Summary: Mr X complained about how the Council responded to his concerns after closing its planning enforcement case into use of land near his home. Mr X said the Council’s failure to take enforcement action had a harmful impact on his family’s home and well-being. We found no fault in how the Council responded to Mr X’s concerns.

The complaint

1. Mr X said the Council:

• failed to properly consider and address his complaints following its decision to close its enforcement investigation into use of land near his home;
• failed to follow its previous advice about use of the land; and
• failed to ask for appropriate legal advice on the issues he raised.

2. Mr X said the Council’s views about use of the land near his home had a harmful impact on his and his family’s well-being and enjoyment of their home.
3. Mr X wanted the Council to:

• apologise;
• be held accountable for not following its previous advice;
• address the inconsistencies and mistakes it made during its enforcement investigation; and
• review its policies and procedures to avoid future mistakes and ensure legal professionals reviewed its decisions.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. 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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended) Mr X has given his written consent for S to act for him in making this complaint.
7. 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

8. The complaint arose from the Council’s decision not to take planning enforcement action against use of land near Mr X’s home (‘the Site’). Among the issues raised in the complaint was the adequacy of a lawful development certificate (‘the Certificate’) covering part of the Site.
9. The Certificate was issued over four years ago. Its grant was also part of an earlier complaint to the Ombudsman made by S for Mr X. A complaint now about the grant of the Certificate would be a late complaint (see paragraph 5). It would also need the Ombudsman to address a matter she had already considered in completing an investigation into Mr X’s earlier complaint. I therefore saw no good reason to investigate that part of Mr X’s complaint about the grant of the Certificate.

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How I considered this complaint

10. I:

• considered the complaint and supporting papers provided by S and Mr X;
• considered planning information about the site on the Council’s website;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared, where possible, the Council’s information with S; and
• gave S 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

Development

11. Most development needs planning permission from the local council. Development includes making any material change in the use of any buildings or other land. Whether a material change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.
12. Legal rules set out planning uses of land or ‘use classes’ for residential, business, industrial and commercial uses. For example, class B2 is general industrial use, class C4 is small houses in multiple occupation, and class E(b) is use for the sale of food and drink mainly for consumption on the premises.

Enforcement

13. If development takes place without the necessary planning permission or that fails to comply with a planning permission, there will be a breach of planning control. Councils should investigate reported breaches. But planning enforcement is discretionary. The Government’s National Planning Policy Framework (NPPF) says councils should act proportionately in responding to suspected breaches. When deciding whether to take enforcement action, councils should consider the likely impact of harm to the public and whether they might grant planning permission if they received an application for the unauthorised development. As enforcement is discretionary, if councils find a breach, they may decide to take informal action or not act at all.
14. When investigating possible breaches, councils have legal powers to get information about the ownership and use of land and buildings. For example, they may serve planning contravention notices (PCNs) on owners and occupiers. It is an offence to knowingly or recklessly make a false or misleading statement when replying to a PCN.
15. Enforcement action is subject to legal time limits. If the relevant time limit passes, the unauthorised development may become immune from enforcement action. People may then apply to the council for a ‘lawful development certificate’ (LDC). If granted, the development referred to in the LDC will be lawful for planning purposes.
16. The Council has a 2023 Planning Enforcement Strategy, which replaced its earlier 2015 Planning Enforcement Policy, and both reflect the NPPF. They both say dealing with cases can be lengthy and complex, but the Council will tell those reporting breaches of the enforcement decision. The 2015 Policy also said the Council’s enforcement officers would try to keep those reporting a breach informed of progress. The 2023 Strategy says, if someone asks for an update, they will only be told what stage the investigation is at. (The events in this complaint cover the transition from the 2015 Policy to the 2023 Strategy.)

An outline of the complaint

17. Mr X had contacted the Council about alleged breaches of planning control on the Site. The Council had carried out a planning enforcement investigation but found no grounds to take enforcement action (‘the Investigation’). Mr X remained dissatisfied with the Council’s position and sought advice from S.
18. S then wrote to the Council and asked it to review its enforcement position because unauthorised uses were taking place on the Site. S said the head of the Council’s planning enforcement team should carry out the review. S also said the Council should take legal advice as it had not correctly assessed use of the Site. S sent the Council information about use of the Site compiled by Mr X.
19. The Council opened a new enforcement investigation and further investigated use of the Site. The investigation took about five months. The investigation included a search of the Site’s planning history; consideration of photographs, logs, and other information from Mr X; a meeting with Mr X; three site visits (two unannounced); service of two PCNs; and contact with the Site owner and occupiers. The Council decided, as a matter of fact and degree, there had been no change of use on the Site. The Council wrote to Mr X to tell him about the outcome of the investigation.
20. S asked for a further review under the Council’s complaints procedure. S said the Council had still not properly considered or addressed all the unauthorised uses on the Site. And some of its recent comments were inconsistent with what it had said in the past about use of the Site.
21. In the complaint correspondence that followed, S continued to say the Council was not fully considering and addressing Mr X’s significant concerns about the Site (‘S’s Letter’). S’s Letter listed four remaining issues of concern to Mr X. S’s Letter said Mr X wanted the Council to ensure appropriate controls were in place to protect his home from noise and disturbance arising from the increasing commercial use of the Site.
22. The Council’s position, in summary, was S’s key concerns related to planning judgements about the need for enforcement action. It was entitled to reach its enforcement decisions and had explained why its last enforcement investigation found no planning breaches on the Site. However, its planning enforcement team would consider and respond to S’s Letter.
23. The Council’s planning enforcement team further investigated the Site, including making another visit. The Council then wrote to S referring to the paragraphs in S’s Letter (‘the Council’s Letter’). The Council’s Letter ended saying it had fully assessed Mr X’s concerns and had closed its enforcement case taking no action.
24. Mr X complained to the Ombudsman saying the Council had failed to engage with him, instead focussing on the Site owner and occupiers. It had also provided a poor service as it avoided answering key points, which was unfair and unreasonable. Key points unanswered were its change in interpreting the Certificate, about which it refused to seek legal advice, and the failure to consider the impact third party activities on the Site had on his home.

Consideration

Introduction

25. I have carefully considered the detailed correspondence between S, Mr X and the Council. The correspondence makes clear Mr X found the Council’s planning enforcement position on the Site unacceptable. From Mr X’s perspective, there was unauthorised use of the Site, which was increasing and causing planning harm to his living conditions. Mr X wanted the Council to control and regulate use of the Site.
26. However, we are not an appeal body. And we do not seek either to resolve every disputed issue between councils and complainants or to secure responses to all a complainant’s queries. Our role is to consider whether there is evidence of fault in how councils reach their decisions. Without evidence of fault, we cannot question a council’s decision however strongly a complainant may disagree with it (see paragraph 4 of this statement). So, this statement does not, and does not need to, address every issue and detailed point raised in the party’s correspondence. My investigation focussed on the three bullet points set out at paragraph 1 of this statement, which arose from the Council’s decision to take no planning enforcement action against the Site.

Failure to properly deal with Mr X’s concerns

27. The correspondence showed Mr X had long been concerned about the Site and the Investigation was not the first the Council had carried out into its use. After the Council closed the Investigation, S, for Mr X, raised concerns and complaints about that enforcement decision and use of the Site. And, at the second and final stage of the Council’s complaints procedure, S’s Letter had set out four remaining concerns. The Council’s Letter responded to S’s Letter. Mr X was not satisfied with that response as he then came to the Ombudsman,
28. In dealing with the complaint, the Council asked its planning enforcement team to further consider Mr X’s concerns. This led the Council to carry out another enforcement investigation. Opening a further enforcement investigation into the Site was a substantive and significant step for the Council to take. The Council recognised it did not make its first visit to the Site within the 20 working days target in the 2015 Policy. The Council explained it was then temporarily prioritising cases following the COVID-19 lockdowns when it had not carried out site visits, which had led to a backlog of enforcement cases. It had publicised its then priority approach to enforcement investigations in local papers and on its website. Only top priority cases had time limits under the temporary published procedure. Mr X’s case was not a top priority case, but it had written to S about site visit restrictions during 2022 and visited the Site within seven weeks.
29. The Council’s further enforcement investigation included steps reasonably expected in considering alleged breaches of planning control (see paragraph 19). And, overall, I saw no fault in the Council’s further enforcement investigation. In reaching that view, I recognised Mr X did not consider the Council properly engaged with him. However, planning enforcement investigations do not normally include close and continuing contact with the person reporting a possible breach of planning control. Here, there was contact with Mr X as the Council said it met with him during its further enforcement investigation. The Council also considered Mr X’s information about the Site. And the Council told Mr X and S about its enforcement decisions.
30. Having carefully considered the Council’s responses to S and Mr X, I did not find they fell below acceptable administrative standards. The Council’s letters provided substantive and reasonable responses to issues raised by S. The Council’s Letter also referred to the paragraphs from S’s Letter and responded to the four issues. The Council’s Letter included that, as it found no breaches, it could not consider how use of the Site impacted Mr X and his home. Overall, I found no fault in how the Council dealt with Mr X’s concerns and following complaint.

Failure to follow previous advice about use of the Site

31. One of the four issues in S’s Letter concerned the Council’s interpretation of the Certificate.
32. The Certificate referred to a use class (see paragraph 12) as the lawful planning use for part of the Site. The Certificate’s wording had not changed since its grant. However, activities on that part of the Site had changed. The Council said activities on application for, and grant of, the Certificate, and those now taking place, were within the use class in the Certificate. So, it found no material change of use or, therefore, breach of planning control on that part of the Site covered by the Certificate.
33. Mr X and S found the Council’s position unacceptable. S pointed to what the Council had said about the lawful use of the Site after it granted the Certificate. The Council had not explained its inconsistency in now saying different uses, which had an adverse impact on Mr X’s home, were authorised by the Certificate.
34. I recognised Mr X’s concern about the Council’s seemingly inconsistent comments about the lawful use of the Site covered by the Certificate. However, the Council had to consider the activities taking place during its enforcement investigations. The evidence showed the Council acted correctly, by investigating how the Site was used. Having done so, it was for the Council to decide whether the recent activities had materially changed the planning use of the Site and breached planning control. The Council appeared to give the wording of the Certificate its plain and ordinary meaning. And it found the recent activities did not materially change the use but fell within the use class in the Certificate. I saw no evidence of fault in how the Council processed the matter and, without evidence of fault, I could not question its decision (see paragraph 4).

Failure to seek legal advice

35. S’s concern about the Council’s failure to seek legal advice linked to the concern about interpreting the Certificate. In summary, S considered the Council should take legal advice from an experienced planning lawyer or specialist barrister. The advice was to ensure the Council was correctly interpreting the Certificate in saying the recent activities on the Site were lawful. In summary, the Council, referring to the qualifications and experience of its planning enforcement officers, said it did not consider such legal advice necessary in this case.
36. Taking legal advice remained an issue on completion of the Council’s complaints procedure because S and the Council held differing views about the need to do so. It was for the Council to decide if it sought legal advice. And, here, having considered S’s query, the Council was entitled to say it found no need for legal advice. I found no evidence of fault here.

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Final decision

37. I completed my investigation finding no fault in how the Council responded to Mr X’s concerns and complaint about its Investigation enforcement decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman