Summary: Mr X complained about the Council’s failure to deal with his report of unauthorised development that interfered with the enjoyment of his home. We found avoidable delay by the Council, which it agreed to apologise for, but the delay did not affect the outcome of its planning enforcement investigation.

The complaint

1. Mr X said the Council was failing to deal with his reports about business activities at a residential property near his home that breached planning rules. Mr X said the Council’s failure to act caused distress. And the unauthorised use caused disturbance and damage and was noisy, smelly and polluting. Mr X wanted the Council to take formal action to stop the unauthorised use and demolish an outbuilding used for business purposes.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 X’s complaint covered events dating back to 2020. The evidence showed the Council opened and closed a planning enforcement investigation into the breach of planning control Mr X reported in 2020. A complaint now about the Council’s 2020 enforcement investigation would be a late complaint (see paragraph 3 of this statement). The Council said, after closing its 2020 enforcement investigation, it received no reports about business activities at the residential property until summer 2023. I therefore saw no good reason now to investigate a complaint about events in 2020, including the Council’s enforcement investigation. So, my investigation concerned events following the alleged breach of planning control Mr X reported in summer 2023.

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How I considered this complaint

6. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared Council information with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

7. Development without the necessary planning permission will be a breach of planning control. Councils should investigate reported breaches but enforcement action is discretionary. And Government guidance says councils should act proportionately in responding to suspected breaches. So, councils should not take enforcement action just because there has been a breach.
8. As enforcement action is discretionary, where councils find evidence of a breach, they may decide to take informal action or not to act at all. Informal action might include negotiating improvements or seeking an assurance from the developer to voluntarily end the breach.

What happened

9. A member of Mr X’s family, through a third party, reported business activities at a residential property (‘the Property’) near their home. The Council opened a planning enforcement investigation and told the third-party. The third party told Mr X’s family member about the investigation.
10. About six weeks later, Mr X’s family member sent the ­Council closed circuit television (CCTV) recordings showing the Property and information from a company website. (Mr X said this information showed a link between business use at the Property and the company). The Council said its planning enforcement officer spoke to Mr X on the telephone about the information. The officer asked Mr X if he would sign a witness statement so it could use the information as evidence in any formal enforcement action it might take. The Council and Mr X hold differing views about the Council’s ability to use the information. The Council said Mr X declined to sign a witness statement. Mr X said he did not refuse consent for the Council to use his family’s information.
11. The Council said as it could not use the information from Mr X’s family without a signed witness statement, it tried to gather evidence of any breach of planning control at the Property. A Council planning enforcement officer visited the Property the day after receiving the information from Mr X’s family. The officer viewed the Property from the outside on three separate occasions during the day. The officer saw no business activities or deliveries and heard no noise from the Property.
12. Mr X contacted the Council on three separate days the following month and reported business activities at the Property. A Council enforcement officer spoke to Mr X after the first contact, when Mr X had reported business activities over the preceding weekend. Mr X also told the Council that evenings and weekends were the best time to find business activities taking place.
13. About three months later, Mr X complained to the Council. Mr X said the Council had failed to act despite his clear evidence showing business use of the Property. And activities the day before showed the business use was “back in full swing”. Mr X said the Council needed to demolish an outbuilding at the Property to stop the business use.
14. The Council replied saying its enforcement officer had visited the Property but found no evidence of business use. It had also found no evidence to link use of the Property to the third-party company. The Council said it understood Mr X might not want his information used in formal action. However, without his witness statement to support that information, it did not have sufficient evidence there was a breach of planning control. The Council asked Mr X to continue recording when business activities took place to help it identify the best time for its enforcement officer to visit. The Council said it did not uphold Mr X’s complaint as the alleged breach of planning control remained under active investigation.
15. The correspondence that followed revealed the differing views about using Mr X’s family’s information for formal enforcement action. Mr X said the Council had used his alleged lack of consent as an excuse for not acting. And its officers did not work in the evenings or at weekends when most business activity took place. Mr X said the Council should not rely on watching the Property but gather evidence from, for example, websites. Mr X repeated that he had offered his information to the Council but it refused to accept it. He had also offered use of his own home for the Council to watch the Property.
16. The Council said Mr X’s comments showed he was willing for his information to be used. It therefore asked him to send all the relevant information he held and was willing to have disclosed for the enforcement investigation for it to assess. Meanwhile, the Council had made four further site visits but finding no evidence of a breach and not getting a response from anyone at the Property.
17. The Council made a further site visit and, still unable to contact anyone at the Property, then sent a letter to that address. A site visit with the Property occupier was arranged and took place. The Council said it found no evidence to support the business use reported by Mr X. However, it warned the occupier the alleged business use needed planning permission, which it was unlikely to grant. The Council did not close its enforcement investigation but kept the case open for further monitoring. (By August 2024, the Council had made a further six site visits, viewing the Property from outside and finding no evidence of business use.)

The Council’s comments to the Ombudsman

18. The Council said Mr X’s allegations of business use suggested there might be a serious breach of planning control needing investigation. Mr X did not respond to its request for all his information for assessment (see paragraph 16) and it never secured a signed witness statement so it could use any of the information. Despite extensive investigation, it had not found evidence of a breach sufficient to take enforcement action. And it had not heard from Mr X since it met with the Property occupier (see paragraph 17). As the investigation had continued for a year without finding evidence of a business use, it now intended to close the case and would tell Mr X of its decision.
19. The Council said its enforcement officer had spoken to Mr X on the telephone (see paragraph 10). And its complaint responses to Mr X had explained why it had not taken enforcement action. But it accepted it could have communicated more with Mr X during the investigation to explain it had not found evidence of a breach but was continuing to monitor the Property.

Consideration

20. Mr X said the Council failed to deal with business use at the Property that caused disturbance and damage and was noisy and polluting. The Council said it had extensively investigated the business use reported by Mr X but had not found evidence of a breach of planning control. And Mr X had not signed a witness statement so it could use his information to support any enforcement action.
21. The evidence showed the Council had investigated Mr X’s report of a breach of planning control. A planning enforcement officer had spoken to Mr X about the matter and made several visits to watch the Property (see paragraphs 11, 16 and 17). The officer had also met the Property occupier and issued a warning about the alleged business use (see paragraph 17). These were steps I would reasonably expect a council to take in investigating such an alleged breach of planning control.
22. Mr X’s family had provided information about use of the Property. And Mr X and the Council held differing views on the ability to use that information (see paragraphs 10 and 15). However, I saw no objective verifiable evidence Mr X agreed to sign a witness statement allowing the Council to use his information to support any formal enforcement action.
23. In seeking its own evidence of a breach of planning control, the Council monitored the Property and arranged a visit with the occupier (see paragraphs 11, 16 and 17). After a year monitoring the Property it had not found evidence of the business use alleged by Mr X. The Council said it therefore intended to end its investigation finding no breach (see paragraph 18). I had no reason to doubt the Council would write to tell Mr X of its decision. And given the steps taken by the Council to investigate the breach reported by Mr X, I saw no fault in how it had reached its decision to close its investigation.
24. However, the Council accepted its communication with Mr X during the investigation could have been better. I agreed. There were unanswered communications from Mr X (see paragraph 12). There were also gaps in the early stages of the Council’s enforcement investigation. I recognised the Council was told about the alleged breach of planning control at the start of the main summer and school holiday. However, I saw no evidence the Council acted on that report for six weeks (see paragraphs 9 and 10). The evidence also suggested little action by the Council in the four months between its first site visit and receipt of Mr X’s complaint (see paragraphs 11 and 13). I therefore found there was avoidable delay by the Council, which was fault.
25. The failure to respond to his contacts would no doubt have been distressing for Mr X. And the lack of information about progress with the enforcement investigation before he complained, would have added to that distress. I therefore found the Council’s inadequate communication and avoidable delays caused Mr X injustice. However, I did not find the fault I identified caused the greater injustice of affecting the Council’s substantive enforcement investigation and decision, after a year, to close the case finding no breach.

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Agreed action

26. To put right the fault and resulting injustice I identified at paragraphs 24 and 25, the Council agreed to send Mr X a written apology. The apology was for the frustration caused by its poor communications and avoidable delay at the start of its enforcement investigation. The apology should be sent within 20 working days of this statement. The Council should consider our guidance on remedies, which sets out our expectations for effective apologies.
27. The Council should provide us with evidence it has complied with the agreed action set out at paragraph 26.

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Final decision

28. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendation at paragraph 26.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman