Summary: X complained about the Council’s failure to investigate their allegation of a breach of planning control. We found fault because the Council took too long to respond to X’s allegation and did not deal with the issue in accordance with its published policy. We completed our investigation because the Council agreed to our recommendations to remedy the injustice caused by the fault and to consider changes that might avoid it happening again.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council has failed to investigate an allegation X made about a breach of planning control on their neighbour’s land.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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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How I considered this complaint

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint and discussed it with a planning manager. I looked at aerial photos of the site. I read the Council’s planning enforcement policy.
6. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning enforcement powers

7. The government has issued policy practice guidance on planning enforcement. It says effective planning enforcement is important because it needs to:
• tackle breaches of planning control which could cause an unacceptable impact on the amenity of an area;
• maintain the integrity of the decision-making process; and
• help ensure the public accepts the planning decision-making process.
8. 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 determined 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.
9. However, 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.

The Council’s enforcement policy

10. The Council has its own enforcement policy, which was available on its website when I began my investigation. It has since been removed. The Council sent me a copy of the policy, so I can consider it for this decision.
11. Once the allegation is received and a file opened, the first meaningful part of the investigation is a site visit. The policy included time targets for how quickly the Council would carry out site visits to consider planning enforcement allegations. The more serious the harm, the sooner the visit should happen.
12. For high priority cases, which includes demolition of listed buildings, dangerous buildings, and damage to protected trees, the Council aimed to visit within 2 days.
13. For low priority of cases where a breach of planning control causes no material harm, the Council aimed to visit between 15 – 20 days from when the allegation is made.
14. During the course of my investigation, the Council removed its planning enforcement policy and replaced it with a notice, which says that due to budgetary constraints, the Council cannot process cases within timeframes set out in its planning enforcement policy. The Council says that, for the moment, it will deal with high priority cases where there is potential for:
• harm to human health from dangerous structures;
• development that affects land stability;
• damage to protected trees;
• substantial damage to listed buildings; and
• flooding caused by developments.

RTPI report for government on planning enforcement resourcing

15. The Royal Town Planning Institute is the professional body for town planners. It is responsible for maintaining professional standards and acts as a voice for the planning profession. It promotes good practice, policy development and research into planning issues.
16. In November 2022, following a research request from the government, it issued a report called, Planning Enforcement Resources. The research included survey questionnaire responses from 133 planning enforcement officers. The report found that:
• 89% of their councils had case backlogs – these are cases which remain open but no meaningful investigation is taking place;
• 80% said there were not enough officers to carry out the workload;
• 73% struggled to recruit planning enforcement officers; and
• 71% reported delays caused by the planning appeals process.

What happened

17. X owns a house that is let to a tenant. X noticed a damp problem in their house. They believed it was caused by rainwater run-off from a car port on their neighbour’s land. X thought the car port was built in breach of planning controls and so at the beginning of this year, they reported the matter to the Council’s planning enforcement department. X also sent the Council photos of the development to help it consider the allegation.
18. The Council responded to say the case had been allocated to an enforcement officer who would update X throughout the course of the investigation. This did not happen, and so X contacted the Council to ask what was happening.
19. About 4 months after X first contacted the Council, the enforcement officer wrote to X to say that as this complaint had been classified as a ‘non-priority’ case, which meant the Council would not begin its investigation. The Council said it had a very large number of cases to deal with and it did not have the resources to progress new cases as it received them. The Council said it will contact X when it was able to begin its investigation.
20. I spoke to a planning manager, about what had happened. The planning manager told me:
• The Council could not decide X’s allegation because it had not investigated it or visited the site, but based on the information seen so far, it was likely to be a low priority case. At the moment, in response to problems caused by the backlog and limited resources, the Council was having to work to different standards than those set out in its enforcement policy. As a ‘non-priority’ case, its investigation had not progressed at all. While the Council intended to investigate X’s allegation, at the moment it was difficult to say when or even if this would happen.
• The current backlog was over 800 cases. The Council had 2 enforcement officers and no senior officers. Because of this it was impossible to deal with cases in a timely manner. The situation had been made worse by staff absences and other difficulties. At times, there had been no enforcement officers available.
• To deal with the backlog and progress incoming cases, the Council could need as many as 5 or 6 more qualified officers. If the backlog was controlled, the department could probably cope with incoming work if it had 2 full-time enforcement officers and a senior enforcement officer.
• Budgetary cuts had led to enforcement officers losing their work phones and having to use personal mobile phones to carry out their duties. This was causing officers concerns about potential breaches of data protection law.
21. X said that since they complained to the Council, the neighbour has fitted gutters to the car-port’s roof, and this has reduced the impact of rainwater run-off. X accepted that apart from the problem caused by rainwater, the car-port structure did not cause a significant impact on them. However, X believed it was built in breach of planning controls and so the planning authority should have acted more quickly to deal with it.

My findings

22. 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.
23. It is now more than 9 months since X first contacted the Council with their allegation and the investigation has still not begun. The Council has explained it cannot work to its enforcement policy standards, and that this was because of inadequate resources that have led to staff shortages and very large case backlogs.
24. This is fault. The Council’s planning enforcement function has now reached a situation where it cannot deliver its service as it intended. I want to make it clear that I have found no evidence of fault on the part of individual officers. The most likely cause is prolonged and systemic inadequate resources.
25. I realise how difficult it will be to reverse the situation the Council finds itself in, but clearly change is needed and the underlying cause of the fault needs to be addressed. It is likely that, without significant improvements, the service failure will continue to cause significant injustice to others. Because of this, I will ask the Council to make plans to deal with the backlog and repair its planning enforcement service.
26. I will also recommend an apology to X for the disappointment and frustration the service failure will have caused.

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Agreed action

27. To remedy the injustice caused by the fault I have found, the Council has agreed to:
1. apologise to X for the disappointment and frustration it has caused. The Council will consider our guidance on remedies as it relates to effective apologies. This will happen within 1 month from the date of our final decision;
2. develop a plan on how it might reduce its backlog of enforcement cases. The Council will consider how other authorities have dealt with this problem. The review will be completed within 3 months from the date of our final decision;
3. review the resources and staffing levels that are necessary to provide the level of planning enforcement provision and the number of new cases it expects. This will happen within 3 months from the date of our final decision;
4. report the findings of its reviews to its relevant oversight and scrutiny committee. This will happen within 1 month from the date the reviews are completed.
28. The Council will provide us with evidence it has complied with the above actions.

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Final decision

29. I found evidence of fault that caused an injustice to X and might happen again. I have completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman