Summary: Mrs X complained the Council failed to take planning enforcement proceedings regarding a housing development near her home or communicate properly with her. We do not find fault with how the Council considered its discretionary enforcement powers. We have found fault with the Council for its failure to tell Mrs X the outcome of its enforcement investigation. We considered this did not cause Mrs X a significant injustice. We also find fault with the Council for delay when responding to Mrs X’s complaints. This caused Mrs X frustration, however, the Council has remedied the injustice caused.

The complaint

1. Mrs X complains the Council failed to:
• take enforcement proceedings about breaches of planning control.
• give pre-planning information before she purchased her home.
• consider her objections to planning permission in 2018.
• consider her objections to advertising flag poles and the change of use to an onsite cabin.
• adequately respond to her complaints.
2. Mrs X says this has caused her confusion, frustration, and distress. She would like the Council to recognise its faults and make a compulsory purchase of her home.

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What I have investigated

3. I have investigated issues arising after August 2020 having exercised my discretion to consider events close to December 2020 which is 12 months before Mrs X complained to us.

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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 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)
6. 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:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement,

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

7. 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)
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 provided by Mrs X and the Council. I also considered the law and guidance set out below. Both parties had the opportunity to comment on the draft statement. I have considered the comments received before issuing this final decision statement.

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What I found

The Law and Government Guidance

10. Section 171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined as:
• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
11. Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by:
• long working hours on construction sites.
• nuisance from noise, dust, smoke, and vibration; and
• traffic from construction vehicles.
12. While construction management conditions may help lessen the harmful impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
13. 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.
14. 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.
15. 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)
16. Councils have a range of options for formal planning enforcement action available to them. However, 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.

Enforcement notice

17. This may be issued where it appears to the planning authority that there has been a breach of planning control and it is expedient to take formal action. It is an offence not to comply with an enforcement notice. The notice carries a right of appeal.

Stop notice

18. A stop notice can prohibit any or all of the activities of the alleged breaches of planning control set out in the enforcement notice.

The Council’s Development Management Policies Document

19. The Council will take enforcement action as a last resort but only if a breach of planning control is causing unacceptable harm or nuisance. Enforcement action will not be delayed by protracted negotiations.
20. The Council’s policy is to investigate all complaints and undertake site visits to establish the facts. The site visit will normally take place within 5 days of receiving the complaint. All cases that result in an investigation or site visit will be recorded and a unique reference assigned.

Planning Enforcement Plan

21. The Council says it recognizes the importance of keeping individuals up to date with progress. It says it will provide a written acknowledgement within five working days. It will undertake site visits and it will tell complainants at each key stage of the process. The Council will tell the complainant of the final result.

The Council’s complaints procedure

22. Under this two-stage procedure the Council commits to responding to complaints within 15 working days at both stages.

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What happened

23. The Council granted planning permission in 2018 for a housing development to be built on fields near to Mrs X’s home, which she bought in 2017.
24. Mrs X contacted the Council on four occasions to report breaches of planning control. The Council allocated a unique reference number to each of her complaints.
25. In August 2020, Mrs X complained to the Council that lorries were arriving on site before the permitted operating hours.
26. In response the Council contacted the developer and liaised with local councillors about the issue. It issued an enforcement notice followed by a temporary stop notice in October 2020. This prohibited lorries entering the site outside the times allowed. Following the notice and liaison with the developer, the Council was satisfied future breaches would not occur.
27. In December 2020 the Council had received an application to allow the developer to set up temporary flagpoles and hoardings to advertise the development. Mrs X objected to the application in March 2021.
28. Mrs X made a similar complaint about lorries arriving onsite in March 2021. The Council reviewed the complaint and found no evidence of a breach of planning control.
29. A few days later Mrs X raised concerns about the impact on her privacy from houses being built directly behind her home.
30. The Council said it responded on the same day and told Mrs X it had scheduled a site visit to ensure the developer was complying with conditions. The Council closed the case saying ‘no breach’ due to the development being unfinished.
31. At the end of April 2021, Mrs X complained the developer had widened an access way closing a footpath. The Council reviewed the case and directed her to the county council as the responsible highways authority.
32. Mrs X complained about the Council’s handling of the planning application and enforcement using its formal complaints procedure in August 2021. She said the Council had:
• Failed to inform her of a pre-planning application before she purchased her house.
• Failed to consider objections to the planning application in 2018.
• Not communicated properly with residents.
• Failed to consult residents or check their views about planning applications received in December 2020 for hoardings and flag poles and a planning application for the site office in April 2021.
33. Having failed to receive a response to her complaint Mrs X complained to the Ombudsman in December 2021.
34. The Council responded to Mrs X’s complaint in May 2022. It recognised there had been delay in responding to her concerns. In view of this, the Council moved the complaint to Stage Two of its process. It addressed Mrs X’s concerns and did not uphold her complaint but apologised for the delay in its response.
35. The Council responded to my enquiries in September 2022. It said:
• It had considered Mrs X’s objections to the Council’s application for the installation of temporary flagpoles on the site and granted permission in July 2022.
• It had not yet decided on the application for permission for a temporary site office.
• It had considered its enforcement powers in response to Mrs X’s concerns.

Analysis

36. Councils have no duty to proactively check whether developers have complied with all the conditions of planning permission. However, where a council receives complaints of potential breaches of planning control it has a duty to investigate. We cannot investigate the actions of the developer only the response of the Council to Mrs X’s complaints. Councils have the power to enforce but they have no duty to do so. If a council decides enforcement action is appropriate, it should follow government guidance. This says any action it takes should be proportionate to the breach of control to which it relates.
37. Mrs X raised four potential breaches of planning control and in each case the Council opened an investigation and issued a unique reference number. The Council considered the issues raised and it decided to enforce the August 2020 breach by issuing a temporary stop notice. However, when considering Mrs X’s further three enforcement complaints, it had before it all relevant information and decided that it would not take enforcement action.
38. The Council explained that some emails may be missing from its records because email records are destroyed once an officer leaves the Council’s employment. I can only judge the Council’s response from those emails it has saved on the central file. The Council has not shown that at the closure of each enforcement investigation it explained to Mrs X its powers, what it investigated and the reasons for its decision. In all four of the issues raised by Mrs X the Council has failed to properly set out for her its decision about enforcement action. This was fault causing her to lose faith in the procedure. However, I have seen evidence of site visits and liaison with the developer. This is in line with usual enforcement procedure. Therefore, I do not find this fault would have led to a different decision on whether enforcement action was necessary and expedient and do not find this caused Mrs X a significant injustice.
39. The Council has apologised to Mrs X for its failure to deal with her complaint within its 15 working day time scales. This is fault. However, I find the Council’s apology is an appropriate remedy for the frustration this caused to Mrs X.

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Final decision

40. I find the Council was at fault for its failure to tell Mrs X the outcome of its enforcement investigations, however I do not find this caused Mrs X a significant injustice. I also find fault for the Council’s delay in responding to her complaint but find the Council’s apology is an adequate remedy for the injustice caused. I do not find fault with how the Council considered its discretionary enforcement powers.

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Parts of the complaint that I did not investigate

41. The 12-month time restriction detailed in paragraph 7 above applies to Mrs X’s complaints about pre-planning advice and planning permission granted in 2018. This is because these matters arose more than 12 months before she contacted us in December 2021, and I can see no good reason why she could not have complained sooner.
42. Mrs X complains about the Council’s handling of the planning applications for the temporary hoarding and flagpoles and the site office. Such temporary structures are minor and common to most housing developments. While they need planning permission, their ongoing presence is very unlikely to cause any significant injustice, so I will not investigate this part of the complaint.

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Investigator's decision on behalf of the Ombudsman