Summary: The Council was not at fault for its planning enforcement action about a raceway near Mr X’s home. The Council was entitled to make the decisions it did, and it made its decisions without fault. So, we cannot challenge the outcome.

The complaint

1. Mr X complained the Council failed to take enforcement action about a raceway near his home which he said causes noise and light pollution in an area of outstanding natural beauty.
2. Mr X said there is excessive noise at weekends. He said in summer he has to close his windows and doors or go elsewhere to avoid the noise.

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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. 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(1), as amended)

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How I considered this complaint

5. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. I considered the relevant legislation and statutory guidance, set out below.
6. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.

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What I found

What should have happened

Section 106 agreements

7. Councils may approve planning applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.
8. A party to section 106 agreement can apply to modify or discharge an obligation within it.

Planning enforcement

9. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
10. 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.
11. 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.
12. 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)

What happened

13. Mr X lives near a raceway. There is a section 106 agreement which sets out certain conditions on the raceway so there is a balance between the raceway’s business and the impact on the local environment.
14. In 2024, the raceway changed ownership. Mr X told the Council the new owners were breaching the section 106 agreement because they held too many races, the races went on for too long, and they were too loud.
15. The owners submitted a planning application to the Council to discharge the section 106 agreement.
16. In 2025, Mr X complained.
17. The Council told Mr X it was not reasonable for the Council to take enforcement action before it had made a decision on the owners’ planning application. It said the planning application sought to address the problem and the Council might find the application acceptable.
18. The Council said it was not going to take court action against the owners at that stage. It explained this was because court action is a time consuming and costly process which was not likely to improve compliance with the section 106 agreement. The Council said it needed to be satisfied that court action was reasonable, expedient and in the public interest before starting that action. It said while it was considering the planning application, it did not consider these tests had been met.
19. The Council said the owners had agreed to comply with the section 106 agreement. It said when the owners continued to breach the agreement, the Council warned the owners again “with suitably robust wording”. The Council said the owners had agreed to comply. The Council said it would continue to monitor the situation.
20. Mr X then complained to the Ombudsman.
21. In early 2026, the Council refused the planning application. The reasons for this were that discharging the section 106 agreement without imposing new controls or obligations would be likely to result in more frequent noise. The Council said this was not acceptable for the area or the residents. The Council also said it would be contrary to a number of strategies and policies.

Analysis

22. I have considered the action the Council took in response to reports of breaches of the section 106 agreement.
23. The Council decided to take informal enforcement action to address the breaches. The Council worked with the owners and got assurances they would comply with the section 106 agreement.
24. When the owners breached the section 106 agreement again, the Council decided to warn the owners with stronger language. The Council decided to do this because at that time it was considering the owners’ planning application to discharge the section 106 agreement. This was a decision the Council was entitled to make.
25. Deciding the owners’ planning application was a way the Council could formally consider the issues. The Council considered the planning application and refused it.
26. Mr X complained the Council failed to take enforcement action. I do not agree. I am satisfied the Council took informal action. I find no fault with the way the Council made its decision on what kind of enforcement action to take. I therefore cannot challenge the outcome of the Council’s decision.
27. The Council decided not to take formal enforcement action through the courts, which is what Mr X wanted. This is not evidence of fault.
28. Mr X complained the Council delayed taking action. The evidence shows the Council has been in regular contact with the owners, working to achieve compliance with the section 106 agreement. I find no evidence of delays.
29. Mr X said there was an unhealthy relationship between the Council and the owners because the Council allowed the owners to apply to discharge the section 106 agreement. He said the Council told the owners they could regularise the breaches with a planning application and planning permission. Mr X said the Council was always minded to grant planning permission.
30. I do not agree. People are allowed to submit planning applications to regularise breaches. This is a common way for councils to properly consider the issues that are causing planning breaches. Councils can and should tell people about their right to submit a planning application to try to regularise planning breaches.
31. Councils should then consider those planning applications, as the Council did in this case. The Council refused the planning application meaning the owners could not regularise the breaches.
32. The Council told the Ombudsman that since it refused planning permission, there has only been one reported breach of the section 106 agreement. This is positive and shows the Council’s enforcement action has had the desired effect.
33. For these reasons, I do not find the Council at fault.

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Decision

34. I find no fault.

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Investigator's decision on behalf of the Ombudsman