Summary: Ms X complained on behalf of a residents’ association that the Council failed to take planning enforcement action to stop unauthorised activities and structures at a nearby site. The Council was entitled to wait on the outcome of a planning application before deciding whether to take enforcement action. However, the Council took too long to decide the application, causing residents a period of uncertainty. The Council should apologise to the residents’ association.

The complaint

1. Ms X complained on behalf of a residents’ association that the Council failed to take planning enforcement action to stop unauthorised activities and structures at a nearby site. They say it has impacted on the landscape and on residents’ amenity from the unsightly appearance, unpleasant smells, noise disturbance and traffic.

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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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How I considered this complaint

4. I considered evidence provided by the residents’ association and the Council as well as relevant law, policy and guidance.
5. The residents’ association and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning enforcement

6. 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.
7. 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.
8. 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.
9. 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)

Time limits for enforcement

10. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:

• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

What happened

11. Ms X represents a residents’ association (the association) for residents’ who live near a business with planning permission for storage. Several years ago, the owner of the site submitted a planning application to change the use of the site to allow extra industrial activities on the site.
12. The association submitted a petition to the Council. The association said the owner was already carrying out unauthorised large-scale stacking storage, and industrial activities on the site. They added the owner had erected two buildings without planning permission. The association asked the Council to take enforcement action and refuse any retrospective planning application to regularise the activity on the site.
13. The Council responded to the petition. It said it did not consider the stacking storage to be a breach of the existing planning permission. It added there was also evidence the storage activity was over ten years old, so the Council could not take any action regardless. The Council said it would investigate the unauthorised industrial activity but was currently considering a planning application which, if approved, would regularise the activity. It said it would consider whether to take enforcement action if the application was refused.
14. The association complained to the Council. They said it had failed to stop unauthorised activity on the site which had led to increased noise and traffic. In its complaint response the Council reiterated its position the storage was not a breach of planning and that it was still considering a planning application to regularise activity on the site. It said it had visited the site and found no evidence to support taking enforcement action. It said it would review its position once it had decided the planning application. The association complained to the Ombudsman.
15. The Council refused the planning application nearly two years after the site owner submitted it. It then re-opened its enforcement case and issued a planning enforcement notice.

My findings

16. The Council reviewed the association’s concerns and decided not to take immediate enforcement action. It explained why stacking storage was permitted and why it could not act even if it weren’t. For the added industrial activities, the Council decided to wait until the outcome of the planning application before deciding whether to take enforcement action. Planning enforcement is discretionary, and this is a recognised method of enforcement. The Council was not at fault.
17. While the Council was entitled to wait until the outcome of the planning application, it took almost two years to decide the application. This was fault. I cannot determine the injustice of the delay on residents, as enforcement action is still ongoing. However, the delay has caused residents a period of frustration for which I have recommended a remedy. It is open to the association to return to the Ombudsman once the Council has concluded its enforcement action.

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Action

18. Within one month of the final decision, the Council has agreed to apologise to the resident’s association for the frustration caused by its delayed consideration of the planning application. 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.
19. The Council should provide us with evidence it has complied with the above actions.

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Decision

20. I find fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman