Shropshire Council (18 000 607)

Category : Planning > Other

Decision : Upheld

Decision date : 14 Dec 2018

The Ombudsman's final decision:

Summary: The Council took a suitable approach to planning enforcement action on a site but allowed a short period of undue delay which caused the complainant unnecessary frustration. The Council did not keep adequate records of its actions, which was fault.

The complaint

  1. Mr and Mrs X complained about delays in enforcement action by the Council on a dilapidated site next to properties they developed for sale.
  2. During my investigation sadly Mrs X died unexpectedly.
  3. Mr X says these delays cost them financially, in running costs due to sales falling through because of the state of the site, legal costs chasing the Council to take action and a loss of property value once the properties sold, plus unnecessary time and trouble pursuing these matters.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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(i), as amended)

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How I considered this complaint

  1. I have spoken with Mr X and considered written information provided by him.
  2. I have considered comments and documents provided by the Council.
  3. I have considered:
    • the National Planning Policy Framework (2012) on enforcement;
    • the relevant sections (s330 and s215) of the Town and Country Planning Act 1990 on interests in land and maintenance of land;
    • the Town and Country Planning Act 1990 Section 215 Best Practice Guidance (2005); and
    • the Council’s Planning enforcement protocol.
  4. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

  1. The National Planning Policy Framework (2012) says of enforcement: “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. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.”
  2. The Council has a Planning enforcement protocol, publicly available on its website. This sets out why enforcement is important and what might constitute a breach of planning control. Amongst other circumstances it includes “Failure to properly maintain land so that it affects the amenity of the area.”
  3. The Council’s protocol says: “Commencement of enforcement action will:
    • Always be commensurate with the breach of planning control to which it relates
    • Will not normally be taken to remedy trivial or technical breaches of control which are considered by the Council to cause no significant or detrimental harm.”
  4. “If an enforcement case is opened our aim is to resolve within eight weeks upon registration of a valid complaint.” “In all cases a report will be produced which explains the reasons for the proposed course of action. Please note if formal action is necessary, due to the complexities of planning law, it can take several months, and in complex cases years, to satisfactorily resolve problems.”
  5. The protocol says of untidy land or sites: “Untidy sites are rarely dangerous to public health but they will be an eyesore, which means it is detrimental to the local amenity.”
  6. “The council can serve an ‘amenity’ notice on the owner of any land or building which is in an unreasonably untidy condition and we consider has an adverse affect on the amenity of the area. This is done under section 215 of the Town and Country Planning Act 1990 (as amended).”
  7. Section 215 of the Town and Country Planning Act 1990 (as amended) provides a local planning authority (LPA) with the power, in certain circumstances, to take steps requiring land to be cleaned up when its condition adversely affects the amenity of the area. If it appears that the amenity of part of their area is being adversely affected by the condition of neighbouring land and buildings, they may serve a notice on the owner requiring that the situation be remedied. These notices set out the steps that need to be taken, and the time within which they must be carried out. LPAs also have powers under s219 to undertake the clean up works themselves and to recover the costs from the landowner.
  8. The use of s215 by LPAs is discretionary and it is therefore up to the LPA to decide whether a notice under these provisions would be appropriate in a particular case, taking into account all the local circumstances.
  9. The related Best Practice Guidance (2005) says: “Pre-notice discussion can be an invaluable tool in terms of yielding positive results and is to be encouraged. That said any discussions should not be allowed to result in undue delay in terms of yielding results. The timescale between complaint and compliance can appear protracted but generally most time is taken up in pre-notice discussion with landowners. The mutual benefit of communication between LPA and landowner cannot be overstated.”
  10. The Guidance also says: “Whilst negotiation is undeniably a valuable tool, it must be stressed that in order to produce prompt, tangible and good quality results, a hardline approach intolerant of delay should be adopted.”

Summary of events

  1. In August 2016 Mr X contacted the Council with concerns about an unsafe and unsightly site next to his land, where he was building new houses. The site was in an enclosed area surrounded by some other dilapidated buildings.
  2. The Council contacted the landowner, Mr L, who part-demolished the structure on the site, but left materials. Mr L said these belonged to a third party who rented the site.
  3. In November 2016 the Council wrote again to Mr L urging him to complete the clearance of the site, and wrote further in December, February and April 2017, seeking a collaborative resolution to the site issues.
  4. In April 2017 the Council advised Mr L that it would consider issuing a s215 Notice if he did not clear up the site as discussed.
  5. In May the Council issued a s330 Notice on Mr L, which sought information from him about his interest in the site and that of anyone else. Mr L provided a response which was incomplete; the Council sought further information from him, which he provided in mid-June 2017.
  6. The Council met with Mr L at the end of June 2017 and agreed that a suitable resolution to the site would be to re-clad the remaining frame and bring the structure up to an agreed standard.
  7. In July 2017 Mr X involved solicitors as he felt the Council was taking too long to resolve the site clearance and it had not responded to emails from him.
  8. Mr L started some reconstruction in September 2017. The Council monitored this work but was not satisfied by progress. In early October therefore it issued a s215 Notice on Mr L, which required work to be completed by early November.
  9. Mr L sent pictures of the works as at early January to the Council. The Council says it was satisfied the work had been completed to an acceptable standard, therefore considered the matter closed.
  10. Mr X made a formal complaint to the Council about these matters in November 2017. The Council provided a response in January 2018 but Mr X remained dissatisfied. The Council responded at Stage 2 of its complaints process in March 2018. Mr X then brought his concerns to the Ombudsman.

Analysis

  1. Planning enforcement action is a discretionary power. Once the Council has investigated an alleged breach of planning control, it has a range of options it may take. The National Planning Policy Framework (NPPF) is clear that action should be proportionate to the harm any breach may be causing.
  2. The Council’s enforcement protocol is clear that actions taken to regularise or remove planning breaches can take time to complete, although it will seek to do so within eight weeks.
  3. Action taken under s215 of the Town and Country Planning Act 1990 is again discretionary; councils may judge what steps to take based on the harm caused. Pre-notice negotiation is encouraged and there are no statutory timescales within which steps must be taken, but the statutory Guidance is clear that undue delay should not be allowed.
  4. The Council had to consider what the appropriate action might be, in the public interest, when weighing up whether to take formal action against a planning breach.
  5. In this case the site causing harm was enclosed by other buildings, many of which were also dilapidated at the time Mr X raised his concerns with the Council. Mr X was developing his site with new homes, which had planning permission from the Council and was supported as an improvement to a run-down area. Mr X raised concerns about the adjacent site some time after his development had started.
  6. The Council accepted the site caused harm in that the structure on it appeared dangerous. It therefore negotiated with Mr L to take it down, and then later to re-clad the framework he had left after removing the dangerous elements. The unsightly contents within the structure remained, but were not Mr L’s and belonged to a third party.
  7. Once the danger had been removed in September 2016, the outstanding enforcement efforts related to the unsightly aspect of the structure Mr X said was affecting the sale of his properties. That was not an issue in the wider public interest at that time given the location of the site and its surroundings, but the Council continued to seek a suitable outcome from Mr L because it was aware the site would probably be overlooked in future by other buildings to be re-developed, in part by Mr L himself.
  8. The Council in response to my enquiries said that there was a neighbour dispute between Mr X and Mr L that lay at the heart of the difficulties around the site. The evidence it provided indicated that Mr L felt Mr X was being obstructive over access to the site complained about; Mr X disputed this at the time in responses to the Council.
  9. The Council’s role in enforcement was not to provide conciliation or mediation between the parties, but it became in effect a go-between for Mr X and Mr L over access to the site for a short period in the spring of 2017, in an effort to resolve matters.
  10. From November 2016 the Council kept in regular contact with Mr L seeking a resolution to the unsightly site. This was a proportionate approach given the limited public harm of the site.
  11. Mr X then pushed the Council for action because he claimed a loss of sale on his properties. The Council’s actions remained at its discretion and it made efforts to get Mr L to complete the clearance of the site
  12. After a lack of suitable action by Mr L the Council started more formal action in June when it issued the s330 Notice to get information on the ownership of the site before issuing a s215 Notice for clearance of the site. The Council received an incomplete response and sought further information immediately from Mr L, who responded promptly.
  13. After a meeting in June 2017 between the Council and Mr L, he proposed to rebuild the structure rather than remove it completely, as he had interest in its use as a garage. The Council has no record of what was agreed at that meeting, but has provided Mr L’s subsequent correspondence which sets this out.
  14. In response to my enquiries the Council said it had ‘incomplete records’ for July to September 2017. From what is available I consider there was some avoidable delay as the Council cannot evidence it maintained contact with limited contact with Mr L as he explained he had been unwell. The relevant officer was then on leave in late August. Mr L and so monitored if he said he was complying with it’s the request to deal with the site by reconstructing the structure. The Council explained to Mr X’s solicitor that it had not communicated with Mr X because it wanted to provide a positive update and so was waiting to see some progress on the site.
  15. I have some concerns about the Council’s approach given Mr L’s lack of action thus far, however I accept there was some contact with him and that he said he was unwell.
  16. The Council was active on the case from September 2017 which led to it issuing the s215 notice. However, there is no evidence it followed that up in November when Mr L was required to complete the work. In December the Council asked Mr L if he had completed the work, but it took until January 2018 for him to send pictures of the completed structure to the Council. It then only has a record of ‘signing off’ the work as acceptable in a response to Mr X.
  17. The s215 Guidance says the Council should not let negotiations become protracted. In this case the Council sought a negotiated outcome, as it was entitled to do but I consider it allowed avoidable delay between July and September 2017, having initiated the formal process with a s330 Notice. It also and failed to check Mr L had completed the works after the issue of the s215 Notice itself, relying on him to provide the evidence some two months after the due date. I consider this was fault by the Council.
  18. However, I do not consider this fault caused Mr X the injustice he claims. If the Council had issued the s215 Notice sooner, I consider on balance it might only have resolved issues slightly earlier (as Mr L had shown he was not timely in his actions throughout the process) and this would not have altered the position on Mr X’s property sales earlier in 2017. In any event loss of sales would not be a planning consideration for the Council. Its enforcement action related to public harm and that was limited given the context of the site at that time.
  19. The Council has stated it has no or incomplete records for periods on this enforcement case. I consider that is fault. The records do not provide a clear basis for its decisions to agree to Mr L rebuilding the structure rather than clearing the site, do not provide evidence the Council monitored site between July and September 2017 once it started formal action, or the basis for the Council considering the structure to be acceptable in January 2018. That is fault.
  20. The Ombudsman expects to see a contemporaneous record showing how a Council considered any material planning matters (and any comments from the public) before reaching its decision about what action to take, or not to take. We may consider failure to do so as fault. The Ombudsman has recently issued guidance on the recording of such decisions: Recording Planning Decisions: Guidance for Planning Practitioners, September 2018.
  21. Mr X says he had to employ solicitors to secure a response from the Council to his ongoing concerns in July 2017; he seeks recovery of those costs.
  22. I do not consider Mr X was forced to use solicitors, rather it was his choice. The Council’s enforcement protocol is clear that enforcement actions are discretionary and can take a long time. I recognise Mr X was frustrated at the length of time the case had been ongoing and felt the Council was failing in its duties, however it was for the Council to decide what action to take and how proportionate that was to the harm caused to public amenity.
  23. The Council had had regular contact with Mr X through to June 2017. It then was engaged with Mr L in the s330 response and meeting with him about the site. Mr X says the Council did not communicate with him for three weeks, so he engaged solicitors as he felt that was unacceptable.
  24. I recognise Mr X felt frustrated at this time as he had lost sales on his properties, however the Council’s enforcement process was between it and Mr L. It had no duty to advise Mr X of each detailed step in that process. However, it is good practice to keep the complainant informed of key steps and it might have been appropriate to set out to Mr X what the Council agreed with Mr L about the reconstruction rather than a complete clearance of the site. However, I do not consider the lack of communication with Mr X at that point amounted to maladministration (fault).

