Summary: We found fault on Mr Y’s complaint about the way the Council dealt with his reports of a neighbouring business site breaching planning regulations. It could not provide copies of correspondence with the site. Nor did it show what it was doing for eight months in 2024. It failed to keep him updated at key stages. The Council agreed to send him a written apology, pay £150 for the injustice caused, remind relevant officers of the need to properly keep records, and to keep reporters updated at key moments of their investigation. It will ensure cases are progressed without delay, keep Mr Y updated about action on his reports, and review why there was a delay. There was no fault with its response to his reports of a statutory nuisance. It continues to consider its planning enforcement options.

The complaint

1. Mr Y complains about the Council failing to:
1. take enforcement action against a neighbouring business which changed the planning use of the premises;
2. take enforcement action against the business for erecting fencing round the premises, installing a pump housing structure, and poles to the front without consent;
3. enforce planning conditions across the whole site; and
4. investigate, and consider, whether it could take enforcement action for nuisance from the premises.
2. As a result, he is regularly disturbed by noise from the premises which is only on the other side of his boundary.

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The Ombudsman’s role and powers

3. 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)
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)

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What I have and have not investigated

6. The law prevents us from investigating late complaints unless we decide there are good reasons.
7. Mr Y complained to us in December 2024 which means we would usually only look at events from December 2023. I exercised discretion to investigate this complaint from July 2023 as this was the date a court order was made.
8. Reference to events outside of this period is to help put the complaint into context.

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How I considered this complaint

9. I considered evidence provided by Mr Y, the notes I made of our telephone conversation, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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What I found

Planning law and guidance

10. Planning uses of land, or ‘use classes’, are set out in regulations. They cover a range of typical uses, like residential, business, industrial, and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind,’ or ‘unique’.
11. Planning permission is usually needed to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the council to decide.
12. Councils can take enforcement action if they find a breach of planning rules. They 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.

Council planning enforcement plan (December 2024)

17. It aims to protect amenity, such as residential amenity, and act fairly, consistently, and proportionately. It will consider whether there is a breach of planning regulations, whether this could be resolved through negotiation, whether the breach causes harm, and whether enforcement is expedient. Resolution without the need for formal legal action is a primary aim as this resolves the planning breach in the most effective way. Formal action may be considered where this is not possible.
18. It is not required to enforce simply because a breach has happened. Enforcement is discretionary. If negotiation is not successful, it has a range of enforcement powers available. This includes enforcement notices, and even criminal proceedings where there has been an offence.
19. It will aim to keep those who reported a breach updated at key points in the enforcement process. This would include when a site visit has been done and it can confirm there is, or is not, a breach and what action, if any, it would take.

What happened

20. Mr Y has lived in his house since 2018. Next to it is a business site. The site has been used by at least three different firms. He reported they failed to follow planning consent given or had not applied for planning consent at all for business activities.
21. He complained about the following breaches on the site:

• A car wash: This was removed more than 12 months ago, but it was in place for more than five years.
• A canopy: The Council confirmed it, and the supporting poles, were removed.
• A power pump: This was still on site.
• Two poles to the front of the site.
• Front court area: This only has consent for sales, but servicing cars is done on it.
• Fencing to the front of the site: The Council said this was partially reduced in height to look less intrusive.
• Fencing to the rear of the site: This encroaches on to his land.

22. Despite his reports, and the Council’s involvement, he complains little has been done about planning breaches. He was unhappy because the site is in the green belt, and his amenities are affected by site activities. He was also unhappy little was done with his reports about noise from the site.

2020:

23. A noise abatement notice was served on the site in June 2020 which led to the relocation of the jet wash and its rehousing within an enclosure. This was after Mr Y reported noise from the car wash and tyre change business.
24. In August, the Council served an enforcement notice (the Notice) on one of three firms on the site which was effective the following month. This said:

• there had been a change of use of the land from car sale/service station to a hand wash/valet and vehicle repair/tyre fitting and storage use.
• there was an unauthorised canopy structure, a palisade fence, two large metal poles, and a pump housing structure to the front of the site. It did not consider planning consent would be granted for these changes. The firm had until December to comply.

2023:

25. In January, the Council prosecuted a firm on site because the Notice still applied. This was about the refused consent for the retention of the high fence and alterations to palisade fencing. The firm never sent a planning application it said it would the year before.
26. The courts also issued the site owner with a large fine at the conclusion of prosecution proceedings.
27. The environmental health team visited and found no statutory noise nuisance. It explained since serving the noise abatement notice in 2020, no formal action was taken against the firm on site. This was because no other nuisance was witnessed. This was despite visits in 2022 and 2023. Noise mitigation measures were discussed with the owner during this period. Further site visits were offered following Mr Y’s reports of noise in October 2023, but Mr Y declined them.
28. Mr Y complained the Council failed to enforce nine out of 11 conditions on a previous planning consent which applied to the whole site.
29. The Council explained many of the conditions were granted more than 30 years ago and were no longer entirely relevant or enforceable today because of the passage of time, or how the site now operated. As the use of the site was currently unlawful, many of the conditions do not apply because the land use has changed.
30. The conditions Mr Y claimed the Council failed to enforce were:

• Condition 1: This was about starting development within 5 years of the consent and the Council confirmed this was complied with.
• Condition 2: This limited the number of cars for sale on site to 25 but the Council confirmed there were no cars for sale.
• Condition 3: This wanted a plan showing provision for eight car parking spaces. The Council confirmed there was enough room on the forecourt for 8 cars.
• Condition 4: This wanted drawings which showed turning space for loading/unloading. The Council confirmed there was enough space for vehicles to turn and to make deliveries.
• Condition 5: This was about hours of operation. The Council confirmed it was addressed by the Notice which wanted the use of the land to stop.
• Condition 6: This was about external lighting. The Council said there were no changes.
• Condition 7: This said written consent was needed for the display of adverts. The Council explained it sought their removal with the ending of the illegal land use.
• Condition 8: The Council confirmed the canopy, and pumps, were removed as required by this condition.
• Condition 9: The Council explained when the site’s current use ends, petrol will be emptied and made safe as required.
• Condition 10: This said no fences, walls, or other structures shall be erected without consent and the Council confirmed this was covered by the Notice.
• Condition 11: This condition was about landscaping but has expired.

31. The Council received a report from Mr Y about noise from the site in 2023, but no statutory nuisance was found. The jet wash was removed the same year. In October, Mr Y refused an offer of further site visits.
32. Environmental Protection received no reports about a hazard from stored tyres or of vermin from Mr Y.

2024:

33. In April, the Council opened an investigation of a possible breach of planning consent which it continues to look at.
34. Officers visited the site in December and decided to carry out a further site visit. The Council told Mr Y’s councillor there continued to be a breach of planning control with the palisade fencing along the site boundaries. There were ongoing negotiations and discussions with the owners about lowering their height which led to the submission of a planning application which it would consider.

2025:

35. In January, officers met to review the enforcement investigation and previous legal prosecution. It confirmed there was an ongoing breach about the palisade fencing, use of the site for car sale and repairs, and tyre storage. Officers met with the legal team and began drafting a witness statement along with the gathering of evidence for a further follow up prosecution. The car repairs and storage business to the rear of the site would be logged as a separate enforcement complaint.
36. The Council logged another report and carried out a site visit. I have seen a copy of the site visit notes. This report was about the land being used as a vehicle repair unit. It was looking at taking further prosecution action against the site for failing to comply fully with the Notice. It was also serving a separate enforcement notice on the site. This was about the subdivision of land to the rear of the site and its unauthorised use. The Council confirmed this case remained under investigation.
37. It was also looking at a further prosecution for breach of planning consent. The Council awaited a court hearing date. This was about the lack of compliance with the Notice. There was a separate enforcement complaint about the car repairs and car storage business activity which appeared to be separate to the lawful MOT business use to the rear of the site. Officers were completing the draft enforcement notice for this breach.

My findings

38. I found the following on Mr Y’s complaints:
1. The Council was unable to provide copies of any correspondence with the site owners or any of the businesses operating there. This was fault. I consider this caused Mr Y an injustice because he has the uncertainty of not knowing whether the Council was in contact with them about his reports and breaches. When considering this, I also took account of a copy letter to the site in one of the prosecution files the Council sent.
2. There was no evidence showing what the Council was doing from April 2024, when it opened an investigation, to December 2024, when officers visited the site. This was fault. I am satisfied this caused Mr Y an injustice as he has the uncertainty of not knowing what the Council was doing during this period.
3. Nor have I seen any evidence of the Council keeping Mr Y informed about what was happening between April and December 2024. This was fault as I consider these were key moments in the investigation process under its enforcement policy. I am satisfied this caused Mr Y an injustice because he was unaware of what was happening.
4. I am satisfied there was no fault in terms of its consideration of the breach of the conditions Mr Y reported. This was because most were either not relevant, resolved, or the Council had pursued them.
5. The Council continues to investigate breaches and is considering further prosecution and enforcement notices.
6. I found no fault on Mr Y’s complaint about the Council failing to investigate reports of statutory nuisance. This was because I am satisfied it investigated the reports Mr Y made about nuisance.

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Action

39. I considered our guidance on remedies.
40. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send a written apology to Mr Y for the injustice caused by the following failures: not keeping records of contact with the site owner and site businesses about enforcement issues; not showing what was happening between April and December 2024; not keeping him informed of what it was doing.
2. Pay £150 to Mr Y for the injustice caused by the fault identified.
3. Remind relevant officers of the need to keep records of contact with those being investigated by planning enforcement.
4. Remind relevant officers of the need to keep updated those who report breaches of planning consent at key moments of its investigation.
5. Ensure planning enforcement cases are progressed without avoidable delay.
6. Review why the delay progressing the investigation of his reports between April and December 2024 happened and ensure it acts to ensure this cannot be repeated on future cases.
7. Keep Mr Y informed about what action it continues to take on his reports.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. I found fault on Mr Y’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman