Summary: Mr C complained about the Council’s handling of a planning approval and planning enforcement of a development next to his home. We found fault by the Council as there were some unnecessary delays in the enforcement process, but it reached decisions it was entitled to make. The Council should apologise and make a symbolic payment to acknowledge the distress and uncertainty he experienced as a result. We did not investigate Mr C’s concerns about the planning approval as this was late.

The complaint

1. The complainant, Mr C, complained about the Council’s handling of a planning application and planning enforcement of two large residential buildings next to his home. He said:

• there was fault in the way the Council considered the original planning application, and it wrongly discharge of conditions prior to 2020; and
• the Council caused delays and failed to hold the developer to account for breaches of planning control through the planning enforcement process since Summer 2020.

2. Mr C said, as a result, he has experienced distress and uncertainty due to noise from plant equipment, an impact on his amenity, and lack of responses or progress in having the concerns resolved.

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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 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. 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(i), as amended)

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What I have and have not investigated

7. Mr C’s complaint relates to the Council’s handling of planning applications and enforcement action between 2017 to August 2024. Most of the period complained about is therefore more than 12 months before it was brought to our attention, and therefore late.
8. I have investigated Mr C’s complaint about how the Council handled his planning enforcement concerns relating to unauthorised development causing noise and an impact on residential amenity. Although, Mr C’s complaint is late, I have found it appropriate to exercise my discretion to consider the Council’s handling of the enforcement complaint from Summer 2020 until Autumn 2024. This is because he has continued to raise his concerns since, and it was appropriate to allow time for the Council to resolve the matters.
9. I have not investigated:
• Mr C’s concerns about the Council’s handling of planning applications and the discharge of conditions prior to 2020. This is because I have not found it appropriate to exercise my discretion to consider this due to the time which has passed; and
• The Council’s handling of the Autumn 2024 retrospective planning application, which was approved by its planning committee. This is because any concerns about this was not part of Mr C’s complaint to the Council or the Ombudsman.

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How I considered this complaint

10. I considered evidence provided by Mr C and the Council as well as relevant law, policy and guidance.
11. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning Enforcement

12. 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.
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 September 2023, 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.

Council’s planning Enforcement Plan

18. The Council’s policy says it receives a high number of planning enforcement complaints, and it will prioritise these depending on the urgency and impact of the alleged breaches.
19. It will initially assess the alleged breach which normally involves a site visit. It will then consider how to proceed with its investigation.
20. Once the Council has considered a reported planning enforcement concern, it will inform the owner and occupier of a site, and the complainant. The outcome may be:
• No further action, if there is no breach or it finds it is not expedient to pursue the case.
• Further investigation is required, which may involve a planning contravention notice;
• Negotiate a solution, which will depend on the context and the intentions of the owner;
• Seek a retrospective planning application for planning permission; and
• Formal enforcement action. This will normally be the last resort, and where the Council find that serious harm would take place and the development could not be made acceptable by the grant of planning permission.
21. It will only take formal enforcement action when it considers it expedient to do so. It will normally not take such action where breaches a minor or where it can readily be remedied through negotiation.

Complaints Policy

22. The Council’s policy says it will acknowledge complaint. It has a two-stage complaint process, which is:
• Stage 1 with an aim to provide its response within 10 working days;
• Stage 2 with an aim to notify of outcome within 15 working days. Investigation will be by a senior manager not involved in the original complaint. The response will not reinvestigate the complaint but will focus on understanding the continuing concerns and whether the stage one process was undertaken fairly and conclusions reached were reasonable.
23. If it is not possible to respond within these timescales, the complainant will be contacted and informed when they should expect a response. The extensions should not be longer than 10 working days for stage 1 and 20 working days for stage two.

What happened

24. I have set out a short summary of the key events which took place. This is not intended to cover each and every event that occurred or points of complaint.
25. Mr C lives next to a development of two large residential buildings which were approved through a planning application to the Council. The development was completed in 2020.
26. In Summer 2020 Mr C told the Council the developer had not adhered to the approved plans. This included concerns about plant equipment necessary for the development had been placed on the roof, the layout of the roof, a flue, and other equipment. He said the development caused noise and impacted on visual amenity of neighbours.
27. The Council conducted a site visit and opened a planning enforcement case. It agreed the development was not in line with the approved plans. This was primarily relating to plant equipment, the roof layout, a flue and vents, and replanting of trees. It agreed this caused some noise and impacted the visual amenity.
28. The Council held discussions with the developer and inspected the roof of the development in Autumn 2020. It was agreed for the developer to make a retrospective planning application for the Council to consider which included mitigations of the identified concerns. The Council updated Mr C.
29. In January 2021 the developer made a retrospective planning application to regularise the works which had taken place. A noise impact assessment was included. Mr C objected to the proposal.
30. The Council was not satisfied with the developer’s proposal and continued to work with them. During 2021 two further noise assessments were provided to the Council with some noise mitigation put in place and attempts to screen some plant equipment on the roof were made.
31. Mr C complained to the Council as he was not satisfied with the works and progress. The Council explained it was attempting to resolve the unauthorised works through negotiation with the developer. However, if there was no further progress in the next two months it would recommend refusal of the retrospective planning application.
32. In late 2021 the Council wrote to the developer due to the lack of meaningful response and engagement to implement an acceptable resolution to the identified concerns. It explained it would not accept further delays.
33. The Ombudsman considered Mr C’s complaint at this time, but we ended our involvement as the enforcement process was ongoing and the Council expected its planning committee to consider the retrospective planning application soon after.
34. The Council conducted a site visit in February 2022 which included its planning, enforcement, and environmental health officers. It considered:
• the screening of equipment on the roof was not acceptable as the materials were not the same colour as the existing tiles,
• equipment at ground level, acoustics, and landscaping. It found these concerns to have been appropriately addressed.
35. In April 2022 the developer withdrew the retrospective planning application. The Council informed the developer its enforcement case remained open, and it may take further enforcement action.
36. The Council also updated Mr C. It explained it did not consider it realistic for the plant equipment to be relocated into the roof, but it would consider its position in taking enforcement action to gain compliance with the approved drawings.
37. In October 2022 the developer submitted a new retrospective planning application relating to the matters of unauthorised development.
38. The Council conducted a further site visit the following month. It continued not to be satisfied with the developers’ proposals. It chased the developer for engagement and a response.
39. In 2023 the Council set a deadline for May 2023 for the developer to submit an application regarding the outstanding matters it was still not satisfied with. The developer failed to do so and asked for a month’s extension, which the Council agreed to.
40. In June 2023 the developer informed the Council it had appointed a consultant to review the concerns and propose solutions or mitigations.
41. In August 2023 the Council told Mr C it had informed the developer of the urgency to address its concerns. It too was frustrated with the developers lack of action. However, it had seen evidence the planning consultant was working on the required action, and it would chase this.
42. In November 2023 the Council met the consultant on site and discussed the ongoing concerns and required action. Mr C was informed.
43. In February 2024 the Council and the consultant met again. The consultant set out the outstanding issues and proposed to address issues with each building separately, but no concrete solutions were proposed. The Council agreed to the approach but said there should be strict timescales for when works were to be completed, and approval would be subject to planning permission.
44. Mr C complained to the Council in early 2024. His complaint included:
• The Council’s handling of the initial planning application and discharge of conditions prior to 2020. He said it had failed to identify the proposal and plans did not have plant equipment necessary for the buildings to operate; and
• The Council had not made any decision to get the various breaches of planning control corrected or removed, and the impact of noise and visual amenity continued.
45. In response the Council did not uphold Mr C’s complaint. It explained it had considered the planning application as made, but acknowledged some works which had taken place was unauthorised. It agreed this had to be addressed and found negotiation with the developer and retrospective planning applications to be the best way forward. However, this was a challenging situation as the buildings were occupied and required the plant equipment to function. It acknowledged the time it had taken so far to address the concerns, and explained it expected a new planning application to be submitted in the following weeks, if this did not happen it may take formal action against the developer.
46. In March 2024 Mr C told the Council he was not satisfied with its response and asked it to consider his complaint under its stage two complaints process.
47. In May 2024 the developer’s consultant submitted a planning, design and access statement and its retrospective planning application. This set out the unauthorised works, the findings of noise assessments, and its recommendations to mitigate noise and impacts on visual amenity.
48. The Council subsequently provided its final complaint response to Mr C. It found it:
• had assessed the original planning application as made, but acknowledged its officers did not properly consider the need for additional plant on the roof as part of the process. This part of the complaint was upheld and it apologised for the inconvenience this caused;
• had received the two retrospective planning applications relating to the roof and plant equipment, and landscaping. However, both were withdrawn by the developer and the breaches therefore continued to exist. It had not provided consent for the works and will consider the breaches in the developer’s new retrospective planning application; and
• had dealt with the breaches of planning control through its enforcement process and had continued to work with the developer through negotiation. It explained the challenges it had faced and acknowledged this had taken time, but did not uphold this part of Mr C’s complaint; and
• explained its intentions if the developer did not progress the identified concerns and regularise these through a new application.
49. In October 2024 the Council’s planning committee considered the developers retrospective planning application. This included a site visit by members where they inspected the unauthorised works and considered the proposed amendments and mitigations. The Committee approved the application subject to conditions which required a scheme for noise mitigation measures should be submitted and approved within three months. Timescales for the works should be set out, and a survey of plant equipment noise should be carried out.
50. Mr C said he was pleased with the progress, but remained unhappy about how the Council had handled the planning process since 2017 and his planning enforcement concerns since 2020. He asked the Ombudsman to consider his complaint.

Analysis and findings

The Council’s handling of the planning enforcement process from 2020 to late 2021

51. I have not found fault by the Council for how it handled Mr C’s concerns about the developer’s breaches of planning control during the initial 18-month period. In reaching my view I was conscious it:
• acknowledged Mr C’s reported concerns, conducted a site visit, and opened an enforcement case. If found the breaches caused an impact on visual amenity and noise;
• discussed the identified breaches of planning control with the developer, and found informal action through a negotiation and a retrospective planning application was the best way forward;
• found the developer’s retrospective planning application was insufficient to address the concerns. It continued its work on the case and chased the developer when there was lack of progress; and
• intended to consider the application in late 2021 if no further progress was made.
52. While I acknowledge Mr C would like the Council to have taken formal action, the Council was entitled to reach its view informal action, and a retrospective planning application was the best way forward. I am not satisfied the Council caused unnecessary delays in this period.

The Council’s handling of the planning enforcement process from 2022 to Autumn 2024

53. The evidence shows the Council’s enforcement case remained open throughout this period. Also, its enforcement case remains open after the Council’s planning committee approved the developers 2024 retrospective planning application in Autumn 2024.
54. I have considered whether the was fault in the Council’s handling of the enforcement process and whether it caused unnecessary delays.
55. The evidence shows;
• it had regard to the development which had taken place, Mr C’s concerns, and the impact the development was causing him and other neighbours. It also had regard to the fact the buildings were occupied and the impact any formal actions may have on the residents;
• it conducted some further site visits and discussed the ongoing concerns with the developer, and subsequently the developers consultants;
• it considered the limited proposals it received from the developer, noise assessments, and the mitigations which took place. This included officers from its planning, enforcement, design, and environmental health teams;
• it considered the retrospective planning applications and discussed its ongoing concerns with the developer before these were withdrawn;
• it provided some updates to Mr C and met him on occasions; and
• the Council considered and approved the developers 2024 retrospective planning application with conditions relevant to ensure the required action or mitigation is completed without further delay.
56. I found the Council reached decisions it was entitled to make throughout the process which was in line with its Enforcement Plan. It was for the Council to decide how best to resolve the identified breaches of planning control. This includes some breaches which remained in place, but it found to have been mitigated sufficiently or were not expedient to take formal action against.
57. However, it took the Council over four years to get to the stage where an acceptable retrospective planning application was submitted and approved. I found the Council caused some unnecessary delay in the process which amounts to fault.
58. In reaching my view, I acknowledge the developer, and its consultants, were challenging to work with and failed to work with the Council in a timely and constructive manner. I also accept this was a challenging case as the buildings were occupied and the plant equipment was necessary for the building to function.
59. Regardless of this, the evidence shows there were periods between 2022 to May 2024 where there was limited or no action on the case, nor did the Council consistently ensure it placed deadlines on the developer and follow these up with warnings about further action, and the two initial retrospective planning application were left to drift before they eventually were withdrawn.
60. I cannot say the Council fault caused Mr C the impact on his visual amenity and noise, as these were actions of the developer, and I have not found fault in the Council’s decision making. However, I am satisfied its delays caused Mr C some unnecessary distress and uncertainty which has not been remedied.

Complaints handling

61. I acknowledge Mr C was not satisfied with the Council’s responses to his complaints. I also note it took nearly two months for the Council to provide its stage one and stage two response. I found some fault in the complaint process. This is because it did not respond to his complaint within the timescales or extended timescales set out in its policy.
62. However, once it provided its responses, these covered the key points of his complaint, and I would not expect the Council to address points of a complaint which occurred several years before it was brought to its attention.

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Action

63. To remedy the injustice the Council caused to Mr C, the Council should, within one month of the final decision:
1. apologise in writing to Mr C to acknowledge the delayed handling of its 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.

2. pay Mr C a symbolic payment of £200 to acknowledge the distress and uncertainty he experienced as a result of the length of time the Council took to resolve his complaints and breaches of planning control.
2. Within three months of the final decision the Council should also:
1.  
2.  
3. review Mr C’s case to reflect on how it can avoid unnecessary delays or periods with no or limited progress in the enforcement process. The findings should be shared with planning enforcement staff, and other relevant staff, with the aim of preventing unnecessary delays.
3. The Council should provide us with evidence it has complied with the above actions.

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Decision

66. I found fault by the Council for causing delays in the enforcement process, which caused Mr C an injustice. I have not found fault in the Council’s decision-making process, it therefore reached decisions it was entitled to make.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman