Summary: On behalf of Mr X, Ms Y complained the Council acted incorrectly when dealing with reported planning breaches. Ms Y said this caused Mr X distress. We have found the Council at fault for delays in updating Ms Y and Mr X. The Council has agreed to apologise for any injustice caused by the delays and remind its staff to ensure members of the public are kept updated on progress when it is investigating reports of planning breaches.

The complaint

1. On behalf of Mr X, Ms Y complained the Council:
• Has not enforced the planning breaches reported by Mr X and his representatives. These breaches include an access road, shipping containers, boundary wall and deer fencing.
• Provided incorrect information and changed its position relating to storage containers and an access road.
• Took 10 months to conduct a site visit.
• Did not properly investigate the stage one and two complaints submitted on behalf of Mr X.
2. Ms C says this has caused Mr X stress as he was misled into purchasing a property with inadequate access, and the shipping containers impact on his enjoyment of his property. Ms C would like the Council to apologise to Mr X, provide a further response to his complaint and pay compensation for his distress, time and trouble.

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The Ombudsman’s role and powers

3. 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)
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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How I considered this complaint

5. I discussed the complaint with Ms Y and considered the evidence she provided.
6. I made enquiries of the Council and considered its response.
7. Ms Y and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Legal and administrative background

Planning enforcement

8. 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.
9. 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.
10. 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.
11. 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)
12. 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.
13. 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.
14. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• There was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach.
• There was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach.
• For any other breach, no enforcement action may be taken after 10 years from the date of the breach.

Council complaints policy

15. The Council’s complaints policy sets out a two stage complaints process.
16. At stage one of the complaints process the Council should acknowledge the complaint within five working days. The Council will aim to reply to the complaint within 10 working days of acknowledging the complaint. If the Council requires further time to provide a response it should let the complainant know and provide a date by which a full response will be issued.
17. At stage two of the complaints process the complainant should receive a response from a manager within 20 working days of the Council receiving the complaint. If the Council cannot provide a response within 20 working days it should make the complainant aware and provide a date by which a full response will be issued.

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What happened

18. The following is a summary of key events. It is not intended to be a complete chronology.
19. Mr X bought land on a development site in 2017. The site had planning permission to build 3 properties.
20. Between August and October 2022 Mr X’s first representative, Ms B, reported breaches of planning control to the Council. The reports detailed:
1. Unauthorised shipping containers.
2. An unsafe access road which Ms B said should have been completed prior to Mr X moving into his property.
3. Failure to complete repair works at the boundary wall.
4. The unauthorised erection of deer fencing.
21. The Council responded to Ms B’s initial report five days later and advised a named officer, H, would respond within one month.
22. H completed a site visit less than two weeks later in September 2022.

Shipping containers

23. Following the site visit in September 2022, H contacted Ms B in November 2022 and told her the Council believed some of the shipping containers were not being used as part of the current development. H said the Council would ask the site owner to remove any unused containers.
24. H contacted the site owner’s representative, Mr C, in November 2022 to ask when the site owner would remove the unused containers. Mr C responded in January 2023, advising H the containers were storing construction materials.
25. H contacted Mr X’s second representative, Ms Y, in February 2023. H explained the site owner confirmed he was using the shipping containers to store construction materials which were needed for the ongoing development work. Therefore, the Council would not be taking enforcement action at this stage.
26. Ms Y responded to the email, advising the shipping containers had been in place for years and the site owner was not using them to store construction materials. Ms Y said the Council had previously advised the containers were not permitted and should be removed. H told Ms Y she would arrange a site visit in March to look into this matter further.
27. Between April and May 2023, Mr X and Ms Y contacted H three times for an update. H responded to Ms Y in May 2023, advising that several of the containers were in use, however the Council had asked for the removal of unused containers.
28. H completed a second site visit in June 2023. Following this visit H asked the site owner to remove two of the shipping containers. Mr C confirmed the site owner would remove these containers from the site.
29. H wrote to Ms Y in August 2023 and told her the Council had asked for the removal of two containers. The officer advised Ms Y she would complete a further site visit in September to ensure the site owner had removed the containers.
30. For the remaining shipping containers, the Council told Ms Y it had aerial photographs which confirmed the containers had likely been in place for more than 4 years. This meant they were immune from enforcement action.
31. The Council had also determined the containers did not impact public amenity and formal action would not be in the public interest. Therefore, the Council did not plan to take further enforcement action against the remaining containers.
32. In its stage one complaint response the Council told Ms B it had asked for the removal of a further container, and it would take formal action if this container was not removed.
33. H completed a site visit in September 2023 and confirmed the site owner had removed the shipping container.

Site entrance and boundary wall

34. Following the site visit in September 2022, H confirmed that although a previous permission from 2013 had included a time stipulation, the site owner was completing work to the access road and boundary wall repairs in accordance with an updated planning permission which did not include any time stipulation.
35. H contacted Mr C following the site visit and he said the site owner acknowledged construction of the entrance had not been completed. He told the Council the work had been started, but due to construction traffic and damage caused during construction works, completion had been delayed. Mr C assured the Council work on the entrance would be completed quickly.
36. The Council remained in contact with the site owner and his representative regarding the repair work to the boundary wall and access road.
37. H completed a site visit in September 2023 and confirmed the boundary wall repair work had been completed.
38. The Council has told us it completed a site visit in July 2024, and it was noted that the access was in place and the boundary wall has been repaired. The wooden gate has not yet been hung but this is due to the ongoing development work taking place at the site.

Deer Fencing

39. In September 2022 Ms B reported a breach of planning control to the Council. This report detailed the instalment of unauthorised deer fencing.
40. H wrote to Ms B in November 2022 and requested further information to allow her to look into the deer fencing. Ms B responded two days later and provided the information H had requested.
41. In December 2022 H wrote to Mr C asking for the deer fencing to be removed from the area within 28 days. H told Mr C a new application should be submitted within 28 days if there was an intent to change the landscaping scheme.
42. In January 2023 the site owner confirmed to the Council he was planning to submit an application to vary the landscaping condition. The application was not submitted until June 2023, but it was approved following the correct process and full consideration by the Council.

Complaint Handling

43. Ms B submitted a stage one complaint to the Council in September 2023. The Council responded with a full stage one complaint response 8 working days later.
44. Ms B escalated the complaint to state two at the end of September 2023.
45. The Council issued a stage two response at the end of October 2023, twenty days after receiving the state two escalation.
46. The Council did not address two of the points Ms B raised in the stage two complaint, so Ms Y contacted the Council at the end of October and requested the Council answer these points. The Council responded in early December and provided a stage two complaint addendum which addressed these points.

My Findings

Enforcement action

47. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing significant injustice to the individual complainant.
48. Before it made its decisions not to take planning enforcement action against the shipping containers, access road, boundary wall and deer fencing, the Council:
• Considered Mr X’s allegations.
• Investigated the situation on the site.
• Considered its powers.
• Sought advice.
• Remained in conversation with the site owner.
• Decided not to take enforcement action.
49. This is the planning enforcement process we would expect and so I find no fault in the way the Council made its decisions.
50. The Council completed the first site visit in September 2022, within 2 weeks of the breaches being reported. It completed further site visits in June 2023, September 2023 and July 2024 to ensure ongoing compliance with planning permissions. There is no evidence the Council took 10 months to complete a site visit and there is no fault in the Council’s actions in relation to the site visits it completed.
51. There were occasions when the Council’s views changed based on information it received. The Council remained in communication with the site owner and his representative and made informed decisions based on up-to-date information.
52. The Council provided its responses to Mr X and Ms Y in accordance with information it had available at the time, so there is no fault in the Council changing its views based on new information.
53. There were occasions when Mr X and Ms Y were told they would receive information, or actions would take place, and this was not completed. This was fault by the Council, and it likely caused Mr X distress and uncertainty.

Complaint handling

54. The Council followed its complaints process and issued a full stage one response within the correct timeframe.
55. The Council did fail to address two of the points raised by Ms Y in her stage two escalation however, it provided an addendum stage two complaint response in December 2023. Although there was a delay in Mr X receiving answers to some of his questions this did not cause Mr X significant injustice as there was no change to the Council’s earlier position.

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Agreed action

56. Within one month of the final decision the Council should apologise to Mr X for the distress and uncertainty caused by the delays in responding to his correspondence and failing to provide timely updates.
57. Within three months of the final decision the Council should remind its planning enforcement staff of the importance of responding to public enquiries and keeping the public updated on any enforcement investigations in a timely manner.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman