Summary: Mr X complained that the Council has failed to take adequate action in respect of a large kennel erected in his neighbour’s garden without planning permission. He says he has suffered distress because of the daily noise and frustration at the lack of action. We found no fault on the Council’s part.

The complaint

1. Mr X complains that the Council has failed to take adequate action in respect of a large kennel erected in his neighbour’s garden without planning permission and in relation to the noise caused by the dogs. He also says the Council has failed to keep him informed. As a result, he has suffered distress and frustration and has been unable to enjoy his garden.

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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. 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

3. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
4. 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

Legal and administrative background

5. Councils can take enforcement action if they find planning rules have been breached. However, they should not take enforcement action just because there has been a breach of planning control.
6. 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.
7. 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.
8. 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 59)

Key facts

9. In March 2023 Mr X raised concerns with the Council about a large dog kennel erected in his neighbours’ garden. He said they were breeding dogs for sale and did not have planning permission. He also said the dogs were causing a noise nuisance.
10. A planning enforcement officer, Officer A, responded on 12 April explaining that officers were seeking legal advice and the matter was under investigation.
11. In May and June environmental health (DH) officers carried out noise monitoring from Mr X’s property.
12. On 15 June Officer A wrote to Mr X explaining that the planning enforcement team had served a planning contravention notice (PCN) on his neighbours requesting information to ascertain how the kennels were being used. The officer explained that the neighbours had provided information in response to the PCN which was being reviewed by officers to decide whether there had been a breach of planning control.
13. Planning enforcement officers considered the response to the PCN and liaised with EH officers. They decided that, given the number of dogs being kept in the kennel, it was no longer being used incidental to the dwelling. So, planning permission was required.
14. Officer A wrote to Mr X in July explaining this and said the Council had asked the neighbours to submit a planning application. He explained that, if an application was submitted, it would be considered on its planning merits. If no planning application was received, enforcement officers would consider whether it was expedient to take formal enforcement action.
15. The neighbours advised planning officers that they would reduce the number of dogs in the kennel to avoid the need to apply for planning permission.
16. In October Officer A sent an email to Mr X explaining that, from a planning perspective, there was not a set number of dogs which would trigger the need to apply for planning permission. He explained that it is a matter of fact and degree depending on the circumstances on the land. He said that, as a general rule, and supported by case law, the number of dogs which trigger the need for planning permission was six so the Council had asked the neighbours to apply for planning permission. However, they had instead opted to reduce the number of dogs down to five and were in the process of rehoming a dog to achieve this. The officer explained that, once this had been done, officers would carry out a further visit and, if the number of dogs was confirmed to be five, this would resolve the matter from a planning perspective.
17. In November Mr X complained to the Council. It said it was unable to investigate his complaint because the enforcement case was still alive.
18. In December Officer A wrote to Mr X again in response to his request for an update. He confirmed the neighbours were still actively seeking to rehome their dog and he had written to them to request an update.
19. In January and February 2024, the Council’s EH officers again installed noise monitoring equipment in Mr X’s property.
20. Mr X requested an update. Officer A responded confirming that EH officers had recently revisited the site and planning officers were reviewing findings from their visit. He confirmed he would provide an update once this had been completed.
21. In March Mr X attended the Council’s offices where officers played him the noise recordings and advised him there was insufficient evidence to demonstrate that a statutory nuisance existed.
22. Later in March Mr X complained to the Council again. It responded saying it was satisfied the enforcement process had been carried out in accordance with its statutory role and responsibilities. It said officers had investigated the matter but did not consider it proportionate to begin formal enforcement proceedings as the neighbours were making reasonable efforts to reduce the number of dogs. It confirmed officers were not considering serving an enforcement notice but would continue to monitor the situation and liaise with the EH team.
23. The planning enforcement case remains open and the Council is continuing to monitor the situation.

Analysis

24. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at whether there was fault in how the Council made its decision. If we decide there was no fault in how it did so, we cannot question whether the decision was right or wrong.
25. The General Permitted Development Order (GPDO) 2015 (as amended) permits any building or enclosure required for a purpose incidental to the enjoyment of a dwelling house. This includes “the keeping of poultry, bees, pet animals, birds or other livestock for the domestic needs for personal enjoyment of the occupants of the dwelling house”.
26. So, the keeping of animals in a garden and the erection of buildings and enclosures to house them does not require planning permission provided the level of activity is incidental and complies with all the conditions set out in the GPDO.
27. It is a matter for the Council to determine, having considered the facts of the case and current case law, whether planning permission is required and whether it is expedient to take formal enforcement action.
28. Enforcement action is discretionary, and the Council must consider Government guidance which states that it should act proportionately. This means it must take all relevant factors into account when reaching a decision on whether to take formal action. Councils may instead decide to take informal action, such as requesting the submission of a planning application, so they can formally consider the planning issues.
29. I am satisfied planning enforcement officers properly considered the concerns raised by Mr X. They issued a PCN to obtain information from the neighbours and liaised with EH officers who visited the site. Officers were entitled to invite Mr X’s neighbours to submit a planning application for the kennels. They were also entitled to decide not to take formal action because they were satisfied the neighbours were taking steps to reduce the number of dogs on the land. It was a matter for officers’ professional judgement how much time to allow them to do so.

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Decision

30. I find no fault on the Council’s part.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman