Summary: Mrs X complained the Council delayed taking enforcement action against her neighbour. The Council was at fault for its delayed investigation of the alleged breach. The Council has agreed to apologise to Mrs X and pay her £100 for the uncertainty she experienced.

The complaint

1. Mrs X complained the Council did not take enforcement action against her neighbours when they allegedly breached planning control. She said the neighbours’ use of their converted garage as a short term rental has caused her family an injustice. She said the noise, inconsiderate parking and general disruption has caused inconvenience and significant stress.

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The Ombudsman’s role and powers

2. 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 an organisation’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)
3. 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

4. I have considered Mrs X’s complaint and have spoken to her about it.
5. I have also considered the Council’s response to Mrs X and to my enquiries.
6. Mrs 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

Legislation

Planning enforcement

7. 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.
8. 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 and dialogue with developers.
9. 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 July 2021, paragraph 59)

Material change of use

10. The Town and Country planning Act 1990 (as amended), the National planning policy framework (paragraph 59) and case law are relevant when considering a “material” change of use of a possible planning unit. Development is defined in Section 55 of the Town and Country Planning Act 1990 as the carrying out of building, engineering, mining or other operation's in, on, over or under land; or the making of any material change in the use of any buildings or other land.

What happened

11. In October 2019, Mrs X reported to the Council that her neighbour was breaching planning control by operating a bed and breakfast business from her converted garage. The Council acknowledged Mrs X’s report.
12. In May 2021, Mrs X contacted the Council for an update on the case. The Council sent Mrs X log sheets to record the alleged use of the property. Mrs X completed and returned these within a month.
13. In August, Mrs X complained to the Council about the delay in enforcement action. The Council responded and said it was progressing the case as quickly as possible but it must prioritise urgent cases.
14. In September, Mrs X escalated the complaint. In November, the Council contacted the neighbour to arrange a site visit.
15. On 29 November 2021, the Council served a Planning Contravention Notice (PCN) on Mrs X’s neighbour. The PCN included detailed questions for Mrs X’s neighbour to complete about the use of the garage conversion.
16. Mrs X’s neighbour returned the completed form in December 2021.
17. In January 2022, the Council considered the case at a Planning Enforcement Forum. The forum concluded the Council could not confirm there had been a material change of use and therefore intended to close the enforcement case.
18. In February, the Council wrote to Mrs X to confirm the findings. Mrs X was dissatisfied with the Council’s conclusions and continued to collect evidence to demonstrate there had been a change of use.

My findings

19. The delay in the Council’s enforcement investigation is fault. It took two years from Mrs X reporting the alleged breach to the Council contacting the neighbour. The Council said the Covid lockdown, officer caseloads and other higher priority cases contributed to the delay.
20. In its stage 2 response the Council said it was looking at introducing performance management procedures to ensure workloads are properly managed to avoid delays like Mrs X experienced.
21. In response to my enquiries, the Council confirmed it had introduced quarterly case load reviews for the entire enforcement team and it had approved budget bid for additional staff to provide extra capacity to the team.
22. Between November 2021 and February 2022, the Council moved efficiently. It issued a PCN, considered the neighbour’s response, reached a decision on the enforcement case and informed Mrs X.
23. Although Mrs X disagrees with the Council’s conclusions, I have found no fault with how the Council reached its decision. I cannot question the Council’s decision if it was reached in the correct way.
24. In conclusion, I have found fault with the Council for delaying its investigation into Mrs X’s initial report of a breach. This delay caused Mrs X uncertainty and frustration. However, even if the Council had investigated the alleged breach sooner, its decision would have been the same. Therefore, I consider the delay only caused Mrs X a limited injustice.

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Agreed action

25. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for the delay in investigating her report of an alleged planning breach.
2. Pay Mrs X £100 for the uncertainty she experienced during the two years’ waiting for the Council to respond.

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Final decision

26. I have completed my investigation. The Council was at fault for taking two years to investigate Mrs X’s report of a planning breach. This caused her uncertainty and frustration.

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Investigator's decision on behalf of the Ombudsman