Summary: Mr Z complained the Council delayed taking enforcement action since opening an enforcement investigation in 2018 and has failed to ensure a sports pitch is brought back into public use. There have been periods of time since February 2018 where the Council allowed the matter to drift and it failed to progress this matter. The Council should apologise to Mr Z.

The complaint

1. Mr Z complained the Council delayed taking enforcement action since opening an enforcement investigation in 2018 and has failed to ensure a sports pitch is brought back into public use.
2. Mr Z says the land has been fenced off and is not available for use by the local community and general public.

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The Ombudsman’s role and powers

3. 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)
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 have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Background

6. Mr Z lives close to land that was granted planning permission in 1997. The planning permission was subject to a section 106 agreement which required the retention of a sports pitch only to be used for one specific sport. The use of the sports pitch for the specific sport ceased in 2004. The land was then used to graze horses which was in breach of the section 106 agreement. The Council closed the enforcement case in 2015 when that use ended. The Council says that there has been on breach of the section 106 agreement since that time as the land has not been used.
7. In 2019 the Council refused a planning application to change the use of the land to a dog day care centre. The planning inspector dismissed an appeal on this case in November 2019.
8. In June 1997 the Council refused an application to discharge the planning obligations associated with the section 106 agreement. The Council also refused an application to discharge the planning obligations in respect of the sports pitch.

Enforcement Case

9. In February 2018, the Council opened an enforcement investigation in respect of the condition of the land and the sport pavilion. The Council contacted the owner and requested and undertaking that they would improve the appearance of the building. The owner responded saying he had bought the site in 2016 and was in the process of submitted a pre-application enquiry which would address the untidy land and derelict building.
10. In July 2018 the Council wrote the owner saying that action was required to tidy the land as it was not known if planning permission to develop the land would be granted. The Council requested specific action including painting the exterior of the building, removing graffiti and repairing the roof.
11. In September 2018 the Council requested a site meeting to agree remedial works. There is nothing to suggest a meeting took place. In February 2019, the Council wrote to the owner again requesting a site meeting following refusal of the planning application for the dog day care centre. There is nothing to suggest a meeting took place. The owner then submitted an appeal against the refusal. The planning inspectorate dismissed the appeal in November 2019.
12. Following a site visit in January 2020, the Council wrote to the owner requesting the site is made secure to prevent public access given the dilapidated condition of the building. Another visit in 27 April 2021 found that some works had taken place but the building was still in a state of disrepair.
13. Officers visited the site in February 2022 and noted the building had been repainted, the roof replaced and a new hedge planted. Officers decided the enforcement case could be closed as improvements works had been carried out.

Sport pitch

14. Mr Z wants the sport pitch to be brought back into use. He believes that the purpose of making the section 106 agreement was to ensure there was a sport pitch for the use of the community. He says the land has been fenced off and out of use for many years and feels the Council should take action to resolve this.
15. In response to my enquiries the Council says the section 106 agreement signed in 1997 put a restriction on the land to ensure it is not used for any other purpose than a sport pitch. It says there is no requirement for it to be maintained as a sport pitch or made available for public use. It says as the land is currently not being used, there is no breach of planning control.
16. The Council approached the owner in March 2020 and offered to purchase the site from the owner. The owner rejected the offer. The Council says requests have been made for it to use a compulsory purchase order to acquire the land. It says that it has taken legal advice and that there is very high legal threshold to commence a compulsory purchase order and it would need to demonstrate that it has engaged with the landowner.
17. The Council says the owner has put forward a proposal to the community for part of the land to be used for a community purpose. It says that while such proposals are being considered it is not appropriate to use compulsory purchase powers. It says this will be kept under review and it does not rule out using such powers if considered appropriate in the future.

Analysis

18. Mr Z complains about delays in progressing the enforcement case in respect of the untidy land. The information provided shows the Council opened the case in February 2018 and closed it February 2022. As the case is now closed, I have considered whether there were periods of avoidable delay in that four year period.
19. I am satisfied the Council acted without significant delay after opening the enforcement investigation in February 2018. Following the submission of the planning application in September 2018, the Council put further enforcement action on hold. I am satisfied it was appropriate for the Council to wait for the outcome of the planning application before taking further action.
20. The planning application was refused in February 2019 at which point the Council wrote to the owner to request a site visit. The Council failed to take any further action before the owner submitted an appeal in August 2019. The Council has not provided any explanation for why it did not follow up between February and August 2019. I consider this to be fault.
21. The owner submitted an appeal against the refusal of planning permission in August 2019 and so again I find no fault in the Council putting action on hold while this determination was pending.
22. The Council visited the site in January 2020 following the decision to refuse the planning appeal. It took action following that visit regarding works to the building. The first COVID-19 lockdown began in March 2020 and so I find no fault in the Council putting further action on hold while the lockdown was in place.
23. I am not aware of any government guidance preventing council’s from conducting site visits, especially if they were outdoors as would have been the situation in this case. Social distancing advice was available and would have been applicable by summer 2020. I am therefore not persuaded by the Council’s position that it was unable to conduct a site visit due to the COVID-19 pandemic until April 2021. The Council has not shown evidence of it actively pursuing the case from April 2021 onwards. I note its comments that the COVID-19 pandemic had a significant impact on its workload but based on the information provided, I consider the Council allowed this case to drift and that the failure to actively pursue it amounts to service failure.
24. Where we find fault, we then have to consider what injustice his has caused to the person making the complaint. Mr Z is frustrated that the land is not available for use but regardless of the delay, the land is not available for him to use. It is privately owned and the landowner has chosen to keep it fenced off. I consider an apology for the delay is an appropriate remedy for the frustration caused to Mr Z.
25. Mr Z wants the land to be brought back into use for the community and general public. While I fully understand his position, my role is to consider whether the Council is at fault for the fact this has not happened. I am aware the Council’s offer to buy the land in 2020 was rejected by the landowner. The information provided shows that the Council has given consideration to using compulsory purchase powers but that its professional judgement is that this is not appropriate at this time. While Mr Z may not agree with the Council’s assessment or decision, I am not persuaded there is any fault in how the Council has made that decision and so I cannot criticise it.

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Agreed action

26. Within one month of my final decision on this complaint, the Council should provide a written apology to Mr Z to recognise the frustration caused by delays in the enforcement investigation.

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Final decision

27. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman