Summary: Mr C complained about the Council’s handling of his planning and environmental control concerns regarding a neighbouring business, including anti-social behaviour. We found no fault in the process the Council followed to reach its views, and it did not cause unnecessary delays as the matters were progressed. Mr C did experience distress, and his residential amenity was impacted, but this was therefore not due to fault by the Council. However, there was some fault in its delayed complaints handling. The Council should apologise to acknowledge the uncertainty this caused Mr C.

The complaint

1. The complainant, Mr C, complained about how the Council has dealt with his concerns about developments, activities, and behaviour by a neighbouring business. This included:
• concerns about its decisions to grant planning approvals in 2014 to a neighbouring business, including the adequacy of the conditions attached to the approvals;
• it failed or delayed enforcing planning conditions and breaches of planning control since 2020; and
• it failed to take action against noise, waste, and anti-social behaviour issues caused by the neighbouring business since 2020.
2. Mr C said, as a result, he has experienced distress and uncertainty from the unauthorised activities.

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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. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. 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

8. I have investigated the Council’s handling of Mr C’s complaints about his neighbour’s business relating to planning control and environmental health issues between September 2022 and December 2024. Although, this is more than 12 months before he brought his complaint to our attention, I found it appropriate to exercise my discretion to consider this period. This is because the Council’s investigations were ongoing, and Mr C did not receive its final complaint response.
9. I have not investigated Mr C’s complaints about matters which occurred before September 2022 as these are late. This is because it took more than 12 months before it was brought to our attention and I have seen no good reason to exercise my discretion. The concerns include the Council’s:
• planning approvals and handling of related conditions between 2014 to 2019; and
• concerns about planning control or environmental control breaches prior to September 2022.
10. I have also not investigated any new or ongoing concerns since the Council’s complaint response in May 2024 as these were not part of the initial complaint and several of the issues have been subject to court action.

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How I considered this complaint

11. I considered evidence provided by Mr C and Council as well as relevant law, policy and guidance.
12. 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

Relevant law, guidance, and policy

Planning enforcement

13. 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.
14. 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.
15. 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.
16. 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).
17. 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.

The Council’s Planning Enforcement Policy

18. The Council’s policy sets out how it will consider reports of alleged breaches of planning control, which is in line with the process set out in the National Planning Policy Framework.
19. It will prioritise report of breaches of planning control depending on the nature and urgency of the alleged breach. Any timescales are its aims, but it may take longer to progress the reported concern.
20. It will as a minimum inform a complainant of key decisions such as recommending formal action or closing a case.

Statutory nuisances

21. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
22. Activities a council might decide are a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.
23. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other property; and/or
• injure health or be likely to injure health.
24. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
25. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
26. The law says that a potential nuisance must be judged on how it affects the average person. Councils cannot take action to stop something which is only a nuisance to the complainant because they have special circumstances, such as a medical condition which makes them unusually sensitive to noise or fumes.
27. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
28. If a council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice.
29. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
30. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. If they can show the court they have done everything reasonable to prevent or minimise the nuisance, the court may decide the abatement notice is not appropriate.

Anti-Social Behaviour

31. Councils and the police can issue community protection notices (CPN) to prevent anti-social behaviour which is unreasonable and having a negative effect on the community's quality of life. A CPN requires the behaviour to stop and, where appropriate, requires the recipient to take reasonable steps to stop it happening again. Not complying is an offence and may result in a fine or a fixed penalty notice.
32. Councils must issue a written warning (described as a ‘community protection warning’ or ‘CPW’) in advance of a CPN. The council should decide how long after the written warning to wait before serving a CPN. A person can appeal a CPN in the magistrates' court within 21 days of receiving it if they disagree with the council’s decision.

The Council’s corporate complaints policy

33. The Council changed its policy in late 2024 to a two-stage process. Prior to this, it had a three-stage policy, which said:
• it would respond to stage one complaints within 10 working days, which could be extended by a further 10 working days;
• it would respond to stage two complaints within 20 working days, which could be extended for a further 20 working days; and
• if a complainant remained dissatisfied, a stage 3 review could be requested which would be the final part of its complaints process.

