Summary: We will not investigate this complaint about the Council’s failure to take enforcement action against breaches of planning control. We have not seen enough evidence of fault in the Council’s actions to justify an investigation.

The complaint

1. Mr X complains for himself and members of a resident’s association. He says the Council has failed to act on repeated reports of a person, Y, running a commercial business from their home.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by Mr X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Local planning authorities can take enforcement action if they find a person has breached planning rules. However, local planning authorities should not take enforcement action just because there has been a breach of planning control.
6. Government guidance, “Ensuring effective enforcement”, says local planning authorities should act in a proportionate way. They have discretion to take enforcement action when they regard it is as appropriate to do so. They should consider the development plan and any other material considerations.
7. In considering any enforcement action, local planning authorities should have regard to the National Planning Policy Framework (NPPF). This sets out government's planning policies for England and how these are expected to be applied. Paragraph 58 says: “Effective enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control”.
8. Mr X says the Council has ignored multiple reports made about Y running a commercial business from their home.
9. The Council confirms it visited the site. It says the officer found insufficient evidence to determine Y is running a commercial business. It therefore served a Planning Contravention Notice on Y for more information.
10. A Planning Contravention Notice is a formal request for information issued by a local planning authority when they suspect a breach of planning control on a property or piece of land. It is used to gather evidence in a planning enforcement investigation.
11. A failure to complete or return a notice within 21 days or providing false or misleading information on the notice is an offence under the Town and Country Planning Act 1990.
12. After assessing the information gathered from the site visit and the response to the Planning Contravention Notice, the Council decided there was not enough information to confirm that a material change of use had occurred at Y’s property. Because of this, it is considered there was no good reason to take any enforcement action against Y for a breach of planning control.
13. We expect councils to consider allegations of a breach of planning control and decide what, if any, investigation is necessary. If a council decides there is a breach of planning control, it must consider what harm is caused to the public before deciding how to act. Providing the council is aware of its powers and follows this process, it is free to make its own judgments on how or whether to act.
14. In this case, the Council considered the information it received with the reports of breaches of planning control, conducted a site visit, and gathered information by issuing a Planning Contravention notice.
15. After the Council had reviewed this information, it decided there was not enough evidence of a breach of planning control. The Council also provided contact details for its Environmental Health team who can consider reports of nuisance caused by noise, light or air pollution. Statutory nuisance is subject to a different regulation regime to planning control. It also provided contact details for its Anti-Social Behaviour team for Mr X to use if needed.
16. I understand Mr X and members of the resident’s’ association disagree with the Council’s decision and want it to take enforcement action. However, this was a decision the Council was entitled to take based on the information it had received.

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Final decision

17. We will not investigate Mr X’s complaint because we have not seen enough evidence of fault in the way the Council decided not to take enforcement action following reports of breaches of planning control.

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Investigator's decision on behalf of the Ombudsman