Summary: Mr X complained the Council failed to decide what planning enforcement action it would take after he reported a breach of planning control, and failed to keep him updated despite saying it would. We find the Council at fault for the time it took to decide what enforcement action it would take and for failing to keep Mr X updated. This caused Mr X distress, uncertainty and frustration. The Council has agreed to make a decision by a set date, keep Mr X updated in line with its policy, apologise and make a symbolic payment to remedy the injustice.

The complaint

1. Mr X complains about the Council’s handling of a residential development, near his parents’ home and a garden he owns, that the Council confirmed breached planning control in 2021. In particular, he complains the Council has failed to:
1. Decide what action it will take.
2. Keep him updated on the progress of its investigation despite saying it would.
2. He complains the Council’s inaction and lack of updates has significantly affected his parents’ enjoyment of their home, the family’s enjoyment of the garden and caused uncertainty and frustration.
3. He would like the Council to make a decision and take action in response to the identified breach of planning control and keep him updated on the progress of its investigation.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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(1), as amended)

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What I have and have not investigated

7. I have investigated from April 2021, when the Council first told Mr X it had identified a breach of planning control, until November 2024 when it provided its final complaint response to Mr X.
8. Matters before September 2023 occurred more than 12 months before Mr X complained to us and are therefore late. I have decided it is reasonable for Mr X to have believed the Council when it told him several times it was taking action on the complaint, and would keep him updated, from April 2021 onwards. I have decided this is a good reason to exercise discretion to investigate from this date.
9. Mr X said he first raised concerns in 2020. I have decided there are no good reason why Mr X did not complain sooner about matters before April 2021, therefore I cannot investigate before this date.

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How I considered this complaint

10. I considered evidence by Mr X and the Council as well as relevant law, policy and guidance.
11. 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

Law and guidance for planning enforcement

12. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
13. 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.
14. 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.
15. 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 December 2024, paragraph 60)
16. 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 decided 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.

17. 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.

What happened

18. This is a summary of key events. It is not a detailed chronology of everything that happened.
19. Mr X’s complaint is about a development on a piece of land that is overlooked by his elderly parents’ home, and borders a plot of land he owns and his family use as a garden.
20. In early 2021 Mr X contacted the Council. He raised concerns that no planning application had been made in respect of groundworks he had previously reported. He said people had moved into a home on the site permanently. He said he was worried the development might get bigger in the future.
21. In April the Council responded there was an ongoing investigation. It said it would update him when it reached a decision.
22. Also in April the Council replied to a concern raised on behalf of Mr X. It said it was closely monitoring the issue. It said it was currently considering what steps it could take regarding the breach of planning control, including enforcement powers. It said it would update Mr X shortly on its ongoing investigation.
23. In 2022 Mr X Contacted the Council again. He said he was disappointed with the lack of action and updates. He complained that his family suffered regular negative impacts linked to the development.
24. In early 2024 Mr X contacted the Council again and said the development had significantly grown in size to several homes. He chased the Council for a response.
25. The Council responded that the matter was in their casework. It said it had staff vacancies that were affecting its resources significantly, and it would deal with the matter as soon as it could.
26. Mr X raised a formal complaint with the Council about the lack of progress in March.
27. The Council responded in May under stage one of its complaint procedure. It said it appreciated the lack of apparent progress but that it was a complex case and work had continued behind the scenes. It said it was confident that it would be in a position to advise how the case would be progressed in a few weeks.
28. Mr X told the Council he was not happy with its response because it was a reworded version of its earlier responses.
29. Mr X raised his complaint with us in September. The Council had not contacted him despite saying it would do so in its complaint response in May.
30. The Council considered Mr X’s complaint under stage two of its complaint procedure and wrote to him in November. It upheld his complaint for not providing him an update following its response in May. It said the enforcement case into the identified breach of planning control was ongoing and there was no standard time for enforcement complaints to be resolved. It said it expected to be able to provide Mr X a definitive update shortly.

Analysis

31. I address each part of Mr X’s complaint in turn below.

a) Complaint the Council has failed to decide what action it will take.

32. The Council had decided the issue was a breach of planning control that may warrant use of its enforcement powers in 2021. It has not decided what, if any, options for formal planning enforcement action it will use to date, about four and a half years later.
33. I note the Council’s relevant policy, the Planning Services Enforcement Plan dated July 2023, states if it is made aware of a possible breach of planning permission, it would investigate the matter. If a breach happened, the Council would decide what action would be suitable for the circumstances. The policy also stated it aimed to resolve cases within 100 days or less.
34. I acknowledge the Council said the delays were due to the complexity of the case and significant resourcing issues caused by staff vacancies. It also said it needs to review the case against policy documents that are out of date. However, those factors were known to the Council when it responded to Mr X’s formal complaints. In those responses it said it would decide how to progress the case shortly. It did not do so.
35. I find the Council at fault for taking too long to decide what, if any, enforcement action it will take. The fault caused Mr X significant injustice in the form of distress, uncertainty and frustration.
36. I recommend the Council agree to make a decision within a set period, apologise and make a symbolic payment to remedy the injustice.

b) Complaint the Council failed to keep Mr X updated on the progress of its investigation despite saying it would.

37. The Council responded to Mr X’s concerns of lack up updates by assuring him it would update him on the progress of his case several times. This included in its initial contact in 2021 and in response to both of his formal complaints in 2024.
38. I note the Council’s policy states “In relation to cases which take some time to conclude we will aim to provide an update every 8 weeks”. It also states a customer focused approach to enforcement is an important requirement which includes ensuring complainants are provided with updates at regular and key stages as to progress made in an investigation.
39. The Council told Mr X in its stage two complaint response that work had continued on the case, but it had not kept him updated on that progress. I have seen no evidence the Council proactively updated Mr X on the progress of the case at any point.
40. I find the Council at fault for failing to keep Mr X updated in line with its assurances, formal complaint responses and own policy. The fault caused Mr X significant injustice in the form of distress, uncertainty and frustration.
41. I recommend the Council agrees to keep Mr X updated every 8 weeks in line with its policy, apologise, and make a symbolic payment to remedy the injustice.
42. I have decided not to recommend any service improvement actions in this case. This is because we made service improvement recommendations following a recent case with similar areas of fault, and I see no reason to duplicate the recommendations.

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Action

43. Within four weeks of the date of this final decision the Council has agreed to:
1. Apologise to Mr X for the injustice caused. 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.
2. Pay Mr X £300 to acknowledge the distress, uncertainty and frustration caused by the enforcement decision delays and failure to keep him updated.
3. Undertake to update Mr X of progress every eight weeks, and implement a system to ensure it does so.
44. Within three months the Council has agreed to:
1. Reach a decision on what, if any, options for formal planning enforcement action it will use; and initiate the action. It should inform Mr X and the Ombudsman promptly when the action is initiated.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I have completed my investigation. I uphold Mr X’s complaint because I find fault by the Council which caused injustice for the reasons laid out in the analysis section. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman