Summary: Mr D complained about how the Council handled his concerns about planning and environmental control breaches by his neighbour since 2021. We found fault by the Council for causing unnecessary delays from Summer 2024. It was not at fault for the delays in taking enforcement action prior to this. The Council should apologise and make payment to Mr D to acknowledge the distress and uncertainty its delays are causing him.

The complaint

1. The complainant, Mr D, complains about the way the Council has dealt with his concerns about planning and environmental control breaches by the owner of a neighbouring property since 2021. He says it has caused delays and failed to take enough action to protect neighbouring amenity.
2. Mr D said, as a result, he has experienced distress and uncertainty, and an impact on his amenity for longer than it should have been.

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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. Mr D’s complaint relates to the Council’s handling of his reports around planning control and environmental control breaches since 2021. Parts of Mr D’s complaint is late. This is because he did not bring these concerns to our attention within 12 months of the actions complained about.
8. However, I have found it reasonable to exercise my discretion to consider Mr D’s complaint from 2022. This is because he has continued to bring his concerns to the Council’s attention, and relevant actions by the Council or his neighbour meant it was not appropriate to bring his concerns to our attention at the time.

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How I considered this complaint

9. As part of my investigation, I have:
• considered Mr D’s complaints and the Council’s responses:
• discussed the complaint with Mr D and considered the information he provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the relevant law, guidance and policy to the complaint.
10. Mr D 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.

Background

20. Mr D lives in a rural area with some neighbours around his property. He and some other neighbours has since 2021 reported concerns to the Council about another neighbour’s (Mr X) 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.
21. 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 X in 2021 to refrain from the activities. If the activities continued the Council or the Police could serve a community protection notice.
22. In 2022 Mr X’s activities continued and he applied for planning permission to permit some of the activities taking place.
23. Mr D continued to report his concerns to the Council. The Council remained in discussions with Mr X and responded to Mr D’s concerns. It also refused Mr X’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 X four month to comply.
24. By the end of the four-month period Mr X appealed the Council’s planning refusal and breach of condition notices to the Planning Inspector. The Council also refused a further retrospective planning application.
25. In 2023 Mr D continued to raise his concerns to the Council. He was not happy with the lack of progress in the enforcement action against Mr X. The Council explained it would provide updates, but Mr X had appealed its decision, and it was awaiting the outcomes from the Planning Inspector. Mr D acknowledged this but said the Council could take some enforcement action against the unauthorised occupation on Mr X’s land which was not under appeal or a planning application.
26. In Autumn 2023 the Planning Inspector considered Mr X’s appeals, which were all dismissed. The decisions gave Mr X three months to comply with the Council’s notices, which expired in late 2023.
27. In January 2024 the Council’s enforcement team arranged for inspections at Mr X’s land and involved its legal team to consider legal action against Mr X.

Mr D complaint

28. In March 2024 Mr C complained to the Council about the lack of action since the Planning Inspector’s decisions in Autumn 2023. He acknowledged legal action would take time, but said the Council had failed to take appropriate enforcement action against Mr X, including interim action such as a stop notice. He said as a result he and other neighbours continued to experienced distress, inconvenience and their amenity was impacted.
29. In response the Council explained the steps it had taken since 2021 to investigate and action the 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 X 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 X on each of the breaches it had found.
30. Mr D escalated his complaint to the Council. He said it had only explained its actions up to Autumn 2023 when the Planning Inspector dismissed Mr X’s appeals. However, since then there had been no enforcement action by the Council. He also said the unlawful occupation was not subject to an appeal and was actionable from May 2023.
31. In its final response the Council did not uphold Mr D’s complaint. It said it appropriately considered its decisions and followed the relevant procedures to progress the concerns. It acknowledged Mr D was not happy with how long this had taken, and he had been impacted by the actions of Mr X during this time.
32. Mr D asked the Ombudsman to consider his complaint about the Council’s handling of enforcement action against Mr X, including after May 2022 when occupation of Mr X’s land was no longer under appeal and after Autumn 2023 when the Planning Inspector dismissed Mr X’s appeals.
33. 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 Mr D communication and kept him 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.

Analysis and findings

The Council’s handling of Mr D’s reported breaches from 2022 to October 2023

34. I have not found fault in the process the Council followed to reach its decisions about Mr D’s reports of planning control breaches against Mr X prior to October 2023. In reaching my view I was conscious:
• it initially acknowledged Mr D’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 X was acting in breach of planning control, it attempted to address these informally with Mr X, served warnings and breach of control notices, and considered the retrospective planning applications it received;
• at each stage, Mr X 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.
35. I acknowledge Mr D is highly likely to have experienced distress and an impact on his amenity as a result of Mr X’s actions and various breaches of planning control. However, this was not due to fault or delay by the Council during this period.

Council’s handling of Mr D’s reported breaches after October 2023

36. The Planning Inspector dismissed Mr X’s appeals in Autumn 2023 with a compliance date for late 2023.
37. The evidence shows the Council involved its legal team in January 2024 to help it reach a decision on legal action against Mr X. It conducted inspections to confirm Mr X remained in breach of the identified planning control concerns. It also considered a new potential breaches of planning control against Mr X.
38. The Council also acknowledged Mr D wanted it to take interim action such as serving a stop notice on Mr X. The Council explained it had considered this but found this was unlikely to be an effective action based on its dealings with Mr X. This was a decision the Council was entitled to make.
39. 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 X for a substantial period of time. During this time, it has recorded evidence of breaches and behaviour by Mr X, 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 X following such involvement;
• its role was, and remains, to decide whether to take action against none, some, or all of Mr X’s identified breaches. If the Council has retained records and evidence during its involvement, this should not require further extensive investigations;
• By late 2024, it has taken 12 months for the Council to take any legal action, or decide against any legal action against Mr X. Yet, no further action or decisions had been made. I have not seen any evidence which justifies this delay.
40. I cannot say exactly when the Council should have taken action against Mr X 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 Mr D, within six months of when the appeal rights to the planning inspector expired in late 2023.
41. I therefore found, up to October 2024, the Council’s delay has caused Mr D 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 X, including starting the proceedings, or sharing its decision with Mr D.

Council’s communication and complaints handling

42. I have not found fault in how the Council communicated with Mr D since 2022. This is because it has acted in line with its policy and provided updates when new stages of the enforcement process took place.
43. 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 Mr D.

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Agreed action

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

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 Mr D a symbolic payment of £200 to acknowledge the distress and uncertainty he experienced as a result of its delay.
2. Within two months of the final decision the Council should also:
1.  
2.  
3. reach its decision on whether to take legal action against Mr X for the identified breaches of planning control and issue the relevant legal proceedings. It should share its decision with Mr D and the Ombudsman;
4. review why delays in taking legal action or reaching a decision not to progress the matter further has happened. Including sharing with the Ombudsman the steps the Council intends to put in place to ensure such delays does not reoccur.
3. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation with a finding of some fault by the Council which caused Mr D 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