Summary: Mr D complains the Council delayed seeking compliance with a planning Enforcement Notice. We have not found evidence of fault by the Council and have completed the investigation and not upheld the complaint.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council delayed seeking compliance with a planning Enforcement Notice for a neighbouring site.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
4. 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

5. Mr D refers to issues with the neighbouring site going back to 2015. I have advised him that whilst I cannot look back over nine years, I have extended my discretion to consider events from the start of 2020 because that is when the Enforcement Notice became valid. I am looking at matters up to April 2024.
6. Mr D also referred to delay by the Court Service. I explained this is not something the Ombudsman can consider.

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How I considered this complaint

7. I have considered the information provided by Mr D. I asked the Council questions and carefully examined its response.
8. I shared my draft decision with both parties and considered Mr D’s comments.

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What I found

What happened

9. At the end of December 2019, the Council served an Enforcement Notice (EN) on the Owner of a site neighbouring Mr D. The EN took effect from 17 January 2020. It required the Owner demolish structures on the site and lower the land level. It gave the Owner 12 months to comply. On 13 July the Owner submitted a retrospective planning application for the site to the Council. The Council decided the application on 13 October and refused planning permission.
10. On 14 November the Owner appealed to the Planning Inspectorate. A final decision from the Planning Inspectorate was issued on 22 October 2021, it dismissed the appeal. On 8 November the Council wrote to the Owner. Now the Planning Inspectorate had dismissed the appeal the Owner needed to comply with the EN. The Council requested a schedule of works. On 2 December the Owner told the Council that personal issues had caused delays, but a schedule of works would be provided by January 2022.
11. On 2 February 2022 the Council wrote to the Owner as it had not received the schedule of works. It said this should be sent immediately and it could pursue prosecution. The Council received the schedule of works later that month setting out a proposed timeframe. The Council contacted the Agent for the site and advised the timeframe was not acceptable. It needed a date for the demolition works to commence. It had further contact with the Owner and their builder. On 2 March it notified the Owner and Agent that works must commence by 1 April and be completed by 1 October.
12. On 6 April the Agent told the Council works had started and a Senior Enforcement Officer (SEO) visited the site to confirm work was taking place. At the end of July, the Council was told works had mainly been on external areas at the site. An SEO visited the site on 1 September and noted a structure had not been demolished. The deadline to comply with the EN ended on 1 October. On 13 October the Council wrote to the Owner because they had not complied with the EN. The Council confirmed it intended to pursue prosecution. The case was subsequently referred to the Court Service.
13. In March 2023 the Council was told the ownership for the site may have changed. On 10 April the former Owner told the Court they no longer owned the site. The Council subsequently made Land Registry checks and confirmed the details for the new Owner. On 12 April the Council wrote to the new Owner advising they had to comply with the EN and had until 12 October to do the works. The Council sent reminders to the new Owner in July and August. On 16 October the new Owner asked the Council for longer to carry out the required works at the site. The Council corresponded with the new Owner and agreed they could have an additional six months if works commenced soon. In February 2024 the Council confirmed that works were underway at the site. I asked for an update in June and the Council told me that demolition work was underway but not complete. It received regular updates from the new Owner and had taken account of their circumstances and compliance. Because the demolition was progressing the Council did not consider it expedient to pursue a prosecution against the new Owner at present.

What should have happened

14. The Council (as the planning authority) can take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. In deciding whether it is expedient to initiate enforcement action, the Council should take account of different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between the protection of amenity and permitting development which is acceptable. Where the breach involves carrying out development without permission, the Council may serve an EN if it is expedient to do so. An EN can be issued where it appears to the Council there has been a breach of planning control and it is expedient to take formal action. The EN should specify the alleged breach, and what steps are required to remedy the breach. There is a right of appeal to the Planning Inspector against an EN. It is an offence not to comply with an enforcement notice, once the period for compliance has elapsed, and if there is no outstanding appeal. When deciding whether to progress case to formal prosecution the Council can take account of the level of co-operation from the owner.
15. If the Council receives a retrospective application (which seeks to regularise a development that has already been undertaken) it must put enforcement action on hold until the application is decided. Also, the Council cannot pursue enforcement action whilst an active Planning Inspectorate appeal is ongoing.

Was there fault by the Council

16. The evidence shows me the Council has followed the correct process in this case.
17. Mr D says the Council delayed progressing enforcement at the neighbouring site. There were periods where the Council could not take enforcement action meaning that from July 2020 to the end of October 2021 was out of the Council’s control because the Owner submitted a retrospective planning application and then went to the Planning Inspectorate. The appeal was dismissed on 22 October 2021 and soon after the Council wrote to the Owner about the need to comply with the EN. When it did not receive the schedule of works by the promised January 2022 date it pursued the case with the Owner and the Agent about an acceptable timeframe and set a new deadline of 1 October. The Council was not obliged to make regular checks at the site because it could not take any further formal action against the Owner for non-compliance until the deadline expired. Once the deadline had passed in October the Council confirmed it would seek prosecution against the Owner. I consider the Council did try to progress the case, particularly after October 2021. I know it was not at the pace Mr D wanted but the evidence shows me the Council followed the correct process and did not act unreasonably.
18. In respect of the Council’s actions once ownership of the site changed, I also have not found evidence of fault. Once the Council was notified about the new Owner it took prompt action to contact them and explain the EN. When the EN was not complied with in October 2023 the Council did have the option of seeking prosecution. However, it was correct to consider if that action was expedient, likely to succeed and the level of co-operation for the new Owner. The Council had the right to allow the new Owner longer to comply with the EN if the works were being progressed. Again, I appreciate that Mr D would like the site to be resolved at a quicker pace and I understand his frustration. However, the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether Mr D disagrees with the Council’s decision.

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Final decision

19. I have completed the investigation and not upheld the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman