Summary: Mr X complained the Council did not take adequate enforcement action against a business next to his home. We have found no fault with the Council who acted quickly and efficiently in response to Mr X's reports of alleged breaches.

The complaint

1. Mr X complained the Council has not taken adequate enforcement action against the owners of a business next door to his property. He said the problems associated with the business have been ongoing since the Council approved an extension to the premises in 2015.

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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. 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 complained about events which began in 2015. I consider that there are no exceptional reasons why Mr X did not bring his complaint to us sooner. I also consider that information related to events which occurred nearly 10 years ago would be unreliable. I have decided not to ‘disapply’ the 12 month time restriction set out in paragraph 3.
6. Mr X brought his complaint to us in April 2024. I have investigated from April 2023. This is 12 months before Mr X brought his complaint to us. I have not investigated beyond April 2024.

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How I considered this complaint

7. I have considered Mr X’s complaint and all the supporting evidence he has submitted. I also spoken to him about his complaint.
8. I have also considered the Council’s response to Mr X and to my enquiries.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation and guidance

Planning enforcement

10. 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.
11. 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.
12. 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.
13. 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)

Section 34 Notice

14. As part of the Environmental Protection Act 1990, Section 34 lays out the duty of care individuals and businesses have when disposing of waste, alongside the steps they should take to ensure it is disposed of properly.
15. There is a legal responsibility (Section 34 of the Environmental Protection Act 1990) on a business to:
• Make sure their waste is stored correctly and does not escape their control.
• Only give their waste to an authorised person (a waste disposal company that can legally take it).
• Make sure a written record of the waste is kept every time the waste is passed to a waste disposal company.
16. Councils have powers to give a notice to a business, under section 34 of the Environmental Protection Act 1990 and Regulation 35 of the Waste (England and Wales) Regulations 2011. The notice will ask for the business to give us records and copies of:
• written descriptions of their waste
• waste Transfer Notes
• receipts

to explain where their waste has been taken for recycling or disposal.

What happened

Background

17. Mr X lives next door to a business.
18. In 2015, the Council granted planning permission for the business to retain a single storey side and rear extension.
19. Over the past 10 years Mr X has contacted the Council about issues related to the business.
20. I have investigated the period between April 2023 and April 2024 for the reasons mentioned above.

Waste issues

21. In July 2023, Mr X contacted the Council. He reported that the commercial bins used by the business were overflowing. The Council visited the site and issued the owner of the business with a Section 34 notice. The Council required the business to provide waste transfer notes. The business complied and the Council, satisfied with the outcome, closed the case. The Council notified Mr X.

Highways issues

22. In August 2023, following a report from Mr X, the Council’s highways team visited the business. Mr X had reported that the business was carrying out unlicensed works on the public highway which left dangerous spillages. The Council did not witness the alleged breach but spoke to the business owner to remind them of the terms of the planning permission. The Council responded to a similar report in April 2024 but did not witness any issues.
23. Mr X also raised the issue of missing bollards that the business had allegedly removed. The Council determined the business had removed the bollards to allow vehicle access to its property. The Council replaced the bollards and spoke to the owners. The Council said it continues to monitor the site regularly to ensure the bollards remain intact.

Planning issues

24. In February 2024, Mr X reported alleged planning breaches carried out by the business. The Council visited the site and established that breaches had occurred. The Council wrote to the business and told them to rectify the breaches. The business complied with the Council’s requirements.
25. The following month, the Council wrote to the business about the planning conditions set out in the 2015 permission. These related to operational hours and the location of works.
26. The Council said that its planning enforcement case is still open, and it is monitoring activities on the business site.

My findings

27. Mr X is very unhappy with the activities taking place at the business next door to his home. The Council determined the business had breached planning and other controls. The Council took immediate and effective action in response to these breaches. The Council continues to monitor the business and the activities taking place there.
28. Although Mr X is dissatisfied with the Council’s enforcement action, there is no fault.
29. The Council took quick, proportionate action in response to Mr X’s reports. As enforcement action is discretionary, it is the Council’s decision what level of action to take. I cannot question its decisions if they were made correctly. I am satisfied the Council followed the relevant procedures when reaching its decisions. I have found no fault here.

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Final decision

30. I have completed my investigation. I have found no fault with how the Council handled Mr X’s reports of alleged breaches of planning and other controls at the business next to his property.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman