Summary: Mr X complained about the way the Council handled planning applications and planning enforcement for a business near his home. He also complained about delays handling his complaint. Mr X said the business remained at the location longer than it should have, causing noise, nuisance, and congestion. Largely we do not find the Council at fault. However, we find the Council at fault for delays sending a complaint response. We are satisfied the Council has already apologised for this.

The complaint

1. The complainant, who I refer to here as Mr X, complains about the way the Council handled enforcing an unauthorised business. He complains that the Council:
1. failed to deal with the planning applications correctly;
2. failed to enforce planning conditions;
3. failed to remove the business from the location despite a ruling by the Planning Inspector;
4. allowed the business to relocate very nearby; and,
5. failed to respond to his complaint in a timely manner.
2. Mr X says the business remaining at the location longer than it should have caused continued noise, nuisance, and congestion on the shared access. He says the congestion posed a danger to residents when coming into and out of the shared access. He says this caused inconvenience and distress.

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What I have investigated

3. I have investigated the parts of Mr X’s complaint to do with the Council’s planning and enforcement actions from 2020 onwards (parts a, c and d). I have also investigated the part of Mr X’s complaint about the Council’s complaint handling (part e). The final section of this statement contains my reason for not investigating part b of the complaint.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. 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)

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How I considered this complaint

9. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement.
10. I considered the relevant legislation, statutory guidance, and policies, set out below.

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What I found

What should have happened

Planning

11. The law says councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate otherwise. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
12. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
13. Planning law puts the use of land and buildings into categories. If a council decides there has been a material change in use at a property, and the owner/proprietor has not applied for planning permission to change the category, it can take enforcement action.
14. Government guidance explains how councils should use their powers. Enforcement action should only be taken if it would be a proportionate response. In reaching a decision, councils should consider what harm is caused to the public by the unlawful development. If a council decides it would approve an application for the development, further enforcement action is not likely to be in the public interest. Councils can ask applicants to regularise breaches by submitting a retrospective planning application.
15. If a council refuses a planning application, the applicant has the right to appeal to the Planning Inspector.
16. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:
• delay – usually over eight weeks – by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; and,
• a planning enforcement notice.

Complaint handling

17. The Council’s complaints procedure says it will send a stage one complaint response within 15 working days of receiving the complaint.
18. The procedure says a complainant can ask the Council to consider the complaint further at stages two and three. It says it will send the stage three response within 28 working days.

What happened

19. Mr X lives near Business A. In 2018, Business A applied retrospectively to the Council to change its use from one planning category to another. In 2019, the Council refused this planning application. The Council then issued Business A with an enforcement notice. Business A appealed the enforcement notice with the Planning Inspector.
20. In 2020, before the Planning Inspector decided the enforcement appeal, Business A submitted a second planning application.
21. The Planning Inspector dismissed Business A’s appeal about the enforcement notice.
22. In the autumn, Business A appealed to the Planning Inspector that the Council had not determined the second planning application. The Planning Inspector said Business A had not appealed in time, so the appeal was invalid.
23. Business A then submitted a third planning application. This proposed that Business A would move to a different location in the area.
24. In December, Mr X complained to the Council.
25. In early 2021, the Council’s planning committee approved Business A’s third planning application. Business A withdrew the second planning application.
26. Mr X complained to the Ombudsman. The Ombudsman referred his complaint back to the Council to complete its complaints procedure.
27. In March, the Council sent Mr X its stage two complaint response. It bypassed stage one because of the delay in responding to his complaint. The Council explained in detail what had happened, why there had been delays, and the reason it took certain actions. It apologised for the delay in responding to his complaint and explained it was due to staff absence because of illness.
28. Mr X asked the Council to escalate his complaint to stage three.
29. In May, the Council sent its stage three complaint response. It apologised for the delay, which it acknowledged was outside its normal timescale. The Council said it came to the same conclusion as its earlier complaint response.
30. In August, Business A moved to its new location.

Analysis

Planning applications

31. Mr X complains that the Council failed to deal with the planning applications correctly (part a of the complaint). He says the Planning Inspector confirmed that Business A had to leave the premises but Business A submitted a new planning application. He said the Council failed to deal with that properly. He said the Council lost control of the situation and did not know what was going on.
32. I do not agree. The circumstances in this case are complex. Business A was entitled to submit the planning applications. The Council had to deal with each planning application on its own merits. At the same time, Business A had two separate appeals with the Planning Inspector.
33. The Council says it had to wait for the outcome of each of the appeals before it could determine the planning applications. I agree. Once the Planning Inspector dismissed Business A’s second appeal, the Council did not delay in determining the third planning application. Business A withdrew the second planning application once the Council had approved the third planning application.
34. I find no fault with how the Council determined Business A’s planning applications.
35. Mr X says the Council failed to deal with the planning applications quickly. He says the Council accepted this in its complaint response.
36. In its complaint response, the Council recognised it had taken time to decide Business A’s planning applications. However, it explained the reasons for this. I do not find evidence of fault here.
37. Mr X says the Council should have been quicker to shut down Business A’s planning applications.
38. I do not agree. Councils have to decide planning applications on their own individual merits. In this case, the Council had to wait for the outcome of two Planning Inspector appeals before it could continue determining Business A’s planning applications. The Council is entitled to do this. For this reason, I do not find the Council at fault.

Failed to remove the business from its location

39. Mr X complains that the Council failed to remove the business from the location despite a ruling by the Planning Inspector (part c of the complaint). He says the Planning Inspector gave Business A until September 2020 to vacate the premises but the Council did not remove Business A from that premises until August 2021.
40. I agree that in March 2020 the Planning Inspector told Business A to vacate the premises by September 2020. However, in September Business A appealed the Council’s non-determination of the second planning application. In October, Business A submitted a third planning application. This proposed that Business A move to a different location. The Council approved this in February 2021 and told Business A to vacate the premises by August. Business A did leave the premises by this date.
41. The Council recognised that Business A had not vacated the premises by September 2020 as instructed by the Planning Inspector. This meant that the period for Business A to comply with the enforcement notice had lapsed. So, Business A was liable for prosecution.
42. The Council decided to negotiate with Business A, rather than prosecute Business A immediately. The Council decided to put a hold on any possible prosecution to allow Business A to submit the third planning application. This third planning application ended up resolving the issue to the Councill’s satisfaction.
43. As I have said above, enforcement powers are discretionary. This means that the Council is entitled to take enforcement action as it sees fit. In this case, the Council took enforcement action in the first instance by issuing Business A with an enforcement notice. When Business A failed to comply, the Council chose to negotiate with Business A. It is entitled to do this.
44. For these reasons, I do not find the Council at fault.

Allowing the business to relocate nearby

45. Mr X complains that the Council allowed the business to relocate very nearby (part d of the complaint).
46. I asked Mr X about Business A moving to the new location. Mr X said it was much better for him and said, “I hardly know he’s there”. I cannot see any injustice to Mr X caused by the Council’s decision to approve the third planning application, allowing Business A to relocate. Mr X wanted Business A to move, which it did.

Complaint handling

47. Mr X complains that the Council failed to respond to his complaint in a timely manner (part e of the complaint).
48. The Council acknowledges it did not send Mr X a stage one complaint response within the 15 days set out in its complaints procedure (see above). The Council sent its response eight weeks late. This is fault. The Council recognised this in its stage two complaint response and apologised. I am satisfied that this apology remedies the injustice caused to Mr X by this delay.
49. The Council acknowledged in its stage three complaint response that it did not send it within the 28 working days set out in its procedure. It apologised for this. I find that the Council sent the stage three response ten working days late. I do not consider a delay of ten working days to be significant enough to constitute fault.

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Final decision

50. I have completed my investigation and largely I do not find the Council at fault. However, I find the Council at fault for a delay in sending a complaint response. I am satisfied that the Council’s apology remedies the injustice caused.

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Part of the complaint that I did not investigate

Enforcing planning conditions

51. Mr X complains that the Council failed to enforce planning conditions (part b of the complaint). He says there were 15 planning conditions imposed on Business A’s site in 2006 when the use changed. He says Business A failed to comply with these. Mr X says he has complained to the Council about this “a lot” since 2018.
52. As I have said above, 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.
53. Mr X brought his complaint to the Ombudsman in March 2021. I asked Mr X why he did not bring this part of his complaint to the Ombudsman earlier. He says the Council is “clever” and has procrastinated. He says the Council delayed dealing with his complaint, and he complained to the Ombudsman when he received a final response letter which signposted him to the Ombudsman.
54. Mr X complained to the Ombudsman in March 2021. The Council signposted Mr X to the Ombudsman in May 2021. Therefore, I do not accept that Mr X complained after the Council signposted him to the Ombudsman.
55. I do not find any good reason to exercise the Ombudsman’s discretion and investigate the Council’s enforcement of planning conditions back to 2018 when Mr X says he first complained to the Council.
56. Overall, I consider that reasonable opportunities existed for Mr X to have pursued this matter in a more timely fashion, and within the time limits laid down in law. As such, I have decided there are no good reasons to exercise the Ombudsman’s discretion to investigate this part of Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman