Summary: We will not investigate this complaint about the Council for allegedly failing to take enforcement action in response to a breach of planning law. This is because the evidence shows the Council is monitoring the situation and is actively considering its legal powers to take enforcement action. The Council has not ruled out taking enforcement action and is waiting on future events. There is insufficient evidence of fault to warrant an investigation.

The complaint

1. The complainant (Mr Y) complains the Council is failing to take enforcement action relating to an alleged breach of planning consent. In particular, he says a neighbouring landowner has changed the use of a farm from agricultural to light industrial without planning permission from the Council and this is resulting in unlawful activities. Mr Y also says the Council is failing to communicate with him about this matter and respond to his concerns in a timely manner.
2. In summary, Mr Y says the alleged fault with communication and the lack of enforcement action is a significant concern to him. As a desired outcome, he wants the Council to start communication with him a timely manner and to not shy away from dealing with breaches of planning law by failing to take appropriate enforcement action.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify this.

(Local Government Act 1974, section 24A(6), as amended, section 34(B)).

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How I considered this complaint

4. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

5. The Council is not under any legal duty to take enforcement action in response to a breach of planning control, even where a breach has been clearly determined. The law says a local authority may take enforcement action in response to a breach where it considers it expedient to do so. Therefore, enforcement action is a discretionary power of the Council. I cannot therefore find fault with a decision to not take formal enforcement action in circumstances where the Council has properly considered alleged breaches and its powers to take action.
6. The evidence shows the Council carried out an initial visit to the site in March 2023 and a Planning Contravention Notice (PCN) was served on the landowner in September 2023. As the Council has informed Mr Y, a PCN is not a formal enforcement notice, however it requires the landowner to provide the Council with information regarding the use of the land. The Council says the information was received by the Council the following month.
7. Mr Y then told the Council that new developments had occurred at the site, following which a further visit was subsequently made by the Council’s planning officer. The Council confirmed in an email to the Complainant on 29 November 2023. Further, it has explained to Mr Y that its position is that the landowner had until the end of March 2024 to either remove the unauthorised development at the site or submit a planning application. The Council explained that a failure to do so will result in it considering taking formal enforcement action. The Council has said its planning officer continues to monitor the situation.
8. In my view, the above action shows the Council is collecting information about the determined breaches and is currently monitoring the site. The Council is therefore actively considering its enforcement powers and not fettering its discretion. We are unlikely to find evidence of fault on this basis. With respect to alleged poor communication by the Council, it has informed Mr Y that it is monitoring the situation. As outlined, enforcement action is discretionary and so just because a breach of planning consent has been identified does not mean the Council is taking action which Mr Y needs to be kept continuously informed about. I accept it would be good practice for the Council to inform Mr Y about its intended approach and from the evidence I can see this is what it has done. We are therefore also unlikely to find fault with respect to this part of the complaint.

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Final decision

9. We will not investigate this complaint. This is because the Council has considered its legal powers to take enforcement action. It has not ruled out taking enforcement action and is waiting on future events. There is no evidence of fault.

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Investigator's decision on behalf of the Ombudsman