Summary: Mrs T complains the Council failed to take enforcement action regarding a change of use to a premises near her home. She says the noise and disruption significantly affects her amenity. The Council failed to update Mrs T regarding its enforcement decisions. The Council has agreed a remedy.

The complaint

1. Mrs T complains about how the Council has dealt with reports of breaches of planning control and noise issues at a site near her home. Mrs T says new buildings have been built and the use of the site has changed without planning permission. She says the unauthorised developments have a significant impact on her home because of noise, fumes and anti social behaviour.

Back to top

The Ombudsman’s role and powers

2. 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)
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).
4. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).

Back to top

What I have and have not investigated

5. Mrs T first reported noise and potential planning breaches in mid 2021. She complained to the Ombudsman in February 2024. I have not investigated the Council’s actions from 2021 because Mrs T’s complaint is late, and I do not consider there are good reasons to investigate. However, I have investigated matters from June 2022 as Mrs T’s complaint to the Council in October 2023 was about the Council’s delays from June 2022, and she has regularly pursued the matter since autumn 2022.

Back to top

How I considered this complaint

6. I have discussed the complaint with Mrs T and considered the information she provided. I have made enquiries of the Council and considered the comments and documents it provided. Mrs T and the organisation had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Legislation and guidance

7. 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.
8. 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.
9. 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.
10. 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).

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.

The Council’s planning enforcement policy 2012

12. The Council’s enforcement policy sets out the steps and timescales when dealing with an enforcement action case. It says that officers should keep complainants informed of progress at all stages (appendix 2). When the Council decides whether a planning breach has occurred, and decides whether it should take action, the Council should notify complainants within 10 working days.
13. The policy states in appendix 3 (key timescales) that the Council should make a decision on 60% of cases within 3 months. Where a decision has not been made in 3 months, a senior officer will review the case to see whether action should or should not be taken.

What happened

14. Mrs T and other residents living near the site had complained in 2021 regarding noise and disruption from the site which they said had been a farm. They said that there had been an unauthorised change of use and there were new buildings on the site which did not have planning permission.
15. The Council opened a planning enforcement case in late 2021. It advised Mrs T that it would keep her informed of any significant progress and the outcome of the investigation. The Council visited the site.
16. In June 2022 the Council’s planning enforcement officer and environmental health officer met with residents including Mrs T. The Council said it would consider whether there had been a planning breach. Mrs T and other residents said the Council gave them the impression they would send them a copy of their report. However, the Council says it is not standard practice to share a copy of a report of its consideration of enforcement action.
17. In July the Council issued a PCN to the site owner. It asked for information about the potential changes of use and requested information about buildings which appeared did not have planning approval. The Council did not update Mrs T.
18. Mrs T called the Council and it appears that she was aware it was still considering enforcement action. Mrs T continued to seek updates via her councillor and then via her MP.
19. The Council says that the case was complex and there were many factors to consider. It said that between July 2022 and April 2023 it reviewed the owner’s response to the PCN, considered responses from the owner’s agent and liaised with environmental health and other Council departments.
20. In January 2023 the Council provided an update to Mrs T’s MP. It confirmed it had issued a PCN and it had received a response. It said it had sent a report to senior officers.
21. In March 2023 the Council advised the MP that it required further information regarding the use of the site. It apologised for the delay. It said it needed to ensure it made a sound decision based on all the facts.
22. In April 2023 the Council’s planning enforcement officer submitted a report to its panel recommending that it was not expedient to take enforcement action. This was on the basis that:
• There was already an established ongoing agricultural and light industrial mixed use of the site.
• Even if the use of the site had changed more recently, the current use was an acceptable use of the land. This took account of the National Planning Policy Framework (NPPF) provisions concerning greenbelt diversification.
• The Council’s own policies allowed these uses where there was no unacceptable loss of amenity caused by odour, noise or other problems. The Council considered there was no significant impact to result in a substantial change in the character of the area.
• The Council’s environmental health officers had not found there was statutory nuisance caused by the impact of the site.
• The Council stated an unauthorised building was, on the balance of probability, now beyond the four year time limit for enforcement action.
23. The Council’s panel agreed the officer’s recommendation.
24. In late May, the Council sent a copy of the report to Mrs T’s MP.
25. In June 2023 the Council emailed Mrs T and advised that the outcome of its investigation was that it was not expedient to take action. The Council said its environmental health officers would consider Mrs T’s reports of excessive noise.
26. In July 2023 the Council installed noise monitoring equipment in Mrs T’s home. The Council asked her to provide diary sheets regarding the noise and its impact. Mrs T submitted her diary sheets in July.
27. In mid July Mrs T’s MP asked the Council if she could share its report with Mrs T. The Council confirmed that she could in early August.
28. The Council considered the noise recordings and Mrs T’s diary notes in August. It noted there was early morning noise from vehicles.
29. In October 2023 Mrs T’s solicitor complained to the Council regarding its delay between June 2022 and August 2023 when Mrs T finally received a copy of its decision of April 2023. They also complained of inaccuracies in the Council’s report recommending the Council should not take enforcement action. They said:
• The owner’s claims regarding the previous use of the site were not accurate. The use had changed an intensified.
• There was a residential flat on site which was let long term rather than used occasionally by an agricultural worker as claimed.
• There was noise from panel beating and car mechanics.
• HGV’s delivered skips to the site day and night.
• Planning permission was required and the Council was wrong in saying there was no impact on residents’ amenity because they were now badly affected by noise, fumes and disruption.
• The owner had not kept to agreements to restrict the times that noise and deliveries were allowed.
• The Council had carried out noise monitoring, and Mrs T had kept further diary notes in September, but the Council had not updated Mrs T as promised.
30. In October 2023 the Council replied to the solicitor. It did not uphold the complaint but said it would investigate the occupation of the flat, the new business, and deliveries of skips. The Council had not issued an abatement notice regarding noise because it had not found there was statutory nuisance. The Council said it believed it had investigated and taken action in accordance with its policy, legislation and guidance.
31. The Council visited the site unannounced and considered the issues Mrs T raised. The Council reviewed its April 2023 decision. It did not find there was sufficient evidence of planning breaches. Its report said that the noise from the site was for environmental health to consider.
32. In December 2023 the Council’s environmental health officer wrote to Mrs T and other residents apologising for the delayed response. She explained the Council’s planning enforcement team had taken the lead and the environmental health team had also carried out a noise investigation. The planning enforcement officer decided in April 2023 it would not be expedient to take enforcement action.
33. The environmental health officer noted the noise from the site was in the early morning, and there was also general noise and noise from taxis at night. The Council carried out announced and unannounced visits to the site. The Council installed noise monitoring equipment but did not consider that noise from vehicles was excessive or unacceptable for the location and type of premises. It was not a statutory nuisance as described within the Environmental Protection Act 1990. The site did not have planning restrictions which could be used to control the activities, and as a farm site, there would have been 24 hour comings and goings.
34. The site owner had responded regarding the issues raised and taken action informally to mitigate the impact. The Council confirmed that it had closed the case. It explained residents could take their own private action under the Environmental Protection Act 1990 (section 82).
35. In its response to our enquiries the Council said that it did not consider there were undue delays in dealing with the case. It said that change of use investigations are often very complex and can take a long time. It also said that planning enforcement is under resourced and there are difficulties recruiting officers.
36. The Council said that it was not its normal practice to provide copies of its reports or enforcement officer decisions to complainants.

Analysis

37. We are not a planning appeal body. Our role is to review the process by which councils make planning decisions. We look for evidence of fault causing injustice to the complainant. We cannot question the professional judgment of planning decision makers where this was not affected by fault. Planning enforcement is discretionary, and it is up to councils to decide whether they need to take enforcement action.
38. I have not found fault in the Council’s decision making. The Council visited a number of times and took account of relevant factors, planning law and guidance. The Council considered the owner’s responses and information from residents as well as its own research. As I do not consider there is fault here, I cannot question the outcome.
39. I have not found evidence of fault in the Council’s environmental health noise investigation. The Council visited the site and carried out noise monitoring. While I note Mrs T expected an update in September 2023, the Council says it did not receive diary sheets to consider.
40. At present I consider there were delays in progressing the investigation. I have considered the period from June 2022, but note the Council was aware of the alleged planning breach from November 2021. The Council did not make a decision until April 2023. This delay was fault. While I note that issues were complex and took time to consider, there appear to have been be gaps where there was no progress. In particular there was no apparent substantive action between September 2022 and March 2023 when the Council said it required further information. The delay caused Mrs T injustice because she experienced frustration waiting for an outcome.
41. At present, I consider the Council failed to provide appropriate updates to Mrs T in accordance with its policy as set out in paragraphs 12 and 13. I note the Council said it does not send copies of its reports but I consider it should have advised Mrs T regarding the issue of the PCN, and advised in a brief summary of its decisions in April and November 2023 that it was not expedient to take action. The Council’s failure to update Mrs T is fault and caused her frustration and time and trouble chasing a response.

Back to top

Agreed action

42. I recommend that within one month of my decision the Council
• Apologises to Mrs T for the frustration caused by its delays in progressing the investigation and investigation and its failure to update her. The apology should be in accordance with our Guidance on making an effective apology
• Reminds enforcement officers that they should provide brief updates to complainants about key progress and decisions in accordance with the Council’s policy.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

44. The Council has agreed an appropriate remedy for the injustice caused by its fault. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman