Summary: Mrs X complained about the Council’s handling of her report of a breach of planning control near her home. We found no fault in how the Council decided not to take enforcement action. But there was fault in both the Council’s poor communication with Mrs X and its complaints handling. To address the avoidable frustration and time and trouble caused by those faults, the Council agreed to apologise and make a symbolic payment to Mrs X.

The complaint

1. Mrs X complained about the Council’s investigation into a breach of planning control near her home. Mrs X said the Council took too long and failed to properly consider all relevant evidence and issues in deciding not to take formal enforcement action. Mrs X also complained about the Council’s poor communication.
2. Mrs X said the breach harmed the local area. And the Council’s failure to act had worsened relations between residents, including herself, and the developer which caused significant distress.
3. Mrs X wanted the Council to properly consider all the available evidence recognising the harmful impact of the development on both the area and residents, and to change its decision. Mrs X also wanted apologies for both the time the Council had taken to investigate the breach and its poor communication.

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The Ombudsman’s role and powers

4. 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 a council made its decision. If there was no fault in how the council made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. 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)
7. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. If we are satisfied with a council’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

9. I considered evidence provided by Mrs X and the Council. I also considered relevant law, policy and guidance. I shared Council information with Mrs X. I also gave Mrs X and the Council 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

Background

Local Government reorganisation

10. Mrs X reported the breach of planning control at the centre of this complaint to her then local council (‘council one’), which opened a planning enforcement case. The enforcement case remained open when local government reorganisation took place on 1 April 2023. On reorganisation, North Yorkshire Council replaced councils in North Yorkshire, including council one. In this statement North Yorkshire Council is ‘the Council’. And, on 1 April 2023, the Council became responsible for Mrs X’s open planning enforcement case.

Planning permission and development management

11. Councils have powers to create ‘conservation areas’. A conservation area has special architectural or historic interest whose character or appearance should be preserved or enhanced. Councils are under a duty to pay special attention to preserving or enhancing conservation areas when making planning decisions. (See: Sections 69 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, as amended.)
12. Most development needs planning permission from the local council. However, the law provides for ‘permitted development’, which usually does not need council approval. To be permitted development, the development must meet detailed legal rules. If development does not meet all the relevant rules, it will need express planning permission from the council. (See: The Town and Country Planning (General Permitted Development) (England) Order 2015, as amended.)

Planning enforcement

13. Councils have legal powers to take enforcement action if they find a breach of planning rules. (See Part VII of the Town and Country Planning Act 1990, as amended.) 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)
14. Where councils consider there may have been a breach of planning control, they may serve the landowner and occupiers with a Planning Contravention Notice (PCN). A PCN asks questions about the use and development of the land. The owner and occupier must respond to the questions within 21 days. It is a criminal offence not to reply to a PCN or to knowingly or recklessly make a false or misleading response.
15. As planning enforcement is discretionary, councils may decide to take informal action or not to act at all. 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. (A retrospective planning application is an application made after development takes place.) To issue a formal enforcement notice, councils should be satisfied it is ‘expedient’ to do so having considered their planning policies and other relevant planning matters.
16. The Council is preparing a planning enforcement policy that will cover its administrative area. Meanwhile, it uses the policies it inherited on 1 April 2023 from the former councils. Here, the Council used council one’s policy (‘the Policy’). The Policy reflected the law and NPPF saying that planning enforcement was discretionary and any action should be proportionate. The Policy said any formal action was dependent on whether a breach seriously affected public amenity or existing land uses meriting protection in the public interest. And, informal resolution would usually take place before any formal enforcement action. This included asking for retrospective planning applications. And, if a developer did not make a retrospective application, it would decide whether formal enforcement action was ‘expedient’.
17. The Policy said, while all reported breaches would be investigated, cases were ranked as needing immediate action and then as priority one, two and three. Ranking took place because it was not possible to respond immediately to all cases. However, all reported breaches would be acknowledged within three working days. And, within 25 working days, the person reporting the breach would receive an update.

Complaints handling

18. The Council has a two stage corporate complaints policy (‘the Complaints Policy’). In summary, at stage 1 the relevant service department should respond to the complaint within 15 working days. If dissatisfied with the stage 1 response, people may ask the Council to consider their complaint at stage 2. At stage 2, a Council officer not previously involved with the matter complained of, will respond within 20 working days. The Council will let complainants know if it needs more time to respond at stages 1 and or 2. The Council may also refuse to investigate at stage 2 if, for example, it considers earlier responses have fully and properly addressed the complaint.

A summary of key events relevant to the complaint

19. A few years ago, Mrs X contacted council one to report a breach of planning control near her home (‘the Works’). Council one immediately acknowledged Mrs X’s report. The next day, a planning enforcement officer told Mrs X a site visit would take place within the next two weeks and with an update provided in about five weeks.
20. After about five weeks, Mrs X asked council one for an update and continued to contact it over the following three months for updates. Council one responded to Mrs X’s requests for updates and said a backlog of cases and staff shortages were affecting the time taken to deal with cases. Mrs X’s case was also reallocated as the planning enforcement officer originally dealing with it left council one. After about four months, council one had made site visits, gathered evidence, and officer discussions were continuing about the case. Council one had also referred Mrs X to her local Parish Council, with whom it was in touch about the Works, for updates about the case.
21. Over six months later, having received information from the Parish Council, Mrs X contacted council one to report increasing local tensions linked to the Works. Council one said it was still investigating and a key issue was evidence about whether the Works were permitted development. Over the next few weeks, Mrs X contacted council one about evidence of the Works and, receiving no response, complained.
22. Following local government reorganisation, the Council responded to Mrs X referring to relevant rules about permitted development. The Council said it had added Mrs X’s information to the enforcement file. The Council also apologised saying staff shortages were delaying enforcement cases. Over the following five months, Mrs X contacted the Council for updates. The Council replied telling Mrs X it was trying to recruit planning enforcement officers. The Council also confirmed the enforcement case for the Works remained open.
23. A Council planning enforcement officer (‘the Officer’) then started to contact Mrs X and said they wanted to visit the site. Mrs X questioned the need for another visit and pointed to the evidence the Council held from her and the Parish Council. About a month later, after a site visit, the Officer told Mrs X the Works did not appear to be permitted development. The Officer said the developer had 28 days to make a retrospective planning application after which it would update Mrs X.
24. Nearly three months later, and about two years after reporting the Works to council one, Mrs X contacted the Officer and asked for an update. The Officer said discussions were continuing.
25. A month later, Mrs X again asked for an update. The Officer replied that informal resolution had been unsuccessful and so the Council had sent the developer a PCN. Once it had the developer’s response, the Council would decide its next steps.
26. After receiving the PCN response, the Officer prepared a report on the case (‘the Report’) that recognised the Works had taken place in a conservation area. The Report referred to internal consultations and discussions including with highway, conservation and commons registration officers. The Report also set out relevant law, including how the Works’ height affected whether it was permitted development. But, the law did not say how height should be measured. The Report said site measurements showed height variations meaning, in places, the relevant permitted development rules were not met. Without clarity on how and where to measure, it had to consider the case in context, with common sense, and giving words their natural and ordinary meaning. The Report also said formal enforcement action should be reasonable, proportionate, in the public interest, and expedient. The Report found that, as ‘height’ depended on where it measured the Works, they might be permitted development and so enforcement action was not expedient.
27. The Officer passed the Report to a senior planning officer to decide whether to take enforcement action. Mrs X contacted the Council for an update and the Officer said they were awaiting a response to a report.
28. A senior planning officer then decided to take no further action and closed the case. The Council wrote to Mrs X and other interested parties explaining its decision. It was about three months since the Council had received the developer’s response to the PCN and nearly 29 months since Mrs X had reported the Works to council one.
29. About a week later, Mrs X complained to the Council about its handling of the enforcement investigation, including the time taken, and its decision. In summary, Mrs X said the Council’s site visit measurements had shown the Works exceeded the height for permitted development. The Works damaged the conservation area, seriously affected public amenity, and set a dangerous precedent.
30. Over three months later, the Council replied, apologising for its delay. In summary, the Council referred to the matters it had considered to reach its decision, including there being no legal rule about measuring the height of the Works. The Council said the case had been the subject of lengthy investigation. If legally challenged, it did not consider it could defend the Works as breaching planning control. Formal enforcement action therefore was not expedient. The Council also said it found the planning merits of the Works acceptable and so any enforcement action would have been solely to regularise a breach.
31. Mrs X asked the Council to consider her complaint at stage 2. Among the points raised by Mrs X was the Council’s failure to consider how the Works harmed the conservation area and residents. Mrs X also said the developer had admitted the Works exceeded the permitted development height. The Council replied about six weeks later and refused to consider the complaint at stage 2. The Council said it had provided a full response at stage 1 and further investigation would not achieve more for Mrs X.

What the Council told us

Planning enforcement

32. The Council said council one had registered Mrs X’s case as ‘high priority’. But it held no written records of the enforcement investigation before the Officer’s involvement. It understood council one had not replaced its sole planning enforcement officer before local government reorganisation on 1 April 2023. And the role of council one officers remaining in post before reorganisation had been reactive: to respond to enquiries received from residents.
33. The Council said, once aware no planning enforcement officer had transferred to it from council one, it advertised another planning enforcement post and later appointed the Officer. The Officer then had to prioritise and handle a significant case backlog. But the Officer had contacted Mrs X within three weeks of starting work with the Council.
34. The Council said it completed its investigation, acting in line with the Policy, within nine months of the Officer’s appointment. It had provided an update to Mrs X and other interested parties following the Officer’s first site visit. It had also written to Mrs X during its investigation and to explain its enforcement decision. Its decision took account that it was not possible to decide conclusively if the Works breached planning control.
35. The Council explained it had prepared an improvement and transformation plan to strengthen its planning enforcement procedures and case handling. It now reviewed case priority after a first site visit to improve consistency and had improved its case management record keeping. Its enforcement officers held regular case reviews with senior planning officers. And, a senior planning officer had to consider a report on an investigation and make the enforcement decision before it closed a case. It also regularly updated interested parties including about its early conclusions and to later advise of significant steps. Having completed a significant recruitment exercise since reorganisation, it now had a programme of officer training. It was also working through its case backlog and aiming soon to adopt a new area wide enforcement policy.

Complaint handling

36. The Council accepted its two complaint responses did not meet its published time targets. The delays arose from a combination of staff shortages and the high number of complaints. Mrs X’s complaint was also complex as the reported breach raised matters dealt with by different Council services. The Council recognised it could have been more proactive in contacting Mrs X about its delay.
37. The Council set out the steps it had and was taking to improve its complaints handling. For example, it had developed a centralised complaints procedure. It had also provided guidance and training to relevant officers. The Council recognised there remained work to do, including providing extra support for service departments facing high complaint numbers. It was also setting up procedures to identify and set priorities for handling overdue complaints.

Consideration

Introduction

38. We are not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the procedures a council followed to make its decision. If we consider it followed those procedures correctly, we cannot question whether the decision was right or wrong, regardless of how strongly a complainant may disagree with the decision.
39. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer all questions or respond to every issue raised by a complainant in their complaint. Here, Mrs X’s complaint concerned the Council’s decision not to take formal planning enforcement action. So, the focus of my investigation was whether there was evidence of fault in how the Council reached that decision. And, if there was such fault, whether it had potential to have caused Mrs X significant personal injustice.

Late complaints

40. Mrs X reported the Works as a breach of planning control to council one about three years before complaining to us. But Mrs X complained to us soon after the Council told her of its enforcement decision. An investigation now that started with events that took place three years ago would be a late complaint (see paragraph 6 of this statement). However, I could investigate how the Council dealt with the reported breach in the 12 months before we received the complaint.
41. Mrs X’s evidence showed she started to press council one for action on the breach soon after reporting it. And, throughout the following three years, Mrs X continued to chase first council one and then the Council for action. I found Mrs X did not let her concerns about the breach rest for any significant time throughout the three years. And, when Mrs X complained to us, she raised concerns about the time taken to investigate the breach. Mrs X said both councils had indicated a breach had taken place but the Council finally decided not to take enforcement action. In the circumstances, rather than limit my investigation to the 12 months before receipt of the complaint, I exercised my discretion to consider events back to when Mrs X reported the breach.

Planning enforcement

42. The Council said council one classified Mrs X’s case as ‘high priority’. This was not a classification set out in the Policy. However, I found, on balance, that ‘high priority’ most probably meant ‘priority one’. This was because Mrs X said, the day after she reported the Works, council one told her a site visit would take place within two weeks and she would receive an update within five weeks. I found council one’s initial response to Mrs X reporting the Works was in line with the Policy.
43. Mrs X’s evidence suggested the first site visit was most likely carried out about three to four weeks after she reported the Works. Mrs X also said the developer completed the Works in about a week. So, even if a first site visit had taken place within two weeks, it might have been too late to see and measure the site before completion of the Works. I therefore found there would more likely than not have always been uncertainty about site conditions. This included uncertainty about ground levels, and where and how to measure the Works. And, here, how and where the Works were measured affected whether they were permitted development or breached planning control. Given the uncertainty, on balance, I did not find the time taken by council one to first visit the site or that further visits by both councils affected the final enforcement decision.
44. Planning enforcement may take months, and sometimes years. However, here, the evidence showed avoidable delay in the early stages of the investigation, which was fault. The delay mainly arose from staff shortages leading up to and after local Government reorganisation, which resulted in a backlog of enforcement cases. I also found the time taken to investigate the Works before the Officer’s recruitment adversely impacted Mrs X causing avoidable frustration and distress, which was injustice.
45. After appointing the Officer, it took the Council about nine months to complete its enforcement investigation. During the nine months the Council engaged with the developer, issued a PCN and considered the developer’s response to the PCN. The Officer also visited the site and engaged with and sought information from the local Parish Council. And the Officer liaised with other Council officers, including about the Work’s impact on the conservation area and the rights over and status of nearby land. Mrs X was also able to send information to the Council. These were actions reasonably to be expected in investigating whether the Works breached planning control. And I found no fault in how the Council investigated the Works during those nine months.
46. I recognised Mrs X considered the Council did not properly consider all the relevant evidence, including the Works being within a conservation area. However, the Report provided evidence the Council considered the relevant legal and planning issues, including the Works being in a conservation area. The Report also addressed the lack of any legal definition in relevant legislation about natural ground levels and so how the Council should measure the Works. I found no fault in how the Council presented the findings of its active investigation in the Report.
47. While it took time, I did not find substantive avoidable delay by the Council during the nine months of its active investigation. I also did not find the overall time taken, which included avoidable delay before appointment of the Officer, affected the final enforcement decision. Having investigated and considered the relevant planning and land use issues, the Council was entitled to reach its enforcement decision. Unfortunately for Mrs X, that decision was not to take enforcement action. However, as I found no evidence of fault in the Council’s active enforcement investigation, I could not question its decision, although I recognised the strength of Mrs X’s objections to the Works.

Communication

48. The evidence showed Mrs X often asking for information and chasing both council one and the Council for updates during their enforcement investigation. I recognised both councils generally responded to Mrs X when she made contact. However, the evidence did not show either council actively engaged with Mrs X during the investigation.
49. When the Council took over the case, the Officer later decided to carry out their own site visit and effectively review and reconsider whether the Works breached planning control. I did not criticise the Council in taking this approach. Much formal planning enforcement action includes legal appeal rights and may lead to court action. The Council therefore needed to reach its own view on the evidence given council one had not made a final decision on Mrs X’s case before local Government reorganisation. However, having adopted that approach, active engagement would have helped manage Mrs X’s expectations about future communication and the likely timescale for a decision. So, on balance, I found the Council’s communication with Mrs X fell below acceptable administrative standards and caused avoidable frustration.

Complaints handling

50. There was no dispute the Council failed to meet its time targets in responding to Mrs X’s stage 1 and stage 2 complaints. While probably of little comfort to Mrs X, I thanked the Council for now recognising it delayed and could have better kept in touch with Mrs X about those delays. However, the delay at both stages was significant and avoidable, which was fault. The delays would likely have added to Mrs X’s frustration and put her to avoidable time and trouble in chasing for a response. I therefore found the delays caused injustice.
51. In considering other complaints, we had found fault with the Council’s corporate complaints handling and it had agreed service improvements to address matters. The Council set out its progress in implementing those service improvements. I recognised it takes time for planned improvements to positively impact service delivery especially where case backlogs exist. I was satisfied the Council was working to put in place previously agreed service improvements and wanted to provide a timely and transparent complaints service. I therefore found no need now to recommend further service improvements.

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Action

52. The Council agreed my recommendation to (within 30 working days of this statement):

• send a written apology; and
• make a symbolic payment of £200,

to Mrs X in recognition of her avoidable distress and frustration caused by its poor communication and avoidable time and trouble in pursuing her complaint.

53. The Council also agreed to provide us with evidence of its compliance with the actions at paragraph 52.
54. We publish guidance on remedies which covers making effective apologies. The Council should consider this guidance in making the apology at paragraph 52.

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Decision

55. I found fault causing injustice. The Council agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman