Summary: Ms B complained about the Council’s failure to take effective enforcement action to prevent a breach of planning control on neighbouring land. We found the Council was at fault because it took too long to provide her with feedback and respond to her complaint, causing her frustration. To remedy this injustice, the Council has agreed to apologise to Ms B and remind staff of the need to comply with relevant timescales. We did not find fault with the Council’s enforcement decisions.

The complaint

1. Ms B complains about the Council’s failure to take effective enforcement action against unlawful development and use of agricultural land near her home.
2. She also complains the Council took long to respond to her complaint.
3. She says this has caused significant frustration, adversely impacted on the local habitat and caused her to lose confidence in the planning system.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about, amongst other things, a decision to refuse planning permission
6. 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

7. I have investigated what happened up to August 2024, when Ms B brought her complaint to the Ombudsman.

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How I considered this complaint

8. I considered evidence provided by Ms B and the Council as well as relevant law, policy and guidance.
9. Ms B 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

Relevant law and policy

Planning 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. Councils have a range of options for formal planning enforcement action available to them, including the following.

• 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.

13. 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.
14. Enforcement action is entirely at the discretion of the Local Planning Authority

The Council’s planning enforcement policy (effective up to October 2024)

15. This confirmed government policy that the response to an alleged breach of planning control is discretionary and not every breach justifies taking enforcement action. Formal action would only be taken where the breach causes serious harm. Even then, if action is taken, it must be reasonable in the circumstances, and proportionate to the harm being caused.
16. The Council aimed to provide a response to a written notification of alleged breach within 28 working days of it being registered by the Council.

The Council’s complaints policy

17. This states a manager will investigate and respond within 20 working days. If more time is required the Council will write to the complainant and let them know with an expected response date.

What happened

18. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
19. Ms B’s home overlooks a piece of agricultural land (the Land) owned by Mr D. In 2022, Mr D applied for planning permission to change the use of the Land to allow for development.
20. Whilst the Council was considering this application, Mr D rented the land to Ms P. Over a period of time, Ms P brought several different animals and temporary structures, including caravans, onto the Land. Ms B had reason to believe Ms P was living on site.
21. In August 2023, Ms B reported this to the Council. She believed use of the Land in this way was a breach of the existing planning permission.
22. The Council acknowledged her report and advised her it could take up to eight weeks to make enquiries and respond. The Council failed to respond within this time frame.
23. A Council enforcement officer (Officer C) visited the site in September 2023.
24. In November 2023, Ms B expressed her disappointment about the lack of response and reported further breaches. She told the Council there were now several horses on site and further evidence of ongoing residential occupation.
25. In response, Officer C explained this was not sufficient to evidence Ms P was living on site. Ms B invited Officer C to carry out more surveillance.
26. In January 2024, Officer C carried out a morning site visit where she found evidence of residential use. She issued a Planning Contravention Notice (PCN) to Mr D requesting details of land use.
27. In response, Mr D explained the current land usage by Ms P was only temporary, pending the outcome of his planning application.
28. In March 2024, Ms B made a formal complaint about the Council’s failure to take effective enforcement action.
29. The Council responded in May 2024. It said:

• Mr D’s planning application was unexpectedly refused and, in light of this development, the Council would need to reconsider the expediency of further enforcement action;
• officers attended the site on several occasions and had discussions with Mr D, Ms P and the planning agent;
• previously, Ms P indicated she intended making a planning application to cover her use, but this did not happen because it may have affected the planning application; and
• it was satisfied Officer C had been proactive in her management of the case but had a heavy caseload. The case had a high priority, and Ms B would be updated as soon as it was able to do so.

30. In July 2024. Ms B advised the Council of further development on the site, including several wooden structures and additional aviaries. She also told the Council about cockerels creating unacceptable noise at 4am and the disposal of human waste.
31. Ms B’s reports of noise nuisance and human waste disposal were referred to the Council’s environmental health department.
32. Ms B brought her complaint to the Ombudsman in August 2024.

Analysis

Enforcement action

33. It is not the role of the Ombudsman to determine whether development and use of the Land was in breach of planning permission or what enforcement action should have been taken. Instead, we focus on whether the correct procedure was followed.
34. The Council’s enforcement policy stated the Council aimed to provide a written response within 28 working days, although its acknowledgement letter extended this to eight weeks.
35. The Council failed to comply either its policy, or the terms of its letter of acknowledgement, because it took 12 weeks to provide Ms B with an update.
36. I am satisfied this delay amounted to fault, that caused Ms B avoidable frustration.
37. However, once the Council started its enquiries, I am satisfied it acted in accordance with the law and its own policy. The case records show the case officer made reasonably prompt enquiries when Ms B reported further breaches planning control and environmental health concerns. The Council carried out three site visits and discussed concerns and possible solutions with both Mr D and Ms P on several occasions. It also took swift action when it had evidence that Ms P was living on site by issuing a PCN. The Council’s Environmental Health Department facilitated noise monitoring and investigated the human waste issue. There was no fault in how it dealt with these matters.
38. Although I understand Ms B might have expected the Council to take more formal action to prevent Ms P’s use of the Land, enforcement action is discretionary, and the Council had to consider the government guidance that says it should act proportionately.
39. The Council was allowed to consider the wider context, specifically the ongoing planning application and the appeal to Planning Inspectorate when making its enforcement decisions. For this reason, I have not found fault with the Council’s decision making in this case.

Complaint handling

40. Ms B complained on 23 March 2024. Under the Council’s corporate complaints policy, the Council should respond within 20 working days. In this case, the Council took 42 working days, in part because the responding officer had to take unexpected leave. While this was unavoidable, the Council should have processes in place to ensure cases are picked up by a colleague when the assigned officer becomes unavailable.
41. At the very least we expect councils to tell complainants when a response will be delayed, preferably before any deadline has elapsed. In this case, it took a reminder from Ms P to prompt the Council to provide an update about the status of her complaint. The Council then took a further nine working days to respond after the revised deadline.
42. Overall, I am satisfied there was fault with the Council’s handling of Ms B’s complaint causing her further avoidable frustration.

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Agreed action

43. Within four weeks from the date of my final decision, the Council has agreed to take the following action.
1. Apologise in writing to Ms B.
2. Remind relevant staff of the need to comply with timescales set out in the Council’s enforcement policy.
3. Take action to ensure complaint handling timescales are complied with in the event of unexpected staff absences.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I find fault causing injustice. The Council has agreed to action my recommendations to remedy the injustice to Ms B and improve its service. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman