Summary: X complained the Council failed to take planning enforcement action against their neighbour. We found fault because the Council could not take enforcement action it had intended. This was because it failed to serve papers to a court within time. The Council has agreed to our recommendations and will now review its working practices, policies and procedures to reduce the likelihood of the same fault happening again.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to take planning enforcement action in relation to a building opposite their home.

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The Ombudsman’s role and powers

3. 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 must decide whether we should suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(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 considered documents from its planning files, including the site location plan and the case officer’s delegated report on a certificate of lawfulness application.
6. I have also taken account of our guidance on remedies, which can be found here.
7. I gave the Council and X an opportunity to comment on a draft of this decision and I took account of the comments I received.

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What I found

Planning enforcement powers

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.

Certificates of lawfulness

10. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant.
11. This may happen where:
• the Council has already granted planning permission for the use or development;
• a development is ‘permitted development’ and so deemed acceptable because it complies with limits in regulations;
• the development was unlawful, but the time limit for enforcement actions has now passed.

What happened

12. X and others complained about their neighbour who lives on the other side of the street. Nearly a decade ago, the neighbour constructed a single storey building in the rear of their garden. The Council sent a planning contravention notice asking about the use of the building. The neighbour responded to say the building was not used as a separate dwelling.
13. Later, the Council attempted to take enforcement action because it believed a breach of planning control had been concealed. However, the enforcement action did not continue. The Council explained to X this was because of an error, as the Council had failed to serve papers to the magistrate’s court in time.
14. In 2023, the Council considered an application for a certificate of lawfulness from the neighbour. The Council approved the application because the evidence persuaded it the building had been used as a separate dwelling for more than four years. Because of this, the time limit for enforcement action had passed.
15. X complained to the Council, which accepted it was at fault. The Council apologised for its error.
16. X would like the Council to restrict further development on the land. X said parking on the street is affected by what has happened.

My findings

17. The Council intended to take formal enforcement action, but it did not do so. This happened because it did not serve relevant papers in time. This is fault.
18. When we find fault we have to decide whether it caused a significant injustice to the complainant. X lives across the street from the building, and it is mostly obscured from view by a hedge. I do not consider the building causes a significant injustice to X. The Council has already apologised for its fault, and this is a sufficient remedy for X.
19. X is concerned there may be further unlawful development, and they would like the Council to ensure this does not happen. If the neighbour wants to further develop their land, it could be possible that planning control is required. Councils cannot predetermine or prevent applications and we cannot recommend remedies for speculative injustice.
20. X said parking is affected on the street. The planning authority does not control on-street parking.
21. It is possible a similar fault could happen again, so I recommended the Council carries out a review to check whether any improvements are necessary. The Council agreed to this recommendation.

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Agreed action

22. The Council has agreed to my recommendation to review relevant practices, policies, and procedures to avoid the likelihood of similar fault happening again. This will happen within three months from the date of this decision.
23. The Council will provide us with evidence it has complied with the above actions.

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Final decision

24. I found fault that might happen again. I have completed my investigation because the Council accepted my recommendation.

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Investigator's decision on behalf of the Ombudsman