Summary: Mr X complained about the Council’s failure to properly investigate a breach of planning control that adversely impacted his nearby home. We found no fault in the Council’s investigation but it had not replied to some of Mr X’s correspondence or formally closed its enforcement case. This had not caused Mr X significant injustice needing a remedy but the Council agreed to act to close its enforcement case.

The complaint

1. Mr X complained about the Council’s failure to properly investigate his report of a breach of planning control at a site near his home (‘the Site’). The Council also refused to reply to his questions about its enforcement investigation.
2. Mr X said use of the Site breached planning control and had an adverse impact on his home and living conditions. Mr X wanted the Council to answer his questions and take enforcement against the Site.

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The Ombudsman’s role and powers

3. 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)
4. Where we find ‘fault’, we must also consider whether that 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. 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

6. Mr X had previously complained to us about the Council’s handling of his report of a breach of planning control on the Site. We found the had been significant delay by the Council in investigating the alleged breach before it had decided not to issue a planning enforcement notice. And that delay had caused uncertainty for Mr X. In putting matters right on that complaint, the Council had agreed to offer to discuss the case with Mr, including possible next steps.
7. Mr X’s second complaint to us concerned the same alleged breach of planning control on the Site. And the Council’s planning enforcement investigation into that alleged breach remained open. My investigation into Mr X’s second complaint concerned what happened over a period of about 10 months. The 10 months started with the Council acting to put matters right in line with our final decision statement on his first complaint and ended on Mr X making this complaint to us.

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How I considered this complaint

8. I considered evidence provided by Mr X and the Council. I also considered relevant law, policy and guidance. Mr X and the Council had an opportunity to comment on my draft decision and I considered any comments received before making a final decision.

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What I found

Background

9. Councils have legal powers to take enforcement action if they find planning rules have been breached. Government guidance says, as enforcement action is discretionary, councils should act proportionately in responding to suspected breaches. (See National Planning Policy Framework (NPPF) paragraph 60.)
10. As planning enforcement is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements or asking for a planning application so the council can formally consider the planning issues relevant to the development.
11. When deciding whether to enforce, councils should consider the likely impact of harm to the public and if they might grant approval on receiving an application for the development or use.
12. The Council has a 2017 Planning Enforcement Plan (‘the Plan’). The Plan reflects the NPPF guidance and its accompanying National Planning Practice Guidance (PPG). The Plan says enforcement cases causing the greatest harm to public amenity or the environment have priority. The Plan says officers will initially assess harm and resulting case priority, taking a commonsense approach and using their professional judgement. Under the Plan, the Council will only take formal enforcement action when ‘expedient’ to do so.
13. The Plan says the Council will give the person reporting a breach the reference number for the enforcement case and an update on investigation key milestones. The Council will also write to the person reporting a breach to tell them of its enforcement decision. And, if the Council takes no further action, it will give the person reporting the breach its reason/s for that decision.
14. The Plan says there are several reasons for taking no further action. These include the Council finding no breach or the lack of evidence of a breach.
15. The Plan sets out the enforcement powers available to the Council, for example, service of a Planning Contravention Notice (PCN). The Council may send a PCN to an owner/occupier asking questions about development on their land. The recipient of a PCN has 21 days to reply. It is a criminal offence not to respond to a PCN and or to give a false or misleading response.

Summary of what happened

16. After we issued our final decision on Mr X’s first complaint, the Council wrote to him about its planning enforcement investigation into use of the Site. Over the next 10 months, the steps taken by the Council included serving a further PCN, contacting third parties about the Site and seeking external guidance about the alleged use of the Site. The Council’s planning enforcement team also made a further 10 visits to the Site. And they liaised with their electoral register and council tax colleagues to gather information about occupation of the Site.
17. Meanwhile, Mr X had continued to correspond with the Council asking questions about its enforcement investigation and challenging its views and responses. About eight months into that correspondence, Mr X emailed the Council, listing point and questions (‘the Emails’). Receiving no response to those questions, Mr X contacted a local councillor, who referred him to the Council’s complaints procedure and or the Ombudsman.
18. A few weeks later, Mr X complained to us saying the Council was refusing to conduct a full enforcement investigation into use of the Site. Mr X set out matters affecting the Site about which he and the Council held different views. Mr X also said the Council was effectively refusing to reply to the Emails. Mr X said there was a serious planning breach on the Site which devalued his nearby property. Mr X said the Council must act to end the breach of planning control.

A summary of the Council’s response to the complaint

19. The Council said the Emails followed it telling Mr X it had not found a breach of planning control on the Site and would be closing its enforcement investigation. It accepted it had not replied to the Emails. However, it had subsequently carried out further visits to the Site but found no reason to change its position. It then became aware Mr X had made a second complaint to the Ombudsman. So, it decided to keep its enforcement case open pending the Ombudsman’s decision on the complaint.
20. The Council said Mr X’s emails, including the Emails, included non-planning matters and questions about the owner and occupiers of the Site. It had referred, as necessary, the non-planning matters to other Council departments for their consideration. Mr X’s points and questions about the Site owner and occupiers often concerned their personal information, including information it held about them in providing other services. The Council said its planning enforcement officers did not have powers, for example, to demand sight of peoples’ birth certificates or passports. And, any personal information it held about the owner and occupiers could not lawfully be shared with third parties, including Mr X. So, for example, it could not give Mr X information about any person liable for council tax on the Site and any payments they made. However, it could confirm the planning use of the Site was not affected by the owner living elsewhere.
21. The Council accepted it had not always kept Mr X updated but considered it had now fully investigated his report of a breach of planning control. Its next step would be to close its enforcement investigation and, on doing so, it would write to tell Mr X of its decision.

Consideration

Introduction

22. We are not an appeal body. And our role is neither to ask whether a council could have done things better and or differently nor to agree or disagree with its decision. Instead, we look at whether there was fault in how a council made its decision. If we find no fault, we cannot question that decision regardless of how strongly a complainant may disagree with it. And, if we find fault we may find it has not caused significant injustice. (See paragraphs 3 and 4 of this statement.)
23. As a publicly funded body we must also be careful how we use our resources and so cannot always respond to complaints in the detail people might want. Rather, we conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision.

Enforcement

24. Mr X and the Council held differing views about the planning use of the Site. And, in holding those views, they also differed on how the Site was occupied. It was not for me to arbitrate on their differing views or say whether there was any breach of planning control on the Site. Rather, I considered what the Council had done over the 10 months before Mr X brought this, his second complaint, to us.
25. The evidence showed Mr X had emailed the Council throughout the 10 months. In the emails, Mr X commented on use of the Site and raised points about the Site owner and occupiers. The Council did not respond to each email on receipt. But the evidence showed it engaged with Mr X, taking account of his views and comments and providing him with four updates over seven months. In its first response, the Council set out what it had and was doing to gather evidence about the Site and offered to meet Mr X to discuss the case. It also said it would only act when a clear breach of planning control causing planning harm was established on the Site.
26. In its following three responses, the Council further updated Mr X on its investigation and dealt with points raised in his emails. The Council’s further responses consistently told Mr X it would likely close its enforcement case as it had found no evidence of a planning breach on the Site. Overall, I did not find the Council’s communication with Mr X fell below acceptable administrative standards over the first seven months covered by my investigation.
27. Mr X then sent the Emails to the Council. The Emails continued to question how the Council was investigating the Site and its views about use of the Site. I found the Emails did not raise any new and substantive issues likely to affect the Council’s enforcement investigation. And, many of the points in the Emails again concerned personal information about the Site owner and occupiers. For example, Mr X asked about the owner’s financial records and legal agreements for occupation of the Site. The Council might likely have had nothing meaningful to add to its previous responses. And it could not lawfully give Mr X personal information about the Site owner and occupiers. It also had not yet made its enforcement decision, which it had said was to be its next step and would be a ‘key milestone’ and ‘outcome’ for its investigation requiring contact with Mr X. (See paragraph 13 of this statement.)
28. However, more than two months after receiving the Emails, the Council had not acted to close its enforcement case. Instead, the evidence showed it had made yet further visits to the Site. And, when we then told the Council about Mr X’s second complaint, it decided to keep its enforcement case open until we completed our complaint investigation. In practice, this decision meant the Council not only did not write to tell Mr X of its enforcement decision but it also did not reply to the Emails.
29. A complaint to the Ombudsman does not prevent a council from continuing to deal with the matter complained of. Equally, we cannot force a council to continue dealing with the matter complained of during our investigation. However, good administrative practice would have seen the Council write to Mr X and update him on its revised position and acknowledge or respond to the Emails. Instead, the Council’s decision to leave its enforcement case open, left Mr X without a response to the Emails or an enforcement decision. This was fault and it was regrettable. However, I did not find the Council’s decision to keep its enforcement case open and the resulting failure to respond to the Emails caused Mr X significant personal injustice needing a remedy. (See paragraph 4 of the statement.)
30. I also considered the steps taken by the Council, as summarised in paragraph 16 of this statement, to further investigate the planning use of the Site. The steps, with consideration of Mr X’s comments, were those I would reasonably expect the Council might take to establish the planning use of the Site. I therefore found no fault in how the Council further investigated the reported breach of planning control. Having further investigated the Site in a proportionate and suitable way, the Council could properly reach its view there was no breach. While I recognised Mr X disagreed with the Council, without evidence of fault, I could not question the Council’s view. (See paragraph 3.) However, in line with its previous correspondence with Mr X, the Council should act now to formally close its enforcement case. And, in writing to Mr X to tell him of its enforcement decision, it could respond, if and as appropriate given those circumstances, to the Emails. This would then put Mr X in the position he would have been in if the Council had closed its enforcement case, sending any necessary reply to the Emails, promptly after it had sent its fourth investigation update to Mr X.

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Decision

31. I found fault not causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman