Summary: Mr X complained about the Council’s handling of a planning condition, including both its enforcement and an application seeking a certificate that it was immune from enforcement action. We ended our investigation as the complaint about enforcement of the condition was a late complaint. And the Council’s apology to Mr X, with its recent statement advising it should soon determine the application, meant further investigation would not achieve a more meaningful outcome for Mr X.

The complaint

1. Mr X complained about the Council’s handling of a planning condition (‘the Condition’) restricting the hours for vehicle movements linked to a development because:

• for over 10 years, it failed to adequately investigate complaints and enforce against breaches of the Condition;
• it failed to consult residents on the developer’s application for a lawful development certificate (‘the Application’) seeking to show breach of the Condition was immune from enforcement action;
• it failed to publish information about the procedure for deciding applications for lawful development certificates;
• it withheld information about the Application;
• it failed to reject the Application although it contained inaccurate information and was received when the Council was investigating a reported breach of the Condition; and
• after 11 months, it had failed to determine the Application.

2. Mr X said lorries passed his home every day from 5am causing significant noise, vibration, nuisance and damaging local roads. Mr X said he had lost confidence in the Councils ability to deal with matters, which added to his distress and frustration.
3. Mr X wanted the Council to refuse the Application, enforce the planning condition, and reduce the nuisance and damage caused by lorries. Mr X also wanted the Council to review its procedures to ensure it properly enforced planning conditions and responded to residents’ complaints about breaches of planning control.

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What I have and have not investigated

4. Mr X’s complaint covered both planning enforcement and the Application. On planning enforcement, Mr X said the Council had failed to act against breaches of the Condition dating back to 2012. Mr X also complained about the Council’s failure to complete its investigation into a breach of the Condition reported in 2020.
5. The Council told Mr X, aside from the open 2020 enforcement investigation, it had received one other report of a breach of the Condition in 2012. The Council said it closed the 2012 case in 2013 and had not received any further report of a breach until 2020. The 2020 enforcement case remained open. But, having received the Application, it now had to be determined before it could continue with the enforcement investigation and take any formal enforcement action.
6. A complaint about the Council’s handling of the Condition back to 2012 would be a late complaint (see paragraph 11). I saw no good reason now to investigate the Council’s acts and or omissions back to 2012. A complaint about the Council’s handling of the 2020 enforcement investigation would also be a late complaint. But, that investigation is continuing and so I could exercise discretion to consider the Council’s actions.
7. However, Mr X did not report the breach of the Condition that led the Council to open the 2020 enforcement investigation. So, if the Council was at fault in dealing with the enforcement investigation, any such fault would not have caused Mr X direct personal injustice (see paragraphs 9 and 10). Rather, if there was fault, any resulting injustice would be to the person/s reporting that breach. I also found the Council’s position, that it now needed to determine the Application before continuing with the enforcement investigation, had merit and was sustainable on planning grounds. I therefore saw no good reason now to investigate that part of Mr X’s complaint about the Council’s enforcement of the Condition.
8. The focus of my investigation was on the Council’s handling of the Application.

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The Ombudsman’s role and powers

9. 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 the decision making, we cannot question the outcome. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1), 26A(1), and 34(3), as amended)
10. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide, for example:

• any fault has not caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

11. 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)
12. 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)

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How I considered this complaint

13. I:

• considered Mr X’s complaint and supporting papers;
• talked to Mr X about the complaint;
• considered planning information about the development available on the Council’s website;
• considered the complaint correspondence between Mr X and the Council; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

Planning enforcement

14. Carrying out development without either the necessary planning permission or complying with conditions on a permission is a breach of planning control. Councils should investigate reported breaches of planning control. But 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. Government guidance encourages councils to resolve issues through negotiation with developers.
15. Planning enforcement action is subject to statutory time limits. For example, a council may not act against a breach of a planning condition after 10 years from the date of the breach.

Lawful development certificates (LDCs)

16. People may apply to councils for formal confirmation that existing development is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant. This may happen, for example, where development breached planning control, but the time limit for enforcement action has now passed.
17. Councils do not need to publicise applications for a certificate of lawful use. However, they may seek information from others but comments about the planning merits of the application are not relevant to decision making. Councils must also give the applicant an opportunity to respond to any information provided by others that affects the application. Councils must consider the law and facts of the case and decide, on balance of probability, whether the development is lawful and so issue a certificate. Councils should decide applications within eight weeks or agree an extension of time with the applicant.
18. Applicants may appeal to the independent Planning Inspectorate against a council’s refusal to grant a certificate. Applicants may also appeal after eight weeks if they do not agree an extension of time with the council.

What happened

19. The Council granted planning permission for development near Mr X’s home that included the Condition. About a year later, the Council opened, and later, closed without taking formal action, an enforcement investigation into a reported breach of the Condition. Mr X said he and other residents continued to regularly complain and report breaches of the Condition. The Council said it had no record of further reported breaches until 2020, which was about nine years after it granted the planning permission. The Council then had a vacancy for a specialist planning enforcement officer and so, while it opened an enforcement case, it did not start its investigation until late 2020.
20. In 2021 the Council received the Application and later notified relevant Parish Councils. Mr X, and other residents, then became aware of the Application and sent their objections to the Council. The Council sent residents a standard reply confirming receipt of their objections. The standard reply said objections would be taken into account in deciding the Application.
21. Eight weeks passed without the Council deciding the Application. Mr X contacted the Council asking questions about its enforcement generally of planning conditions and specifically of the Condition. Mr X also knew his local Parish Council had complained to the Council about enforcing the Condition and its handling of the Application. About six months after the Council had received the Application, Mr X also complained to the Council.
22. In summary, Mr X said the Council had failed to enforce the Condition since 2012 and was failing to properly handle the Application. Mr X’s concerns about the Council’s handling of the Application included its failure to actively consult with residents or properly consider their objections. Mr X said the Council had withheld information supporting the Application and failed to update its website to show progress in deciding the Application. Mr X also said the Council should have rejected the Application both because of its open enforcement investigation and inconsistencies in the information supporting the Application.
23. In response, and in summary, the Council said planning enforcement was largely reactive and relied on people reporting possible breaches. The Council also said there was no requirement to publicise LDC applications although it did tell the relevant Town/Parish Council. The Council explained some Application information was too large to upload to the planning case file and contained personal details it could not publish. The Council accepted it had taken time, but it had now published that information on its website, separate from the planning case, without third party details. The Council said the scale of information provided had affected the time needed to determine the Application and so update the website. The Council also explained limited legal grounds, which did not apply to the Application, existed for refusing to determine a valid application.

Consideration

Contact with residents

24. I recognised Mr X’s concern about the Council not publicising the Application. However, as the Council had said, the law did not require publicity for LDC applications. I could not therefore find the Council at fault for not publicising the Application. And, despite the lack of publicity, the number of objections on the Council’s website indicated residents’ awareness of the Application.
25. Mr X also questioned the lack of information about the LDC process or updates about the Application on the Council’s website. While I recognised Mr X’s concerns, LDC decision making is based on the relevant law and facts of each case. The Council, like most local planning authorities, therefore delegated LDC decision making to its professional planning officers. In the circumstances I did not find the Council at fault for not providing information about the LDC decision making process. As the Application remained under consideration, the Council had no reason, as of early January 2023, to update its website, which showed the Application as ‘registered’. I therefore found no fault on these points.
26. Mr X also said the Council withheld some information provided by the developer in support of the Application. The Council accepted this explaining the information exceeded the size limits on its website for planning applications. However, the information was now available on the Council’s website, although separate from all other information about the Application. The information, as now published, was significant and I had no reason to doubt that, in its original form, included the personal details of third parties. The Council needed to remove the personal details and find a way to upload the information to its website. This did take time. However, in the circumstances, I did not find fault here. And the website planning case file showed some residents had now considered the information and sent their comments to the Council. So, if I were to find fault, I would not find the time taken to make the information available caused Mr X, or other residents, significant injustice.

The failure to reject the Application

27. Mr X wanted the Council to reject the Application because, on receipt, it had an open enforcement investigation into a breach of the Condition. Mr X also pointed to inconsistencies in the evidence. However, the Council, having found the Application was properly made, had no legal grounds to refuse to determine it despite its open enforcement investigation. The Council then needed to consider all the relevant evidence, assessing any inconsistencies, and determine whether, on balance of probabilities, to approve or refuse the Application. I therefore did not find the Council at fault for not refusing to determine the Application on its receipt.

Decision making time

The Council should decide LDC applications within eight weeks. Here, the Council has had the Application for many months and could not, in responding to Mr X, suggest when it might reach a decision. I recognised Mr X’s likely frustration and distress at both the time taken, to date, to determine the Application and the Council’s inability to say when it might do so. However, it is the applicant seeking the LDC that can remove the decision making from the Council by appealing after eight weeks. Alternatively, as with the Application, the applicant may give the Council more time to make a decision.

28. However, if there has been avoidable delay by the Council in dealing with the Application, that would be fault. An appropriate and proportionate way to address Mr X’s frustration arising from any avoidable delay, would be an apology and an estimated timescale for the Council’s decision. The Council, in its first response to Mr X’s complaint, apologised for the frustration and distress the situation caused to residents. And, becoming aware of Mr X’s complaint to the Ombudsman, the Council indicated it now had considered all the evidence it held about the Application. The Council said this had included analysing about a million records linked to lorry movements. The Council also said it was seeking external advice on some issues. And it expected to report on and determine the Application once it received that advice. The Council should, therefore, soon determine the Application. And, subject to any appeal by the developer, it is for the Council to determine the Application, not the Ombudsman. We are not any appeal body and cannot order councils to make any specific decision. In the circumstances, further investigation to establish if there had been avoidable delay would not likely achieve any different or improved outcome for Mr X (see paragraph 10).
29. Once the Council decides the Application, if Mr X considers that decision was not properly made, he may complain to the Council. And, if Mr X is dissatisfied with the Council’s response to that complaint, he may come back to the Ombudsman.

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Final decision

30. The Council had recognised and apologised to Mr X for the time it had needed to consider the Application. And it was now acting to conclude its consideration and reach a decision. I could not achieve a more meaningful outcome for Mr X, even if further investigation evidenced avoidable delay by the Council. So, I ended my investigation and did not uphold Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman