Summary: Mr J complained that the Council failed to take action regarding a breach in planning conditions. Mr J says this caused stress and led to damage to his home. There were significant delays by the Council causing Mr J anxiety and uncertainty. The Council agreed to remedy this by updating Mr J and making a symbolic payment for the injustice caused.

The complaint

1. Mr J complains the Council have delayed taking enforcement action against his neighbour, who he considers has breached planning conditions. Mr J says this has caused stress, and may affect his home and his ability to move. Mr J would like the Council to investigate his concerns and take enforcement action.

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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. 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

4. Mr J complained to the Ombudsman in February 2024 about the Council’s lack of planning enforcement action from June 2021.
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. Mr J’s complaint is late because he complained more than 12 months after he first became aware of the claimed fault. However, I consider Mr J has pursued the matter regularly since June 2021, and provided evidence when the Council requested it in 2022 and 2023. However, the Council did not progress its investigation. I consider there are good reasons to investigate from June 2021.

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How I considered this complaint

7. I considered evidence provided by Mr J and the Council as well as relevant law, policy and guidance.
8. Mr J and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

9. 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.
10. 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.

Planning Enforcement Options

11. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already decided necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
12. However, 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.

The Council’s enforcement policy

13. The Council’s enforcement policy sets out its priorities for investigation. It states the Council will not take action to rectify a breach unless there is an unacceptable effect on the environment and on the public. The policy states the Council will aim to carry out a site visit within 15 working days of receipt of the complaint, subject to prioritisation. Potential damage to a listed building or a tree covered by a tree preservation order will be visited within a shorter time scale.

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What happened

14. In 2021 Mr J contacted the Council regarding a development next to his home. He said that the developer had not complied with a planning condition attached to the planning approval, about providing a drainage scheme.
15. Mr J said the developer’s failure to comply with the condition and other works may cause damage to his home. He said a soakaway was too close to his home.
16. The Council wrote to Mr J six months after his report. It said enforcement investigations had been affected by delays during the first and second Covid lockdowns. It apologised and asked Mr J to say whether he still wanted to proceed and send it photos.
17. Mr J replied and sent the Council photos and a diagram showing the location. Mr J chased a response three times over the next eight months. However, the Council did not respond.
18. The Council sent a further standard letter in October 2022 asking if he wanted to proceed and asking for photos of the alleged planning breach.
19. Mr J replied this was the second time he had received a letter asking if he wanted to proceed and for photos. He sent further photos.
20. As Mr J had not heard anything, he complained in March 2023.
21. In April 2023 the Council replied and said it noted the conditions had not been fully discharged. It said its planning enforcement action team would investigate this. It would consider if there had been a breach and whether it was in the public interest to take enforcement action. It said the Council’s power to take action was discretionary.
22. The Council partially upheld Mr J’s complaint because it accepted he had reported the issue nearly two years earlier. It said that it had a high number of enforcement cases and so it was unable to respond to all the enquiries it received in accordance with its enforcement policy.
23. In July 2023 an enforcement officer wrote to Mr J and asked for photos of the reported breach.
24. Mr J replied the Council had taken too long to respond. However, he sent further photos as requested. He also explained where the soakaway was. He said it did not meet the requirements of the planning conditions regarding drainage.
25. The Council confirmed it had opened an enforcement case. In August 2023 an officer visited the site, but it appears he inspected the wrong area and did not find the soakaway Mr J was complaining about.
26. The Council sent a letter to the developer advising it was considering potential non compliance with a planning condition. It asked for further information and evidence of compliance with the planning condition relating to the drainage scheme. It attached a photo relating to a soakaway, but this was not the one Mr J had complained about.
27. The developer submitted a new planning application for a garage. The Council consulted with residents about the plan. Mr J commented on the plan and raised his concerns regarding the drainage for the new plan not being compliant with the planning conditions. He also stated it would increase the negative impact on his home because the nearest soakaway was not compliant and inadequate.
28. Mr J sent further information to the Council regarding the position of the soakaway and his calculations showed it was not adequate in capacity.
29. The Council considered consultee comments that said the developer should provide a plan of the existing and proposed drainage on the site.
30. During the next year the developer submitted further plans, but the Council was not satisfied the drainage issues were properly addressed and it did not make a decision to approve the plan.
31. In January 2024 Mr J complained the soakaway near his home was not shown on the plans, did not comply with the planning condition or building regulations, and was not adequate for the amount of surface water. He said it posed a risk to his property. He said he had advised where the soakaway was but the Council failed to find it. Mr J asked the Council to investigate and take action.
32. Mr J did not receive a response and so he complained to the Ombudsman in February 2024.
33. In response to our enquiries the Council said it
• Accepted the soakaway did not appear to comply with the conditions as it was not on plans, but it needed to visit to consider whether it was unacceptable.
• Tried to carry out a site visit from June 2024 but had been unable to arrange this until October 2024.
• Proposed at the site visit that the soakaway near Mr J’s home be removed, and alternative actions taken to prevent surface water affecting his home.
• Negotiated with the developer in order to achieve an appropriate drainage plan.
• Sought resolution through the enforcement investigation and through the planning application.
34. Mr J disagreed with the revised plans and in his view the Council should have separately issued a breach of condition notice and taken appropriate enforcement action.
35. The Council has now suggested an alternative plan and conditions which it considers would address the issue regarding the drainage scheme.

Analysis

36. The Council has explained that the enforcement case is not straightforward, and there were several factors that it must take into account when deciding whether to take enforcement action.
37. The Council has not yet taken enforcement action. We cannot say whether any enforcement action the Council may propose will be successful or that it would have been successful in ensuring the developer resolved the breach earlier.
38. I have found fault by the Council causing injustice to Mr J due to
• significant delay in opening an enforcement investigation. The Council took too long to acknowledge Mr J’s report and, while it asked for information from him it did not consider it, simply repeating the request six months later.
• the Council not carrying out a site visit until August 2023. This was more than two years after Mr J reported the potential breach. The Council’s enforcement action policy says it will visit the site within 15 days of the report.
• The Council did not identify the soakaway that was affecting Mr J at the visit in August 2023, despite Mr J telling it the location several times.
• The Council not apparently identifying the soakaway until June 2024 and noting it was potentially not compliant with conditions.
• The Council failing to respond to Mr J’s complaint in January 2024.
39. These faults caused injustice because they led to frustration, anxiety and uncertainty for Mr J.

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Recommended action

40. I recommend that within one month of my final decision the Council
• Apologises to Mr J for the distress and uncertainty caused by its delays and failure to progress its enforcement investigation. 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.
• Pays Mr J £500 as a symbolic payment to remedy the injustice due to its faults.
41. Within two months of my decision I recommend the Council
• Updates Mr J on any further action it proposes to take or decisions it has made and the reasons for such
• Creates an action plan to reduce the delays in enforcement investigations.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. I find fault causing injustice. The Council agreed our recommended actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman