Summary: Ms X complained about how the Council handled her concerns about breaches of planning and environmental control, and anti-social behaviour by her neighbour since 2021. We found fault by the Council for causing unnecessary delays in the planning enforcement process from Summer 2024. It was not at fault for the delays prior to this, or the other matters complained about as it reached decisions it was entitled to make. The Council should apologise and make payment to Ms X to acknowledge the distress and uncertainty its delays are causing her.

The complaint

1. The complainant, Ms X, complained about the way the Council dealt with her concerns about her neighbour’s breaches of planning control, environmental health, and anti-social behaviour since 2021. She said the Council has failed or caused delay to:
• progress identified planning control breaches which has been ongoing for several years and take appropriate legal action. She said it failed to respond or provide updates, and it gave assurances action was imminent or had commenced which was untrue; and
• progress and action environmental health concerns and anti-social behaviour.
2. Ms X said, as a result, she experienced distress and uncertainty, and her residential amenity was impacted.

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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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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

7. Ms X’s complaint relates to matters which occurred since 2021. Parts of the complaint is therefore late. However, I have found it appropriate to exercise my discretion to consider her complaint about the Council’s handling of:
• planning control breaches since 2022 as she continued to bring her concerns to the Council’s attention, and relevant actions by the Council or her neighbour meant it was not appropriate to bring her concerns to our attention at the time; and
• environmental control breaches and anti-social behaviour since Summer 2023. I have not investigated any earlier concerns about such behaviour or incidents as these are late and could have been brought to our attention at the time.
8. I have not investigated any new planning control matters which occurred in 2024, nor any environmental control or anti-social behaviour concerns since Spring 2024 as these were not part of the original complaint to the Council. This is because the Council has not had the opportunity to investigate and respond to these through its complaints process.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms 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

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.
12. 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.
13. 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.
14. 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)

The Council’s enforcement policy

15. The Council’s policy sets out how it will acknowledge and investigate report of planning control breaches.
16. Planning enforcement operates to protect the public interest. It is not the purpose of the planning system to protect the private interests of one person against the activities of another. Action must be based on sound planning grounds and be proportionate to the harm caused by the breach. Local opposition to, or support for, an unauthorised development will not be given weight unless that opposition or support is founded upon valid planning reasons.
17. It will only take formal enforcement action when expedient to do so. Formal enforcement action will not be instigated solely to regularise trivial breaches of planning control. In taking formal enforcement action, the Council will be prepared to use all the enforcement powers available, but the action taken will be commensurate with the seriousness of the breach.
18. It receives a high number of allegations of planning control breaches each year. It therefore prioritises these according to the seriousness of the alleged breach and the degree of harm being caused.
19. Enforcement cases may require repeat site visits, negotiation, and formal action before the breach is resolved. When these occur, Enforcement Officers will strive to keep original complainants informed of progress and indicate arrangements for this in the initial response letter. It will then keep individuals updated at the stage of any further action as well as the closure stage. It is unlikely to be able to respond to repeated requests for updates outside these stages.

Statutory nuisances

20. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
21. Activities a council might decide are a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.
22. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other property; and/or
• injure health or be likely to injure health.
23. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
24. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
25. The law says that a potential nuisance must be judged on how it affects the average person. Councils cannot take action to stop something which is only a nuisance to the complainant because they have special circumstances, such as a medical condition which makes them unusually sensitive to noise or fumes.
26. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
27. A member of the public can also take private action against an alleged nuisance in the magistrates’ court under section 82 of the Environmental Protection Act 1990. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to tell complainants about their right to take private action.

Anti-social behaviour

28. Councils have a general duty to tackle anti-social behaviour (ASB). But ASB can take many different forms; and when someone reports a problem, councils should decide which of their powers is most suitable.
29. For example, they may approach a complaint:
• as an environmental health issue, where the complaint is about noise or pollution;
• as a planning matter, where the complaint is about an inappropriate use of a building or facility; or
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.
30. The 2014 Act introduced six powers for agencies involved in tackling ASB. These are:
• the power to issue a community protection notice (CPN);
• the power to make a public spaces protection order (PSPO);
• the power to close premises for a set length of time;
• a civil injunction (a court order, which a council, or other agencies, can apply for);
• a criminal behaviour order (a court order made following a conviction); and
• the power for the police to disperse people from a specified area.

Community protection notices

31. Councils and the police can issue community protection notices (CPN) to prevent anti-social behaviour which is unreasonable and having a negative effect on the community's quality of life. A CPN requires the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to stop it happening again. Not complying is an offence and may result in a fine or a fixed penalty notice.
32. Councils must issue a written warning in advance of a CPN. The council should decide how long after the written warning to wait before serving a CPN. A person can appeal a CPN in the magistrates' court within 21 days of receiving it if they disagree with the council’s decision.
33. In some instances, antisocial behaviour may cause a statutory nuisance under the Environmental Protection Act. In such cases councils can serve both a CPN and an abatement notice on the perpetrator, if they consider it necessary.

What happened

34. Ms X lives in a rural area with some neighbours around her property. She and some other neighbours has since 2021 reported concerns to the Council about another neighbour’s (Mr Y) activities within and around his property boundary. The reports included:
• conducting industrial activities and business, residential use of the property, and destruction of woodland not permitted in environmental permits or the use of the land;
• use of vehicles and machinery and other activities in a manner that may cause a nuisance or impact on neighbouring amenity;
• acting in a manner which caused distress and harassment to neighbours.
35. The Council considered the reports it received through its Environmental protection and planning enforcement teams. This led to a community protection warning being issued to Mr Y in 2021 to refrain from the activities. If the activities continued the Council or the Police could serve a community protection notice.
36. In 2022 Mr Y’s activities continued and he applied for planning permission to permit some of the activities taking place.
37. Ms X continued to report her concerns to the Council. The Council remained in discussions with Mr Y and responded to Ms X’s concerns. It also refused Mr Y’s planning application and served breach of condition notices regarding the occupation, use of the land, and some development and activities taking place. These gave Mr Y four month to comply.
38. By the end of the four-month period Mr Y appealed the Council’s planning refusal and breach of condition notices to the Planning Inspector. The Council also refused a further retrospective planning application.
39. In 2023 Ms X, and other neighbours, continued to raise her concerns to the Council. She was not happy with the lack of progress in the enforcement action against Mr Y. The Council explained it would provide updates, but Mr Y had appealed its decision, and it was awaiting the outcomes from the Planning Inspector. Ms X acknowledged this but wanted the Council to take some enforcement action against the unauthorised occupation on Mr Y’s land which was not under appeal or a planning application.
40. In Autumn 2023 the Planning Inspector considered Mr Y’s appeals, which were all dismissed. The decisions gave Mr Y three months to comply with the Council’s notices, which expired in late 2023.
41. Between Summer 2023 to January 2024 Ms X reported several concerns about her neighbours’ actions to the Council. This included Mr Y causing nuisances from:
• burning commercial waste and other materials;
• burying waste unlawfully on his land. She had also reported this to the Environment Agency and the County Council, but was not satisfied with the action taken;
• a rat infestation due to keeping animals near to her property boundary and loose animals;
• depositing soiled bedding containing cow manure near her property boundary causing strong odours;
• noise and dust from activities of which some were in breach of planning control; and
• Mr Y’s behaviour towards neighbours.
42. The Council opened environmental health enforcement records for each reported concern and acknowledged receipt to Ms X. It subsequently accumulated the reported concerns into one environmental health and ASB investigation.
43. The Council considered Ms X’s concerns. This included liaising with it planning team regarding the planning enforcement actions, discussions with the Environment Agency and the County Council, the police, and some other bodies.
44. In January 2024 the Council’s planning enforcement team and environmental health team arranged for a visit to Ms X and other neighbours affected. The Council also conducted inspections at Mr Y’s land, and spoke with Mr Y. During its visits it was given access to inspect all areas.
45. The planning enforcement team subsequently involved its legal team to consider legal action against Mr Y regarding the planning control concerns. However, the Council found none of the concerns reported to amount to statutory nuisances for noise, dust, or odours. Nor did it find evidence of a rat infestation. It explained its role to Ms X and which part of her concerns were for the Environment Agency, the County Council and the Police to consider. It offered to provide diary sheets and noise monitoring equipment to enable evidence gathering.
46. Ms X says she has completed diary sheets. The Council said it provided noise monitoring equipment to another neighbour and Ms X reported the rat concerns were currently under control as she had put traps.
47. The Council kept the file open for a few months and reviewed the diary sheets it had received. During this time, it continued to work with other bodies regarding the case as part of a hate and anti-social behaviour risk assessment conference (HASBRAC). However, by May 2024 the Council closed the environmental health and ASB case as it had not received enough evidence or witnessed the matters complained about.

Ms X’s complaint

48. Ms X complained to the Council about the lack of action since the Planning Inspector’s decisions in Autumn 2023. She acknowledged legal action would take time, but said the Council had failed to take appropriate enforcement action against Mr Y, including interim action such as a stop notice. She said as a result she and other neighbours continued to experienced distress, inconvenience and their amenity was impacted.
49. Ms X did not make a separate complaint to the Council about its handling of her environmental health or anti-social behaviour concerns.
50. In response the Council explained the steps it had taken since 2021 to investigate and action the planning control reports it had received. This included some challenges due to COVID-19, several inspections, serving of warnings, breach of condition notices, considering retrospective planning applications, and presenting its cases to the planning inspector appeals. It explained it could not take further action against Mr Y during such stages, and it did not believe a stop notice would be appropriate given the circumstances. It had therefore involved its legal team to consider the case and help reach a decision on legal action against Mr Y on each of the breaches it had found.
51. The Council did not agree it had been at fault. It said it appropriately considered its decisions and followed the relevant procedures to progress the concerns. It acknowledged Ms X was not happy with how long this had taken, and she may have been impacted by the actions of Mr Y during this time.
52. Ms X asked the Ombudsman to consider her complaint about the Council’s handling of enforcement action against Mr Y, its assurances between Autumn 2023 to Autumn 2024 legal action was progressing and imminent, and its handling of her environmental health and ASB concerns.
53. In response to my enquiries the Council provided an update on the events which had occurred since 2021. In October 2024 it explained it had:
• decided to consider all the breaches together. This included the breach of occupation to enable it to manage the case efficiently. It had found this to be proportionate and expedient in the circumstances;
• responded to Ms X’s communication and kept her informed when it had updates to provide; and
• involved its legal team to consider the case and help reach a decision on legal action in January 2024. This was when the compliance period for the Planning Inspector appeals had expired. It said the legal process takes time and was ongoing.
54. Ms X provided further evidence of the correspondence she had with the Council between Autumn 2023 to Autumn 2024. This shows the Council told her, other neighbours, and the Parish Council that legal action was either imminent or alluded to this had already been filed with the court.

Analysis and findings

The Council’s handling of Ms X’s reported planning enforcement breaches from 2022 to October 2023

55. I have not found fault in the process the Council followed to reach its decisions about Ms X’s reports of planning control breaches against Mr Y prior to October 2023. In reaching my view I was conscious:
• it initially acknowledged Ms X’s reports and commenced its investigations into the reported breaches. This led to several inspections to determine whether breaches of planning control were occurring;
• once the Council found Mr Y was acting in breach of planning control, it attempted to address these informally with Mr Y, served warnings and breach of control notices, and considered the retrospective planning applications it received;
• at each stage, Mr Y used the available compliance or appeal periods to its fullest extent which caused delays. This included his appeals to the Planning Inspector which significantly delayed any action the Council could take;
• there was no evidence of delay caused by the Council in the process during this period; and
• the only planning control breach the Council could have actioned sooner was the unlawful occupation. However, it considered this and found it proportionate and expedient to address this along with the other identified breaches. This was a decision it was entitled to make.
56. I acknowledge Ms X is highly likely to have experienced distress and an impact on her amenity as a result of Mr Y’s actions and various breaches of planning control. However, this was not due to fault or delay by the Council during this period.

The Council’s handling of Ms X’s reported breaches after October 2023

57. The Planning Inspector dismissed Mr Y’s appeals in Autumn 2023 with a compliance date for three months later.
58. The evidence shows the Council involved its legal team in January 2024 to help it reach a decision on legal action against Mr Y. It conducted inspections to confirm Mr Y remained in breach of the identified planning control concerns. It also considered a new potential breaches of planning control against Mr Y.
59. The Council also acknowledged Ms X wanted it to take interim action such as serving a stop notice on Mr Y. The Council explained it had considered this but found this was unlikely to be an effective action based on its dealings with Mr Y. This was a decision the Council was entitled to make.
60. I acknowledge the legal process for enforcement action can be challenging for the Council and it needs to ensure when taking such action, it is robust and defensible. However, based on the evidence available, I am not satisfied the Council acted without delay since January 2024. This is because:
• it has been involved in the case against Mr Y for a substantial period of time. During this time, it has recorded evidence of breaches and behaviour by Mr Y, served several notices, refused retrospective planning applications, and defended appeals to the Planning Inspector. I would expect it to have ample evidence to justify any action it intends to take against Mr Y following such involvement;
• its role was, and remains, to decide whether to take action against none, some, or all of Mr Y’s identified breaches. If the Council has retained records and evidence during its involvement, this should not require further extensive investigations; and
• by late 2024, it has taken 12 months for the Council to take any legal action, or decide against such action against Mr Y. Yet, no further action or decisions had been made. I have not seen any evidence which justifies this delay.
61. I cannot say exactly when the Council should have taken action against Mr Y in court or reached a decision not to take further action. However, in this case, I would expect for such decisions to be made, and shared with Ms X, within six months of when the appeal rights to the planning inspector expired in late 2023.
62. In addition, Ms X has shared evidence of her communication with the Council, including that of other interested parties. I found this clearly shows the Council led Ms X to believe legal action was imminent from at least early 2024 until October 2024, as it told her enforcement papers has been completed, alluded to court action had already been served and a hearing date was expected.
63. I therefore found, up to October 2024, the Council wrongly gave inaccurate reassurances of the legal progress for enforcement, and the Council’s delay has caused Ms X distress and uncertainty for a four-month period. This is ongoing until it has reached its view on whether to take legal action against Mr Y, including starting the proceedings, or sharing its decision with Ms X.

The Council’s handling of Environmental and anti-social behaviour concerns

64. I have considered the process the Council followed to reach its view to close its investigation into the concerns she reported. This shows it:
• acknowledged her concerns and opened a case for each incident;
• collated the reported concerns in one investigation, which was considered by its environmental health, ASB, and planning enforcement teams;
• visited Ms X and discussed her and other neighbours’ concerns, and inspected the reported concerns on Mr Y’s land and brought the concerns to his attention;
• discussed the reported concerns with the Environment Agency, the County Council, the Police and other bodies regarding matters which were unlikely to be the Council’s duty to consider. It also took part in a multi-agency conference where the case relating to Mr Y was considered;
• offered diary sheets and noise monitoring to Ms X, and took account of her updates that the rat issue was under control and no further concerns were reported during the following months; and
• it had regard to the powers available to it under relevant legislation including the Environmental Protection Act 1990, the Anti-Social Behaviour Crime and Policing Act 2014, the Prevention of Damage buy Pests Act 1949, and the Clean Air Act 1993.
65. I have not found fault in the process the Council followed to reach its views between Summer 2023 to Spring 2024 regarding the environmental and ASB concerns it received. It therefore reached a decision it was entitled to make.
66. While I understand Ms X, and other neighbours, have since reported new or continuing concerns, these were not part of a complaint to the Council. If Ms X is not satisfied with the Council’s handling of concerns she has reported since Spring 2024, she will need to bring a complaint to the Council’s attention.

Council’s communication and complaints handling

67. I have not found fault in how the Council communicated with Ms X since 2022, other than the inaccurate reassurances regarding the legal process. This is because it has acted in line with its policy and provided updates when new stages of the enforcement process took place.
68. I acknowledge the Council’s policy warns it may not provide updates outside the stages of the enforcement process, even when a complainant asks for an update. However, in this case the Council did decide to provide some additional updates to Ms X.

Service improvement recommendations

69. I have not made any service improvement recommendations on this case. This is because any recommendations I would have made has recently been addressed as part of a similar case.

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Action

70. To remedy the injustice the Council caused to Ms X, the Council should, within one month of the final decision:
1. apologise in writing to Ms X for its delay in reaching its view whether to commence legal proceedings against Mr Y’s breaches of planning control, including actioning its decision or sharing the outcome with Ms X.

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.

2. pay Ms X a symbolic payment of £250 to acknowledge the distress and uncertainty she experienced as a result of its delay. Including its incorrect reassurances the legal process was imminent or had already started which unnecessarily increased her expectations.
2. The Council should provide us with evidence it has complied with the above actions.

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Decision

72. I find fault by the Council causing Ms X an injustice. This was for causing unnecessary delays to finalise its enforcement investigation and reach a decision on legal action since Summer 2024. It was not at fault for delays which occurred prior to this.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman