Summary: Mr X complained that the Council failed to pursue enforcement action regarding development next to his home. There was fault by the Council due to delay and lack of communication. It has agreed a remedy

The complaint

1. Mr X complains the Council has failed to take enforcement action regarding development on a neighbouring site despite having issued enforcement notices and the Planning Inspectorate having dismissed appeals on these matters. He says this has caused him stress and anxiety

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The Ombudsman’s role and powers

2. 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)
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)

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What I have and have not investigated

4. Mr X complained about the Council’s failure to take planning enforcement action for over 10 years.
5. 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)
6. I consider Mr X’s complaint is late as he complained in May 2024, and it appears he has been aware of the claimed fault by the Council for more than 12 months.
7. I am considering matters from April 2023 to May 2024. I do not consider there are good reasons to investigate matters before April 2023.

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How I considered this complaint

8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

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 60).

Planning Enforcement Options

14. 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 2023

15. The Council’s policy refers to the following:
16. 4.1. The Council's aim is to support responsible development. In common with all planning authorities and national guidelines, the Council’s approach is always to seek to resolve an issue without having to take formal action if possible. Where necessary, this may involve lengthy negotiations and correspondence which become part of a process that demonstrates that when the Council does opt for prosecution it is indeed the last resort.
17. 4.51. We will keep individuals up to date with progress, when there is anything significant to report, or otherwise periodically to reassure them that the matter remains under investigation and advise what we are doing.

4.7. Any actions sought or taken will be reasonable and proportionate to the proven breach, in accordance with government advice. We will seek the co-operation of responsible persons through negotiation. We will, however, take a firm line where co-operation is not forthcoming, and where the nature of the breach merits it, consider prosecution if it is in the public interest to do so. Consideration will be given to the nature of the breach, whether it is continuing,

the harm caused and the cost of pursuing a prosecution against the benefit to

be gained.

18. 4.8. We will inform individuals of the outcome of any investigation, explaining our reasons for the chosen course of action.
19. Appendix A4.1 of the Council’s policy states that if an enforcement notice is not complied with “the Council can decide whether or not to prosecute, which if successful, can incur significant fines or imprisonment.”

What happened

20. The Council had previously issued two enforcement notices to the owner. These related to:
• The change of use of the land from a landscape gardening nursery business to a mixed use of landscape gardening nursery and holding depot for materials and for the recycling of building waste and storage of non landscape materials.
• The unauthorised development due to the laying of hardstanding
21. The Council required the owner to cease the unauthorised use, remove recycling and building waste materials, and remove the hardstanding.
22. The owner appealed the enforcement notices to the Planning Inspectorate, but it dismissed the appeals.
23. In early April 2023 Mr X contacted the Council regarding the site. He said the Council had not taken action regarding the site owner failing to comply with the enforcement notices, and the land was becoming an eyesore because the owner was storing materials which were unauthorised.
24. In May the Council replied it had visited the site, and it did not consider there was storage of unauthorised materials on the site. However, it agreed the hardstanding which the owner should have removed, remained. It said it would seek its own legal advice about the next actions, and it would update Mr X.
25. In July 2023 Mr X chased the Council for an update as it had not responded.
26. The Council replied it had a meeting with its legal team planned in mid August.
27. In early September 2023 Mr X asked for an update as the Council had not contacted him.
28. In mid September 2023 the Council replied that it needed to make further enquiries. It said it would hold another meeting in a week.
29. Mr X contacted the Council at the end of August for an update. He said the Council’s lack of action had led to the problem getting worse.
30. Mr X chased the Council again in late November. The Council replied the same day it had had a meeting and would update Mr X shortly.
31. Mr X chased a response five times in January 2024 as he had not received an update from the Council. He said the owner used the site as a dumping ground.
32. In early February the Council replied. It said it had carried out a further site visit and would update Mr X shortly after discussing this.
33. Later in February the Council responded to Mr X that it had noted new materials for hardstanding on the site and new hardstanding had been laid which required planning permission. The owner agreed he would apply for planning permission. The Council would not take enforcement action while an application was pending.
34. Mr X complained to the Council he was frustrated it had not taken action for several years. In his view the Council was allowing the owner to avoid the consequences of his unauthorised actions. He said the Council should not allow a retrospective planning application when it had already issued enforcement notices which were not overturned at appeal.
35. In March 2024 the Council replied to Mr X’s complaint. It said the site had a complex history. It agreed it had not acted on the previous enforcement notice but it was now receiving the Council’s full attention. It apologised it had not pursued the enforcement notices to full effect following the dismissal of the appeals.
36. The Council said it had now sought legal advice. It had invited a further retrospective planning application in line with current practice for the site. It said it would notify Mr X when this was received. And it would continue its enforcement investigations in line with its planning enforcement policy (May 2023).
37. Mr X complained further asking how the Council could invite a retrospective application when it already had an enforcement notice from years earlier, which had been dismissed at appeal. He believed this contravened planning laws. In his view, the site was becoming a waste transfer site.
38. In late April 2024 the Council replied to Mr X’s complaint that
• Inviting a retrospective planning application did not contravene the provisions of the Town and Country Planning Act 1990.
• If the owner submitted a retrospective application, it would allow the Council to carry out a fresh consideration of all relevant issues.
• It needed to consider whether the identified breaches would have been covered by the original enforcement notice.
• it would ensure that the planning position was assessed appropriately in line with the latest Local Plan adopted in 2013, which was issued after the enforcement appeals.
• It would allow for a thorough review of the planning history over an extended period of time, which could give rise to a range of other varied material planning considerations.
• The Council could still take formal action if the planning harm identified was such this was required.
• Government policy required local planning authorities to take a proportionate approach to planning control, negotiating where possible.
• As it was several years since it issued the notices, the officers involved no longer worked for the Council. This made its recent enquiries more difficult. It was confident its planned approach would address the stated planning harms.

Analysis

39. Mr X raised his initial concerns regarding the lack of action by the Council in March 2023. He received an initial response in May, but the Council failed to update Mr X apart from saying it was seeking legal advice. Mr X sought an update repeatedly, but the Council often failed to respond.
40. It was not until March 2024, ten months later, that it provided a response regarding the reasons for its current actions. It did not fully explain the reasons for its delays. While seeking legal advice and considering complex issues can take time, it appears that there were long periods with no action by the Council.
41. I consider the Council’s delay and lack of communication were fault, particularly given the long delays prior to Mr X raising his current concerns. It did not act in accordance with its own policy. This caused Mr X frustration and uncertainty.
42. The Council has explained its current position. Mr X believes the Council should take action, as it has issued enforcement notices. But having considered the latest actions in relation to the site, legal advice, and its enforcement policy, the Council has invited a retrospective application so that it can fully consider the matter. I do not find fault in this. If it does not approve the application the Council could consider enforcement action such as pursuing prosecution if appropriate.

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Action

43. I recommend that within one month the Council
• Apologises to Mr X for the frustration and uncertainty caused by its delay and poor communication 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.
• Pays Mr X £200 for the injustice caused to Mr X as a result of its faults.
• Provides Mr X with an update every two months.
44. I recommend that within two months the Council identifies the reasons for its delay and poor communications, and sets out a plan to address this with timescales. The Council should update the Ombudsman with details.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice. The Council has agreed my recommended actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman