Summary: Mr X complained the Council took too long to respond to a breach of planning control at a development near his house and lack of enforcement action. The Council was at fault which caused Mr X distress, frustration, confusion and avoidable time and trouble. The Council will take action to remedy the injustice caused to Mr X by the fault and to avoid it happening again in future.

The complaint

1. Mr X complained the Council took too long to respond to a breach of planning control at a development near his house and a lack of enforcement action.
2. Mr X also complained about poor Council communication and complaints handling.
3. Mr X said the Council caused him distress, frustration and time and trouble.

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The Ombudsman’s role and powers

4. 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)
5. 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.
6. 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

7. I read Mr X’s complaint and supporting documents and spoke to him on the telephone.
8. I spoke to a Council planning enforcement officer. I considered the Council’s comments about the complaint, the supporting documents it provided and the case officers report.
9. I considered the Council’s policies, and relevant law and guidance as set out below. I considered our guidance on remedies provided on our website.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

Planning

11. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations say they should not.
12. Planning considerations include issues like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
13. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Planning Enforcement

15. Councils can take enforcement action if they find planning controls have been breached.
16. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

Council’s enforcement policy

17. The Council’s planning enforcement policy was published in April 2023. It said it would acknowledge complaints within five working days. The policy said it was not practical to give a running commentary on what was happening’ but it would be ‘clear and open about progress on cases, but the Council must have regard to data protection legislation’. The Council policy said ‘more complicated serious breaches can take a significant amount of time to progress. In many cases the Council need to allow the person being complained about time to respond to requests for information and resolved the breach by negotiation’ so ‘whilst it will try to keep in touch, if the Council hasn’t provided an update for a while, it may be no significant progress has been made’. The enforcement policy said it would prioritise each potential breach of planning control into three categories, red, amber and green. If a breach of planning control had taken place the Council may decide to conduct a site visit to investigate further. The enforcement policy also said it would negotiate and use of enforcement powers was discretionary. Any action taken would be proportionate and have regard to the public interest test and expediency test.

Council complaints

18. The Council follows a two-stage complaint procedure:
• Stage One: it would acknowledge the complaint within three working days. The relevant service area would respond within 10 working days. Where that was not possible it would let the complainant know. For more complex issues it would respond within 20 working days.
• Stage Two: if a complainant remained dissatisfied, the Council would undertake an independent review and aim to provide a response within 20 working days.

What happened

Lack of enforcement action

19. More than five years ago, the Council approved a planning application for a development on land close to Mr X’s home. Part of the development was required to be used as an area of communal open space, the area is within 20 metres of Mr X’s house.
20. In mid-Summer 2023 Mr X alleged a breach of planning control using the Council’s online form. He said open space approved in the planning permission had not been created but had been fenced off and was used for storage and reuse of building materials by two local businesses. Mr X said when the building material was broken up it caused dust and noise and the additional lorry movements were unsuited to a single-track lane.
21. The Council’s online form said ‘You can be updated once an investigation reaches its conclusion. We can only give notification that an investigation has moved from one stage to another, but not give specific details’. Mr X agreed to receive email notifications when the investigation moved to another stage of the process.
22. Two days later the Council sent Mr X an automated acknowledgement to his planning breach complaint. The Council opened an enforcement file.
23. Between late Summer 2023 and Autumn 2023 Mr X sent the Council three emails with updates including photos of the building material piles. Mr X did not receive a response from the Council.
24. In Spring 2024 a Council enforcement officer emailed Mr X and said they had been allocated his enforcement case and they would respond to Mr X’s concerns. The enforcement officer told Mr X a site visit would be carried out by an officer from a central Council team. Mr X responded and said the builder’s activities continued seven days a week. Mr X said he did not receive a reply.
25. In Spring 2024 the Council explained to the Ombudsman it had a backlog of enforcement cases. It said it had received an increase of planning breach reports, several enforcement cases took a long time to finalise and there were changes in staffing in late 2023. It said it had recruited another staff member and was prioritising the most serious planning breaches in line with its enforcement policy.

Complaints handling – general enforcement enquiry

26. In Autumn 2023 Mr X made a formal complaint to the Council and said:
• his complaint related to the Council’s general lack of transparency and engagement with ongoing planning enforcement cases. He said this was not in line with Council policy which said it would be clear and open about progress;
• there was poor timeliness on progress of the enforcement cases in the Council area and it was not in line with the Council’s policy which said that a large number of complaints were resolved in a few weeks;
• the Council’s method for planning enforcement prioritisation was unclear; and
• he wanted a list of outstanding enforcement cases.
27. The same day the Council sent Mr X an automated acknowledgement and said it would respond to his complaint within 10-working days.
28. Mr X emailed the Council and complained he had not received the Council’s response to his complaint by the 10-working day deadline. A week later Mr X sent the Council a Freedom of Information (FOI) request.
29. Later that month, Mr X contacted the Council again. He said his complaint did not relate to his enforcement case but it was about the Council’s general lack of transparency and communication about enforcement cases in the Council area. Mr X also said the Council had not acted in line with its enforcement policy. The same day the Council apologised to Mr X for the delay in responding to him. The Council said it was not always possible to provide an update when an investigation was on going. The Council also told Mr X a request for information would be dealt with through a FOI request and it apologised if its response was unclear. In early December 2023 Mr X sent the Council a second FOI request.
30. In early 2024 Mr X emailed the Council. He said the Council had still not responded to his request for more enforcement information. The Council responded to Mr X’s FOI request about the number of enforcement cases it had received, and the number actioned and assessed for its area.
31. In Spring 2024 the Council sent Mr X a final complaint response. It said it had already sent Mr X a FOI response on general enforcement issues. Mr X responded and said the Councils FOI response showed the Council was not complying with the timescales and performance stated in the Council’s policy and the lack of detail the Council provided to the public on general enforcement cases.

Complaints handling – Mr X’s enforcement complaint

32. In Autumn 2023, Mr X complained to the Council about the use of land next to his home. He said he reported an enforcement issue in Summer 2023 and had provided the Council with evidence of planning breaches but had only received an automatic response. He said if the Council were open and clear about progress, he should have been informed of the priority rating the Council awarded his enforcement case in line with its enforcement policy and whether and when the landowner had been made aware of his complaint. Mr X told the Council a month later this complaint did not refer to his enforcement complaint but general enforcement enquiries.
33. In early 2024 Mr X raised a new complaint with the Council asking for an update on his enforcement complaint. The Council should have responded within 10 working days but did not do so. Mr X then complained to us.
34. The Council responded to Mr X’s complaint in Spring 2024 and said Mr X’s issues were an enforcement enquiry which the Council responded to and should not have been recorded as a formal complaint. Mr X responded and said he disagreed. He said the Council had not provided him with an update on his enforcement complaint since Summer 2023 and he had not asked for any confidential information.
35. A month later the Council emailed Mr X with an update on his enforcement case and explained an enforcement officer had been assigned to his case.

My findings

Lack of enforcement action

36. 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 a significant injustice to the individual complainant.
37. In mid-Summer 2023 Mr X received an automated response to his planning enforcement complaint. The Council sent this within five working days. This was in line with the Council’s enforcement policy and the Council was not at fault at that point.
38. The Council did not provide Mr X with an update on when an investigation would commence on why the open space had not been built out or if it would commence an investigation into the use of the land by the two local businesses close to his home, creating dust and noise.
39. The Council did not provide Mr X with an update until Spring 2024, 10 months after he first made his allegation, and this was only to tell him that an enforcement officer had been assigned to the case. The Council said this delay was in part due to staff shortages and staff changes. Also, during this time the Council did not respond to Mr X’s updates when he sent additional information and photos.
40. The Council’s delay in taking enforcement action is fault. The continuous noise and dust created by the use of land close to Mr X’s home caused Mr X distress, frustration and avoidable time and trouble contacting the Council.
41. The enforcement investigation about the noise and dust and lack of communal open space is ongoing and the Council has yet to make a decision about the case. We would expect the Council to continue its enforcement investigation without further undue delay. It will keep Mr X updated in line with its enforcement policy.
42. If Mr X remains unhappy when the planning enforcement case has ended, he can come back to the Ombudsman and we may then investigate further whether he was caused a significant injustice by any fault in the decision-making process, including the delay I have found here.

Complaints handling – general enforcement enquiry

43. The Council did not respond to Mr X’s complaint about general enforcement matters in the Council’s area within the 10-working day deadline. The Council explained this was in part because of new information Mr X provided to the Council, saying he wanted information on enforcement cases in the Council area and not on his enforcement case.
44. Though the Council’s delay in responding to this complaint is fault, it was in part due to Mr X’s a lack of clarity in the way he made his complaint. The Council has already apologised for what happened, and I do not consider it necessary to make any further recommendations.
45. The Council gave an FOI response to his enquiries in early 2024. If Mr X remains unhappy about the general enforcement response he should contact the Information Commissioner’s Office (ICO).

Complaint handling – Mr X’s enforcement complaint

46. The Council took six weeks longer to respond to Mr X’s enforcement complaint than the time limit set out in its policy. This is fault. The Council told Mr X it had responded to the enforcement complaint, but that was only an automated response to his complaint from Summer 2023, which confused Mr X.
47. If the Council had responded sooner to Mr X about his enforcement complaint it would have avoided causing unnecessary frustration and confusion.

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Agreed Action

48. Within one month of the final decision the Council will:
1. apologise to Mr X and pay him £100 to acknowledge the distress, frustration, and avoidable time and trouble caused by the fault I found relating to delay in taking enforcement action; and
2. apologise to Mr X for the fault I found relating to complaints handling matters which caused him confusion and frustration.
49. Within three months of the final decision the Council will:

c) consider what has happened and what changes to practice and procedure are necessary to avoid the delay in action and failure to properly respond to complaints and enforcement enquiries in future.

50. The Council will continue its enforcement action without any further undue delay. It will also update Mr X on the enforcement action taken in line with the Council’s enforcement policy.

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Final decision

51. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused and prevent reoccurrence of the faults.

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Investigator's decision on behalf of the Ombudsman