Summary: Mrs X and Mr Y complained about the way the Council considered and responded to reports of breaches of planning control at a neighbouring property. We find no fault with how the Council considered and responded to breaches of planning control. We find the Council at fault for not having a published process, causing uncertainty. The Council has agreed to apologise and publish an enforcements process.

The complaint

1. Mrs X and Mr Y complain about the way the Council has investigated and responded to their complaints about breaches of planning control at a neighbouring property. Mrs X and Mr Y say the Council has not followed its enforcement policy or taken appropriate enforcement action. As a result, they have not been able to use their outdoor space and are unable to sell their property.

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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. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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. We cannot usually investigate complaints about events that took place more than 12 months before a complainant contacted the Ombudsman. We can only exercise discretion to look back further if there are good reasons to do so.
8. Mrs X and Mr Y first brought their complaint to the Ombudsman in August 2024, meaning anything that happened before August 2023 has been raised late.
9. The events Mrs X and Mr Y complain about go back to February 2023. While part of Mrs X and Mr Y’s complaint has been brought to us late, they were engaged with the Council constantly until they contacted the Ombudsman. Mrs X and Mr Y raised their complaint as soon as they had reason to believe the Council may be at fault for delays, and then promptly brought their complaint to us. For this reason, I have exercised discretion to investigate from February 2023.
10. We also cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us.
11. The Council responded to Mrs X and Mr Y’s complaint in August 2024, so I have investigated up to that point. If Mrs X and Mr Y want us to consider any events that have occurred since August 2024, they will first need to raise them with the Council to give it an opportunity to respond. This includes complaints about issues such as how the Council considered any planning applications Mr Z made, or how the Council responded to any reports of recurrent breaches.

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How I considered this complaint

12. I considered evidence provided by Mrs X and Mr Y and the Council as well as relevant law, policy and guidance.
13. Mrs X and Mr Y, 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

Planning enforcement

14. The Town and Country Planning Act 1990 defines breaches of planning control as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
15. 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.

National Planning Policy Framework

16. The National Planning Policy Framework sets out the government’s planning policies for England and how to apply these.
17. The Framework says effective enforcement is important to maintain 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.

The Council’s planning enforcement

18. The Council publishes information about planning enforcement on its website. This says unauthorised developments will be investigated proportionately to the scale of the suspected breach and enforcement action will be taken where it is appropriate to do so and is in the public interest.
19. The website does not set out information about the process the Council will follow, give any timescales or give examples of where it will deem enforcement action to be proportionate.

Principles of good administrative practice

20. The Ombudsman publishes guidance about good administrative practice for local government, which is used as a benchmark for the standards we expect when investigating complaints about councils. This recommends councils are open and accountable about policies and procedures, using open and transparent criteria.

What happened

21. I have summarised below some key events leading to Mrs X and Mr Y’s complaint. While I have considered everything said and submitted, this is not intended to be a detailed account of what took place.
22. In February 2023, the Council received reports of breaches of planning control at the property of Mrs X and Mr Y’s neighbour, Mr Z.
23. The Council’s enforcement officer visited the site in March 2023 to assess the alleged breaches and liaised with the Council’s planning officer to discuss these. They then contacted Mr Z to explain he would need to rectify some of the identified breaches and would need to submit an application so it could consider whether to approve other aspects of the work that had taken place. They also identified some elements of work that had not been approved that they did not feel would be expedient to pursue.
24. The Council’s planning officer stayed in contact with Mr Z and chased an update on the rectification work and planning application in the following months.
25. In October 2023, the Council’s planning officer and enforcement officer visited Mr Z’s property again and identified several issues that needed to be addressed. Mr Z confirmed he would rectify the issues the Council identified as needing to be rectified and said he would submit a planning application to address the other aspects of the work.
26. Mrs X and Mr Y contacted the Council again in November 2023 to explain they were concerned about work Mr Z was carrying out as he did not have permission for this.
27. In December 2023, the Council’s enforcement officer wrote to Mr Z setting out exactly what breaches they had identified and how these should be addressed, either by applying for planning permission, or restoring the site. The Council also set out which breaches it felt would not be expedient to pursue. The Council asked for the applications to be submitted by the end of February 2024.
28. In January 2024 Mrs X and Mr Y contacted the Council to ask why Mr Z had been given more time. The Council explained Mr Z had engaged with it and had agreed forward action, so it had allowed him further time to comply. The Council explained this was necessary to demonstrate it had given Mr Z an opportunity to resolve the matter without the need to take formal action.
29. The Council continued to liaise with Mr Z about the rectification work and his pending application. The Council contacted Mr Z in February 2024 to check he was on schedule to submit the applications by the end of the month.
30. In March 2024, Mrs X and Mr Y contacted the Council to complain about the length of time the process was taking. The Council explained it was still awaiting applications from Mr Z but hoped to update Mrs X and Mr Y the following week.
31. That month, Mr Z asked the Council to meet with him to discuss the outstanding issues prior to submitting an application and the Council agreed to this.
32. Mrs X and Mr Y complained to the Council in April 2024 saying it had failed to enforce against planning breaches and had instead acted in order to help Mr Z.
33. Later that month, Mrs X and Mr Y asked the Council for an update as two months had now passed since the deadline to submit a planning application. The Council responded to explain it was meeting with Mr Z to discuss this the following week.
34. The Council met Mr Z on his property in May 2024. The Council reassessed the outstanding breaches and considered the rectification work Mr Z had carried out so far. Mr Z confirmed he would submit planning applications to cover the outstanding work.
35. The Council then wrote to Mrs X and Mr Y to confirm it had recently completed a site visit and Mr Z was working to resolve the identified breaches. The Council explained it was in regular communication with Mr Z and it would not take further enforcement action until it had considered his planning applications.
36. The Council remained in touch with Mr Z to seek updates on the rectification work and his planning applications.
37. Mrs X and Mr Y contacted the Council for an update in June 2024. The Council confirmed that part of the work would be done by the end of August, and it was expecting planning applications to resolve the other issues it felt it would be expedient to pursue.
38. The Council responded to Mrs X and Mr Y’s complaint that same month. The Council reiterated its planning enforcement officer was working with Mr Z to ensure part of the unapproved work was corrected and part was considered by applying for permission. The Council said it could not see any evidence it was failing to follow its enforcement policies or acting in order to help Mr Z.
39. Mrs X and Mr Y asked the Council to reconsider their complaint as they said the Council had failed to properly address their concerns and it had allowed this case to go on for too long. Mrs X and Mr Y said the Council had failed to act on breaches it had identified which had allowed the situation to worsen.
40. Later that month, Mrs X and Mr Y notified the Council that Mr Z had carried out further unauthorised work. The Council reviewed this and told Mr Z he would either need to remove it or submit an application seeking permission for it.
41. In July 2024, Mr Z’s planning agent contacted the Council to ask for more time to submit the application as they were awaiting an ecologist report. The Council responded to explain, due to the history of this case, it would accept and validate an application without the ecology report and could proceed with this later.
42. The Council chased Mr Z’s planning agent in August 2024, and they confirmed the application would be submitted by the end of the week.
43. The Council responded to Mrs X and Mr Y’s complaint in August 2024. The Council explained its enforcement powers are discretionary so, while it will always investigate reports, it does not have to take action. The Council explained it tries to enter negotiation to agree ways forward to avoid formal enforcement actions, and even when this fails it has to decide whether formal action would be expedient. The Council explained it had staffing capacity issues within its planning enforcement teams which has created delays, but it was actively trying to resolve this and recruited temporary enforcement officers. The Council explained the length of time taken to resolve enforcement cases varied dependent on the issues involved and Mrs X and Mr Y’s case had not been open for an unusual amount of time. The Council explained this case had been moving forwards through negotiation and the neighbour had been co-operating with this, which meant it would not be proportionate to use formal action. The Council also explained the section of its website setting out its enforcement powers and the process it follows was outdated and would be removed while it was updated.
44. In August 2024, Mr Z submitted a planning application related to some of the outstanding identified breaches. The Council then arranged a further site visit to assess what breaches remained to be addressed.

Analysis

45. The Ombudsman is not a planning authority and cannot determine whether a breach of planning control has occurred and, if so, what action should be taken to resolve the breach. Instead, we investigate how the Council has considered matters and whether it has acted in accordance with the law, guidance and its own enforcement objectives.
46. Mrs X and Mr Y have said the Council is at fault for not taking formal enforcement action against Mr Z which has caused a reduction in their property value. Mrs X and Mr Y have also said the Council’s decision is not consistent with other enforcement investigations it has carried out. It is not for the Ombudsman to say what action the Council should take, and I have to consider this case on its individual circumstances, so I do not find fault here.
47. That said, we expect councils to carry out thorough investigations into enforcement complaints and consider the full range of enforcement options open to them. Even if a council decides not to take enforcement action, we expect it to record its reasons and explain its decisions to any complainants. We would expect the council to do so without unnecessary delay.
48. After the Council received an enforcement complaint in February 2023, it visited the site and identified breaches. It engaged promptly with Mr Z to set out which breaches needed to be rectified, which needed to be considered by a planning application, and which it felt it would not be expedient to pursue. The Council appears to have assessed the situation and entered negotiation to avoid the need for formal enforcement action, and I do not find it at fault here.
49. Throughout the timeline I have investigated, the Council remained engaged with Mr Z to ensure progress was being made towards a resolution. I understand Mrs X and Mr Y’s frustration that the issues were not solved up to the end point of my investigation but enforcement complaints, being complex in nature, are unpredictable and I can see no period where the Council let the matter lie. The Council chased Mr Z for updates and only agreed to extend deadlines where it was necessary to do so, and I do not find it at fault for delays.
50. Throughout the timeline I have investigated, contact was often initiated by Mrs X and Mr Y rather than by the Council but that is not enough on its own for me to find the Council at fault. I do not have a full chronology of contact between the Council and Mrs X and Mr Y, but based on what I do have, on the balance of probabilities it seems the Council was not at fault for the way it communicated with them.

In its response to Mrs X and Mr Y’s complaint, the Council explained its website, setting out its enforcement process and powers, needed to be updated. The Council said it would remove this page until it was updated, however the page still does not appear on the Council’s website. Not having a published policy or process for enforcement investigations is poor practice and amounts to fault. This creates uncertainty for all service users around what they can expect as part of an enforcement investigation, which is injustice.

Mrs X and Mr Y have said they feel the Council’s decision to remove its policy is because was they were not following it. Given the nature of Mrs X and Mr Y’s complaint, I can understand this would have caused uncertainty for them. However, I have not seen enough evidence to find even on the balance of probabilities that this anything other than the Council updating its policy.

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Action

51. To remedy the injustice set out above, the Council should carry out the following actions:
52. Within one month:
• Provide a written apology to Mrs X and Mr Y for not having a published enforcement process. 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 I have recommended in my findings.
53. Within three months:
• Complete the review of the web page setting out its enforcement obligations, powers and processes and ensure this is live on its website.
54. The Council should provide us with evidence it has complied with the above actions.

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Decision

55. I find the Council at fault for not having a published process for how it deals with enforcement investigations, causing injustice. The Council has agreed actions to remedy injustice and 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