Recommended Agreed action

  1. I recommend the Council apologises to Mr X for the undue delay in its enforcement actions between July and September 2017 and for the lack of update on its actions once it agreed with Mr L that he could reconstruct the structure on the site in July 2017, and for the delay in checking Mr L had complied with the S215 Notice in November 2017, and for the frustration this caused them him.
  2. The Council should complete this within one month of my final decision.
  3. I recommend the Council carries out a review of the way in which its planning Enforcement team maintains case records, giving due consideration to the Ombudsman’s recent Guidance ‘Recording Planning Decisions: Guidance for Planning Practitioners’, September 2018.
  4. The Council should provide evidence of its actions on this within three months of my final decision.
  5. The Council has explained in response to my draft decision it has taken steps to improve case management, to include weekly case management meetings, additional staff and member training, formalising processes and the use of an online form for enquiries to be submitted. Complainants are now required to supply contact details at the outset and are then updated at key decision points - this avoids the risk of delays arising from communication directly through named officers.
  6. Once it provides evidence of these actions within three months of my final decision, I will consider this element of my recommendations complete.

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Final decision

  1. I consider the Council acted without fault in its approach to enforcement against Mr L. However, it allowed undue delay between July and September 2017 which was fault and which caused it failed to check Mr L had completed the works after the issue of the s215 Notice itself, causing Mr and Mrs X unnecessary frustration.
  2. The Council did not retain adequate enforcement records on this case to evidence the basis for all its decisions. That was fault.
  3. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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