What happened

34. Mr C lives in a rural area. He accesses his property from a public accessway from the highway. Mr C’s neighbour’s (Mr X) owns a business which fronts a highway and uses the accessway.
35. Mr X has applied for various planning permissions for his business. Some have been granted. This allows Mr X to use the land as a business subject to conditions imposed by the Council.
36. Mr C has since 2014 raised concerns to the Council about development and activities by Mr X. The Council opened an enforcement case and visited the site. Some warnings and notices were served on Mr X, and the Council decided not to take action regarding some concerns.
37. Mr C has since September 2022 continued to bring concerns about Mr X’s business to the Council’s attention. This has included:
• poor waste control, spillages, and lose materials, including some hazardous waste;
• noise nuisances during the day and night from works or people;
• light nuisances from work and a skylight;
• drainage concerns, including foul waste;
• burning of materials;
• planning control issues relating to some development, hours of business use, unlawful works, and people living on the site;
• anti-social behaviour by Mr X, or staff and visitors to the business; and
• obstructions of the accessway or highway.
38. The Council provided Mr C with log sheets, carried out site visits, and liaised with the Police, Highways Authority, and Environment Agency. It also met with Mr X on a number of occasions and provided warnings.
39. In Summer 2023 the Council reached its view on its enforcement case, which resulted in several parts of Mr C’s concerns not being progressed further. It shared the outcome with Mr C and explained its reasons. It also said it intended to take action on some parts of his concerns and to continue to monitor the situation.
40. Mr C was not happy with the Council’s decision and the limited action which had been taken. He asked the Council to reopen its enforcement case and shared further information and evidence about his concerns.
41. In response the Council explained its view on the points of Mr C’s concerns. It also put him in contact with its Environmental Health officer who was investigating his concerns.

Mr C’s complaint

42. Mr C asked the Ombudsman to consider his case in September 2023. However, at that time the Council had not completed its final stage its complaints process. We therefore ended our involvement, and asked the Council to respond to Mr C.
43. His complaint was about how the Council had dealt with his concerns regarding Mr X’s business. He said:
• concerns about its decisions to grant planning approval in 2014 to Mr X’s business, including the adequacy of the conditions attached to the approvals;
• it failed or delayed enforcing planning conditions and breaches of planning control since 2020; and
• it failed to take action against noise, waste, and anti-social behaviour issues caused by Mr X’s business since 2020.
44. The Council did not uphold Mr C’s complaint. It explained it had properly considered the planning approvals and attached conditions to mitigate any potential harm. It also explained how it had considered each reported concern Mr C had made, what it had found, and what action it had taken or why it had not found it expedient to take any action.
45. In November 2023, Mr C asked the Council to consider his complaint under its stage two complaints process. His complaint was extensive and very detailed.
46. In February 2024 the Council provided its response. It said it would only respond to key points and had sought up to date information. It again did not uphold the complaint, and did not agree it had caused delays in the enforcement process. However, it said:
• some planning control concerns would continue to be monitored and investigated; and
• its Environmental Health team had open complaints about noise nuisance, waste deposits, and the light nuisance which it continues to investigate and progress.
47. Mr C asked the Council to consider his complaint through its final stage 3 process in March 2024. The Council provided its response six weeks later. However, Mr C did not receive this.
48. When Mr C approached the Ombudsman again in September 2024, we asked the Council to resend the response, and this was shared with Mr C in November 2024.
49. The Council did not change its view in its final complaint response. However, it again explained its decisions and actions on each key point of Mr C’s reported concerns.
50. Mr C asked the Ombudsman to consider his complaint. In response to our enquiries the Council provided information about its consideration and enforcement of Mr C’s concerns regarding Mr X’s development, use and activities.
51. I understand since the Council’s final complaint response the matters have progressed. This includes an Anti-Social Behaviour Case Review following Mr C’s request, and a court has considered a case against Mr X under Environmental Protection legislation. In addition, further breaches of planning or environmental control have been reported, and the Council is investigating the new concerns.

Analysis and findings

52. I have considered the Council’s handling of Mr C’s concerns about Mr X’s business and activities since September 2022 until its complaint response in May 2024. It is clear several parts of his concerns have moved on since then. This includes some formal action through the courts.

The enforcement process

53. It is clear Mr C would have experienced an impact from Mr X’s running of his business, poor waste management, and noise. However, this does not in itself mean the Council was at fault.
54. I have considered how the Council investigated, and reached its views on Mr C’s planning control, environmental control, and anti-social behaviour concerns. Its records show it has since Summer 2023:
• considered and logged Mr C’s ongoing reports and concerns about Mr X’s activities and developments;
• investigated noise and light nuisances through site visits and Mr C’s log sheets. It served an abatement notice for noise during the night but subsequently took no further action as it found the activity ceased. It did not find a noise nuisance existed at other times or for other activities;
• visited the site on several occasions and met with Mr X regarding activities and waste concerns. This led to some areas being tidied up, but it subsequently served two fixed penalty notices under the Environmental protection Act 1990 relating to waste and activities on or near the highway. These were later considered by a Magistrates Court;
• liaised with other statutory bodies including the Fire Brigade, Police, and Environment Agency;
• kept some planning control concerns under review, but no formal action was taken as it found it was not expedient to action some unauthorised development and decided to prioritise the environmental issues;
• informed Mr C to report concerns about individuals’ behaviour to the police; and
• responded to Mr C when it found it appropriate to provide updates or its view on whether to action certain developments or activities. Due to the amount of communication from Mr C it did not respond to all the communication, nor did it give running updates to him.
55. I cannot say whether the Council caused delays prior to September 2022. However, I am not satisfied the Council caused unnecessary delays during the period of my investigation.
56. In reaching my view, I acknowledge there were parts of its investigations it could have addressed quicker. This included concerns about planning control and Mr X was allowed more time to respond or engage. However, the Council was entitled to decide how best to address the concerns it had identified, some of which could be actioned under environmental protection legislation and others through planning control. The evidence shows the identified concerns were progressed, although I acknowledge not as quickly as Mr C would have liked.
57. As I have not found fault in the process the Council followed, I cannot criticise the merits of its decisions. It therefore reached decisions it was entitled to make. I was also mindful the matters have since progressed and the Council was aware of Mr X's personal circumstances which influenced its decision making.

Anti-Social behaviour

58. The evidence shows the Council considered Mr C’s reports about anti-social behaviour by Mr X, his staff, or other persons in the area. It did site visits and asked Mr C to complete logs of events. However, it was not satisfied there was enough evidence for it to take any action. This was a decision it was entitled to make.
59. The Council also told Mr C to report some activities to the police, which was the body responsible for considering some of the concerns, and an Anti-Social Behaviour Case Review was started in late 2024 following Mr C’s request. I understand Mr C has a complaint with the police about its handling of his concerns, which is not within the Ombudsman’s jurisdiction to consider.

Complaints handling

60. I have considered how the Council handled Mr C’s complaint through its corporate complaints process. This evidence shows it took the Council:
• five weeks to respond to his stage one complaint, which was at least a week longer than set out in its policy;
• 15 weeks to respond to his stage two complaint, which was significantly longer than set out in its policy; and
• seven weeks to respond to his stage three complaint. Although, Mr C did not receive this, the Council has showed evidence this was sent at the time.
61. I found some fault by the Council for causing delays in its handling of Mr C’s complaints. It was not at fault for how it responded as I would not expect it to address each and every part of his detailed complaint. I also acknowledge it did email Mr C to explain its responses would be delayed, Mr C’s complaints were complex, involved ongoing investigations, and the amount of correspondence was significant. I am therefore satisfied an apology to Mr C for the uncertainty this caused him would be appropriate.
62. I have not made any service improvement recommendations, as the Council has since changed its corporate complaint policy and process.

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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 uncertainty its delayed complaints handling 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.

64. The Council should provide us with evidence it has complied with the above actions.

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Decision

65. I have completed my investigation with a finding of no fault on the substantive parts of the complaint. However, there were some delays in the Council’s complaints handling, which caused Mr C uncertainty. The Council will apologise to acknowledge the impact this had on him.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman