Summary: Mr X complained about a partially built residential development on land next to his home, which has been left by a developer for several years. He said the Council failed to take adequate enforcement action and failed to properly consider its available powers. We found procedural and case handling faults when the Council took formal enforcement action. However, this did not cause Mr X significant injustice. The Council did secure an improvement in the condition of the land, and there was no fault in the Council’s decision to withdraw court proceedings and stop formal action.

The complaint

1. Mr X complained about a partially built residential development on land next to his home, which has been left by a developer for several years. He said the Council failed to take adequate enforcement action and failed to properly consider its available powers.
2. Mr X said the site is derelict, untidy, and insecure. As well as causing visual harm for residents and visitors, the site attracts rodents and has affected the value and saleability of Mr X’s home.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any 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)
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(i), as amended)

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How I considered this complaint

5. As part of the investigation, I considered the complaint and the information Mr X provided.
6. I made written enquiries of the Council and considered its response along with relevant law and guidance.
7. Mr X and the Council had 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

Planning enforcement

8. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
9. 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.
10. 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.
11. 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 September 2023, paragraph 59)

What happened

12. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
13. The development site is a former home which was demolished. The Council granted planning permission several years ago for two new homes to be built in its place. The site owner (the owner) started building work but did not finish, leaving materials and equipment on site.
14. The Council first received complaints about untidiness and abandoned materials at the site in 2016. It visited the site and wrote to the owner, giving them 14 days to remove overgrown vegetation and building materials.
15. Despite the Council’s letter, the owner did not clear the site. An enforcement officer sought agreement from the Council’s legal services to issue an enforcement notice in November 2016. However, the Council did not serve an enforcement notice at that time.
16. Complaints about the site continued, and the Council wrote to the owner again in January 2018, urging them to carry on building work. It said the condition of the site remains unacceptable and is negatively impacting amenity for residents and the street scene. It also said the owner had a duty to maintain the site to a reasonable level of visual amenity, and asked them to tidy it.
17. The Council served an enforcement notice on the owner in August 2020. The notice required the owner to:
• Remove all unused building materials (pallets, bricks and timber).
• Remove all stockpiles of loose materials, sand and gravel.
• Remove the portable metal storage container.
• Tidy the land including the removal of all loose wood, metal, and plastic.
• Erect a secure boundary fence.
• Maintain the land and the boundary fence in a secure and tidy condition thereafter.
18. The Council gave the owner until October 2020 to complete the work.
19. The site owner wrote to the Council in response to the enforcement notice, explaining why work had stopped, and why they needed the materials on site.
20. The owner did not tidy the site or appeal the enforcement notice, so the Council started legal proceedings. The Courts listed a trial for December 2021.
21. The site owner emailed the Council in November 2021, stating they were using some of the materials on site and explaining why they could not remove others.
22. An enforcement officer visited the site to assess its condition. The officer told the owner to remove a welfare unit, reduce the height of the stacks of bricks and blocks, move pallets and a cement mixer, and apply a mesh to the fencing to obscure the view into the site.
23. The officer then visited the site again to check the owner had complied. The officer recorded the owner had completed the suggested improvements.
24. Council officers then discussed the case and decided to withdraw the prosecution. That was due to the owner’s cooperation, improvements made, and a commitment to start building works again. They considered a court hearing may bring only minimal punishment or further improvements in these circumstances. Officers also noted shortcomings in the Council’s prosecution case. The Council had no record of any discussions with the owner before serving the enforcement notice, and no record of issuing first and final warning letters before commencing formal action. There was also a lack of photographic evidence taken at the time the Council served the enforcement notice. An officer working on the case suggested the Council should have a procedure note on each case file going forwards, ensure officers follow the correct steps and attach all evidence to the file.
25. Mr X complained on 24 January 2023. He said no work had taken place on site for 11 months and the works the Council requested did not achieve an acceptable site. He said the Council failed to protect his and neighbour’s amenity, the Council did not use its powers under section 215 of the Town and Country Planning Act 1990 (TCPA), and the Council also had the power to ensure completion of the development.
26. The Council sent its stage one complaint response on 9 February 2023. It said:
• An enforcement officer recently attended the site. It does not warrant action by the Council under section 215 of the TCPA. The action taken by the owner to remedy the visual appearance was satisfactory and this continues to be the case.
• Although development started in 2010, the Council does not have the authority to force someone to complete a project, only to make sure the land is kept tidy. The recent site visit shows the site is tidy, organised, and protected from view of the public.
• In line with its enforcement policy, negotiation is always the first and continued course of action. The works completed showed the owner wanted to work with the Council and were deemed adequate to withdraw the enforcement notice.
27. Mr X remained dissatisfied. He referred to his work with the Council’s land disposal working group and the procedure it developed in 2011 to deal with untidy land. He said the Council previously used compulsory purchase orders (CPO) to resolve amenity issues where owners did not improve a site. He said the Council was risk averse and reluctant to take formal enforcement action.
28. The Council sent its final complaint response on 3 July 2023. It accepted it approved a procedure for dealing with untidy land in 2011. But it said this was not a formal policy and there have been changes in the planning service since 2011, including a new planning local enforcement plan introduced in 2021. This is the basis for how the Council deals with planning enforcement matters. The principle remains the same, the Council will assess whether the issue is causing a detrimental effect on the amenity of the area and, if so, whether it is at a level warranting formal action.
29. The Council acknowledged the site owner did not fully complete actions from the enforcement notice, but it considered sufficient work was undertaken to improve the site to a condition that meant prosecution was no longer warranted.
30. The Council accepted there are building materials on site, but considered they are stored in a reasonable manner, and the condition of the site is not adversely affecting the amenity of the wider surrounding area at a level justifying formal action.
31. The Council said the use of section 215 powers is discretionary, based on planning officer’s professional judgement about whether a site is having a significant adverse effect on the amenity of an area.
32. The Council acknowledged it had the power to serve a completion notice, but it did not consider it was appropriate in this case. Nor did it consider a CPO was appropriate either.
33. The Council said it would monitor the site going forward and would reassess the situation if it significantly deteriorates.

My investigation

34. Mr X told me the Council failed to act in a fair and consistent manner about use of its available enforcement powers, and failed to act in line with its untidy land and building protocol of 2011. He said the Council has sought to defend its position rather than consider what further enforcement action it could take.
35. Mr X said no work has taken place at the site the last few years, and the site is not secure. The boundary fencing has collapsed in places and site also attracts rats.
36. Mr X sent me photographs of the site, taken in June 2024. They show building materials on site which are clearly visible from the public footpath. Some bricks and scaffolding poles are stacked, other materials have been rested against the bricks or boundary walls. There is overgrown vegetation to the front and rear. Some of the vegetation is growing around and above building materials, making the site look abandoned. The vegetation at the front encroaches onto the public footpath, although not obstructing it. There is also damaged fencing bordering Mr X’s land.
37. The Council told me it made a professional judgement that it was not expedient to continue with enforcement action after the developer agreed to tidy the land.
38. The Council said it visited the site following Mr X’s stage two complaint. It accepts there were building materials present, but considered they were stored in a reasonable manner, and the condition of the site was not adversely affecting the amenity of the wider surrounding area at a level warranting formal action. The Council considers this remains the case. However, it will monitor the site and if it significantly deteriorates then it will reassess the situation.
39. The Council’s last site visit was on 26 April 2024. An officer reported the site remains relatively tidy and clean, with construction materials stacked generally tidily and only small amounts of litter and weeds present.
40. The Council said it does not have the authority to force someone to complete a development once started. And it does not consider using powers under section 95 of the TCPA is appropriate in this case.
41. The only mention of vermin the Council had a record of was from 2009. However, it said there was no problem with rats, Mr X had concerns about a vacant property, which the Council referred to its planning department.

Analysis

42. I found the Council responded correctly to complaints about the condition of the site. Officers visited to assess the condition and the Council sent letters to the owner, asking them to tidy it. When this did not happen, the Council sought agreement from its legal department to serve a formal enforcement notice. It then started court proceedings when the owner still failed to tidy the site.
43. However, officers highlighted the Council did not follow correct procedure on communicating with the owner and did not collate all relevant evidence. That was fault.
44. On the evidence seen, the owner did cooperate and try to work with the Council, at times, and to an extent.
45. I found the owner wrote to the Council a number of times earlier in the process, and spoke to officers to explain the condition of the site and the reasons why building work stopped. I cannot confirm specific details of what the owner said, as this is confidential third-party information I do not have permission to share.
46. Enforcement action is discretionary and, even though the Council had started court proceedings, we would expect it to keep matters under review. Government guidance is clear that councils should not take enforcement action just because a breach has occurred. It is about the level of harm caused.
47. The Council provided me with photographs taken in 2016, and further ones taken November 2021 after the owner took some steps to tidy the site. The pictures show the site looking tidier in November 2021. There were no longer piles of rubble or waste material. Bricks and blocks were stacked neatly, and other materials were rested against boundary walls. There was no overgrown vegetation, and a mesh attached to the fencing obscured view of the site for passers-by.
48. The Council therefore considered the harm was no longer significant enough to continue with formal action. That decision is one for the professional judgement of qualified officers. It is not a decision for the Ombudsman. Our role is to consider whether there was administrative fault in the decision.
49. The Council made the decision to withdraw court proceedings based on the actions of the owner to tidy the site, and because of concerns about its own case handling. The decision was made after a site visit, review of the case file, and discussions between officers. I therefore did not find evidence of fault in the Council’s decision. While there was fault in the Council’s procedure before serving the enforcement notice, and in its case handling for court proceedings, this was not the main or sole reason the Council withdrew. The Council’s main focus was the condition of the site. The fault did not therefore cause Mr X significant injustice.
50. Mr X complained the site is an eyesore, and was not properly cleared by the owner. Having seen Mr X’s recent photographs of the site, I can appreciate his concerns. However, whether the site is in a condition requiring formal enforcement action remains a matter of professional judgment for Council officers. The Council has assessed the site since Mr X’s complaint but remains of the view the harm is not significant enough to take further action.
51. Mr X did not feel the Council properly considered all its available powers to improve the condition of the site. Mr X is correct the Council also has the power to serve a completion notice or CPO. He raised this in his formal complaint, but the Council did not consider it was appropriate to use those powers. Again, those decisions are for the Council. While we can criticise a council where we find it failed to consider its available powers, we cannot tell a council when it should use those powers. The crux of the matter here is a difference of opinion about the present condition of the site. Mr X considers the site continues to cause significant harm to neighbouring amenity and to the street scene. The Council on the other hand disagrees. It no longer considers the site causes significant harm from a planning enforcement viewpoint. That is not to say the site causes no harm at all, but the Council considers the harm is no longer at a level which would justify further enforcement action or further use of its available powers.
52. Mr X also criticised the Council for not following a 2011 procedure for clearing untidy land. The Council acknowledged this procedure, but explained it had a new planning policy which covered enforcement where land is untidy. The 2011 procedure has effectively been superseded by the new policy. The Council was therefore not at fault for following the new policy instead.
53. Mr X reported the condition of the site attracts rats, and he provided me with some video evidence of a rat on his premises. If the issue with rats is an ongoing problem, Mr X should ask the Council’s environmental health service to investigate and determine the cause.

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Agreed action

54. Within four weeks of my final decision, the Council should confirm it has the suggested procedural note in place for enforcement case files going forward, ensuring officers follow the correct steps and collate relevant evidence.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. Subject to further comments by Mr X and the Council, I intend to complete my investigation. At this stage, I found there were procedural and case handling faults when the Council took formal enforcement action. However, this did not cause Mr X significant injustice. The Council did secure an improvement in the condition of the land, and there was no fault in the Council’s decision to withdraw court proceedings and stop formal action.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman