considered information about the development available on the Council’s website;
• asked for and considered the Council’s comments and supporting papers about the complaint; and
• gave Mr X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

7. Councils can take enforcement action if they find a breach of planning rules. Enforcement action is discretionary, so councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements or asking the developer for an application so the council can formally consider whether to give the unauthorised development planning permission.
8. Councils have choices for formal enforcement action. For example, they may serve notices to get information about the ownership of land and to secure compliance with planning conditions. And, if they are satisfied it is ‘expedient’ having considered relevant planning policies and other material planning matters, they may issue a formal enforcement notice.
9. Government guidance says any formal enforcement action should be proportionate to the suspected breach. When deciding whether to enforce, councils will consider the likely impact of harm to the public and whether they might approve the unauthorised development.
10. A failure to comply with formal planning notices is usually a criminal offence. However, many notices also give the developer a right to appeal to the independent Planning Inspectorate. The grounds of appeal against a formal enforcement notice, include that planning permission should be granted for the unauthorised development.
11. Planning enforcement has legal time limits. For the breaches raised by Mr X, the Council had four years to act.
12. The Council has a 2017 Development Management Enforcement Policy (‘the Policy’). The Policy reflects Government guidance about proportionate enforcement responses and the public interest (see paragraph 9 of this statement). The Policy says formal action will not normally be ‘expedient’ where the unauthorised development might reasonably gain conditional planning permission.
13. The Policy says a person reporting a breach will receive an acknowledgement within three working days. A Council officer will then visit the site within 10 working days and, within a further 10 working days, update the person reporting the breach on the outcome of the site visit. It is then for the person reporting the breach to contact the Council for further updates.
14. Under the Policy, the Council ranks breaches as low, medium or high priority. For high and medium priority breaches, the Policy says the Council will ask for a planning application if the breaches might reasonably receive conditional planning permission. And, if it does not receive an application, it will assess the case against planning policy and other material considerations to see if further formal action is ‘expedient’. The Policy also says the Council will consider formal action where it becomes clear a developer is unwilling to resolve matters voluntarily.

What happened

15. The Council granted planning permission for development near Mr X’s home. Later, Mr X noticed the development was not being built in line with the planning permission and its conditions. Mr X reported breaches of planning control to the Council. Hearing nothing for four months, Mr X complained to the Council about its failure to act. The Council then carried out a site visit and identified planning breaches on the site. The Council, finding it would likely approve the unauthorised development, gave the developer a month to apply for planning permission. The Council also updated Mr X.
16. The month passed and the Council then chased the developer for an application. About three months after the site visit, the developer made an incomplete planning application. The Council wrote to the developer setting out what was needed to complete the application and giving it two months to do so. Mr X and the Council were also in touch. Meanwhile, people had moved into the development, which led to another breach of the planning permission.
17. While the Council sent a reminder, the two months passed without the developer completing the application. The Council returned the incomplete application to the developer.
18. Over the next two months, the Council sent the developer a formal notice about legal ownership of the site, which the developer completed and returned. The Council then made a second site visit and talked to the developer. While the developer said it would make an application, the Council started to prepare a report about the expediency of taking formal enforcement action. The Council also wrote to Mr X saying it intended to take formal enforcement action, which it would finalise next month.
19. During that next month, the Council had further contact with the developer. At the end of the month a senior Council officer considered the report about formal enforcement action. The Council found issuing an enforcement notice was risky as the site had planning permission and the unauthorised development might be approved on appeal.
20. The Council had not taken formal action when, two weeks later, it received another planning application from the developer. The application was incomplete. The Council again wrote to the developer setting out what was missing and giving it two months to complete the application. The Council told the developer the case would go to its enforcement team for action if it did not complete the application. It was a year since Mr X had first reported planning breaches on the site.
21. Mr X complained to the Council. Mr X said its updates showed many delays by the Council in dealing with the site. The Council kept giving the developer opportunities to put things right, which it repeatedly and deliberately failed to act on. The developer had no incentive to comply, and it was unfair to rely indefinitely on its promises. Mr X asked the Council to issue an enforcement notice.
22. In response to the complaint, the Council said, in summary, enforcement cases could be time consuming. It tried to resolve breaches informally where possible but would always consider formal action where people were unwilling to do so. The unauthorised development was likely acceptable, so securing an application was the preferred approach. The developer had made a further incomplete application and still had a month to put it right. It was ready to issue an enforcement notice if the developer did not complete the application.
23. A month passed; the application remained incomplete. The Council sent the developer a reminder but, a week later, returned the incomplete application.
24. Over the following six weeks, the Council had further contact with the developer. The Council told the developer formal action was “imminent” as it held no valid application. The developer appointed new agents to help with planning matters. The agents contacted the Council and, about three months after returning the second invalid application, the Council received a third, properly made, application. It was over seventeen months since Mr X had first reported planning breaches on the site. Meanwhile, Mr X had brought his complaint to the Ombudsman.

Consideration

Introduction

25. Our role is to consider whether there is evidence of fault in how councils reach their decisions. If we find fault, we then consider if that fault caused significant injustice to the person complaining. Here, that meant looking at how the Council responded to Mr X and investigated his report of breaches of planning control on the site. Mr X’s complaint to us raised two main issues: delays and poor communication, which were the focus of my investigation.

Delay

26. The Council has now received a valid application seeking retrospective planning permission for the unauthorised development near Mr X’s home. Before deciding that application, the Council must give Mr X the opportunity to comment on the application. It will also have to take account of Mr X’s comments on planning and land use issues in deciding the application. However, the Council’s consideration of the application is not part of my investigation. But receipt of the application marks a key date in the Council’s efforts to resolve the planning breaches on the site near Mr X’s home.
27. The Council received the valid application about seventeen months after Mr X reported planning breaches on the site. That is a long time. However, planning enforcement cases often take a long time to investigate and conclude. The key question was whether there was evidence of avoidable delay during the seventeen months.
28. Here, the evidence showed the Council failed to act on Mr X’s report for four months. The Council recognised this in responding to Mr X’s Ombudsman complaint and accepted it did not comply with the Policy (see paragraph 13). The Council explained a backlog of enforcement cases had accrued during an officer’s long-term absence. While the Council’s staffing issues were regrettable, I found there was avoidable delay at the start of the Council’s enforcement investigation. That delay was frustrating for Mr X as shown by his complaint to the Council (see paragraph 15). So, I also found the fault caused Mr X injustice.
29. After the site visit, the Council gave the case ‘medium’ priority (see paragraph 14). And it viewed the breaches as likely to gain planning permission if the developer applied for it. So, the Council’s approach, which was in line with the Policy, was to seek a retrospective planning application. The Council also updated Mr X about its intention to ask the developer to apply for planning permission. However, it was thirteen months from the first site visit before the Council received a properly made planning application.
30. During the thirteen months, the evidence showed the Council continued to work on the case. The actions taken by the Council included contacts with the developer, another site visit and contact with Mr X. The evidence also showed the Council got information about legal ownership of the site and prepared both an enforcement report and formal notice. One breach, which had a direct impact on Mr X from overlooking and loss of privacy, was also resolved informally.
31. The Council also spent significant time trying to secure valid planning applications when the developer twice sent incomplete paperwork. It was not the Council’s fault the developer made two incomplete applications. As the Council pointed out in responding to Mr X’s complaint to the Ombudsman, Government guidance expects councils to make every effort to resolve validation disputes. And, as the developer made the two applications, they provided evidence it was willing to cooperate with the Council in resolving the case without the need for formal enforcement action. In the circumstances, I did not find the Council acted with fault in giving the developer time to complete the two applications, despite its efforts proving unsuccessful.
32. The evidence also showed increasing firmness in the Council’s correspondence with the developer and, after their appointment, its new agents, a professional planning firm. The Council had, reluctantly, agreed a deadline for the agents to send a third application. In doing so, I was satisfied the Council had made clear that any failure to meet that deadline would see the case move to formal enforcement action.
33. I recognised Mr X was not satisfied the Council acted in a timely way during the thirteen months of its active investigation. However, I found no avoidable delay, or any other fault, by the Council in the time it took to secure a valid application.

Communication

34. Mr X found the Council’s communications unclear as it gave the developer deadlines for making applications but failed to take enforcement action after the deadlines passed (see paragraphs 18 and 22). The evidence showed that at the start of its enforcement investigation the Council told Mr X it considered the unauthorised development would likely be granted planning permission. So, its approach was to secure a planning application from the developer and then formally assess the unauthorised development.
35. The evidence also showed the Council had prepared for formal action within about two months of returning the first application to the developer (see paragraphs 17 to 19). The Council did not share with Mr X its concerns that formal action would be risky, costly, and any appeal could take significant time (see paragraph 19). And before finally deciding to take enforcement action, the developer made a second application (see paragraph 20). The Council then repeated to Mr X its continuing preference for an informal resolution (see paragraph 22). And, after the Council returned the second application, it had not taken formal action when the developer’s new agents made contact (see paragraph 24). The Council said it had dealt with the agents in the past, receiving valid planning applications from them.
36. Reading the correspondence between Mr X and the Council, I found there was a tension in play. Overall, the Council’s consistent approach was to secure a planning application as the unauthorised development would likely gain planning permission. But there was potential for formal enforcement action if the ‘medium priority’ breaches were not resolved informally (see paragraphs 14 and 29). The Council did not clearly explain this tension to Mr X. In failing to do so, the Council raised Mr X’s expectations of formal action at times when its preference, to work with the developer informally, remained. I therefore found there was fault causing injustice here. I therefore thanked the Council for recognising that different and clearer wording might have avoided Mr X becoming frustrated when no formal enforcement notice was issued.

Conclusion

37. There was avoidable delay by the Council in starting its enforcement investigation into Mr X’s report of breaches of planning control. Once the Council visited the site, it considered the breaches it found would likely gain planning permission. Its approach, therefore, was to seek a retrospective planning application from the developer, which was in line with the Policy (see paragraphs 12 and 14). The evidence showed the developer engaged with the Council, although unsuccessfully, in making planning applications. It therefore took longer than the Council had expected to secure the application. But, after the seventeen months, Mr X was in the position he and the Council had expected to be in about a year earlier. The Council was now assessing the application, taking account of planning representations made by Mr X.
38. However, during the active enforcement investigation, the Council inappropriately raised Mr X’s expectations about it taking formal enforcement action. So, while Mr X was now in the position the Council had presented to him on first contact, he experienced avoidable frustration and distress due to its later unclear communications, and the delayed start to its investigation.

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Agreed action

39. To put right the injustice to Mr X which arises from the fault I identified at paragraphs 28 and 36 and summarised at paragraphs 37 and 38, the Council agreed:

• (within 10 working days of this statement) to send Mr X a written apology for the avoidable distress and frustration caused by its avoidable delay in starting its enforcement investigation and unclear communications.

40. The Council also agreed to issue a written reminder to its enforcement staff about the need for clear and accurate communication with residents on enforcement cases. The aim being to ensure officers did not inappropriately raise residents’ expectations about what action it would take and by when. The written reminder was to be sent within five working days of this statement.
41. In making the apology referred to in the bullet point to paragraph 39, the Council agreed to refer to the Ombudsman’s ‘apology checklist’ at: Guidance on remedies - Local Government and Social Care Ombudsman. The Council also agreed to provide us with evidence it had complied with the recommendations set out at paragraphs 39 and 40 within 10 working days of such compliance.

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Final decision

42. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs 39 to 41 of this statement.

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Investigator's decision on behalf of the Ombudsman