Summary: The complaint is on behalf of a residents’ group and about the Council planning team’s inaction over a breach of planning control. The Ombudsman finds the Council was not at fault for its decisions around how to deal with the breach it found. But there was fault by way of delay, not providing updates and not keeping records of key actions. This will have caused the residents some frustration and uncertainty. Delayed complaint responses led to avoidable time and trouble. The Council has agreed to apologise, provide an update and make a symbolic payment for the avoidable time and trouble.

The complaint

1. Mr D complains on behalf of a group of residents. He complains the Council did not deal with a breach of planning control. A property was being used as a house in multiple occupation (HMO) without permission and the Council failed to look properly into residents’ concerns or take any action. The Council delayed responding to their complaint. It promised to provide updates which did not materialise.
2. Mr D says the unauthorised use of the building has had a significant impact on the area.

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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 may 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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Mr D and the Council as well as relevant law, policy and guidance.
6. Mr D 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

7. 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.
8. 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.
9. A retrospective application allows a council, as planning authority, to give local people an opportunity to comment on that development and then assess it against planning policies. Normally, development meeting planning policies will get planning permission, unless there are other relevant planning reasons to justify refusal. If a council does refuse a planning application, the developer has the right to appeal to the Planning Inspectorate. The time limit for appealing is six months from the date of the decision on the application.
10. 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)

The Council’s Local Enforcement Plan

11. The Council’s Local Enforcement Plan says:

• it will always seek to remedy a breach of planning control before considering formal action. Sometimes this might mean asking an applicant to apply for retrospective planning permission;
• its priorities were to enforce criminal cases (listed buildings and protected trees) and breaches “…with a potential significant impact on safety / amenity or harm to the environment”;
• it would first carry out a “desk-top investigation” to establish initial facts. It would then either carry out a site visit or contact the landowner or developer;
• its targets were to conduct the initial investigation within 10 working days and a site visit or initial contact within 15 working days;
• it would provide an update to anyone reporting a breach when the outcome of its investigation was clear. But it would not provide regular updates on each case.

What happened

12. The information below is a summary of relevant events, and does not include every everything that happened during this period.
13. Mr D says he first became aware of a complaint to the Council’s planning enforcement team in February 2024. The complaint was that properties in his area were being used as HMOs without permission.
14. In May the Council wrote to Mr D with its conclusions from its initial investigation, including a history of applications for the premises. Mr D wrote back to advise the Council’s chronology was “nonsense”. He gave his own account of the history of the site.
15. The Council says it carried out a site visit shortly after, although it has not sent a contemporaneous record of the visit.
16. At the end of May Mr D asked to make a complaint about the Council’s inaction. Over a month later he had not received a response – which was significantly beyond the time in which the Council said it would respond.
17. In a July response to an enquiry from the Council’s complaints team, its planning enforcement team advised its site visit had not found any evidence of the properties’ use as HMOs or short-term lets. It noted an absence of multiple doorbells or letterboxes and just one lock. It advised: “I can’t remember what we decided. I think we said it wasn’t a breach as they had approval to be flats … ? Maybe we said I should send a PCN to [a housing association registered as the leaseholder]? I can do that if needed.”
18. At the end of July the Council responded to Mr D’s complaint. It explained how it had arrived at its earlier conclusions and apologised if there were errors within its report. It advised it would carry out another site visit. And provide Mr D with a “…full report outlining this site visit and our findings in the round”.
19. The Council’s planning enforcement team followed this call by contacting the landlord to carry out an internal inspection. It says it carried out the inspection, but has not sent me any contemporaneous record of that visit.
20. Mr D wrote again to the Council asking to escalate his complaint. He chased a response around a month later, and contacted the Ombudsman after a further period when the Council had not responded.
21. The Council responded to Mr D’s stage two complaint in mid-November, around 13 weeks after he had asked to escalate his complaint. The response:
• apologised for the delay in responding to the complaint;
• advised its investigation was ongoing. It said its planning team would provide an update;
• found its earlier complaint response “unclear and not correct in places”. It advised of staff absence and increased workload as reasons;
• apologised it had not provided the response it had committed to in its earlier complaint response.
22. Later in November 2024 the Council contacted Mr D with an update. It advised it had contacted the owners of the property advising they needed permission to use the property as a HMO. It said it expected to be able to provide a further update in five weeks.
23. At the end of January 2025 Mr D chased the Council for the update it told him it would provide. Around two weeks later, he complained to the Ombudsman. The Council provided an update at the end of February.
24. In mid-February the Council refused a retrospective application for change of use of the properties to HMOs.
25. The Council’s file says the landlord’s agents advised it they would be submitting a revised scheme.
26. The Council took no further action until the end of July, after the Ombudsman had made enquiries to the Council. It then emailed the agent asking for an update. In response to my enquiries, the Council noted the period in which the landlord might appeal its decision did not end until the end of August.
27. I have asked Mr D if he has received any recent updates. He advised he has not.

Was there fault by the Council?

28. The Council’s initial investigation did not meet the timescales set out in its own Policy that it would carry out its initial investigations within 10 working days. That was fault
29. I have found two instances where the Council said it would provide updates but then did not provide them. I note the Council does not provide updates usually. But as it had committed to providing them, to not do so was fault.
30. Both of the Council’s complaint responses were delayed, the stage two response significantly so. Those delays were fault.
31. I find the Council was at fault for failing to maintain complete records detailing its investigation or the reasons behind the actions it took:
• not having a record of the site visits. The response from the team to Mr D’s complaint shows some uncertainty about what it had decided after the site visit. A suitable record would have avoided any uncertainty;
• after it refused the planning permission. Waiting for the applicant to either submit a revised scheme or appeal was a legitimate strategy for the Council to pursue and I cannot fault it for doing so. But it has not provided any evidence it had considered this, decided to pursue this strategy and had a plan in place to monitor the situation or move things forward.
32. More generally there was no fault in the Council’s decision to deal with the breaches by inviting a planning application. That strategy is in line with both the Council’s Enforcement Policy and national guidance on planning enforcement.

Did the fault cause an injustice?

33. The faults I have identified will have caused some frustration for Mr D and the members of his group. The lack of updates will have caused them some uncertainty.
34. Mr D himself was put to avoidable time in trouble due to the delays in responding to his complaints and having to chase updates.
35. In response to my draft decision the Council set out service improvements including requiring records of enforcement site visits, better communications with complainants and improvements to its complaints process

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Agreed Action

36. The Council has agreed that, within a month of my final decision, it will take the following action.
• Apologise for the faults I have identified. 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.
• Provide Mr D with an update from the planning team on what is happening with its investigation/enforcement action.
• Provide Mr D with a £100 symbolic remedy for the time and trouble he was put to by the delayed complaint responses and delayed updates.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman