Summary: We will not investigate this complaint about the Council’s failure to take enforcement action against breaches of planning control and an Enforcement Notice. There is not enough evidence of fault in the way the Council has responded to the complainants’ reports to justify an investigation.

The complaint

1. The complainant, I shall call Mr X, complains the Council has:

• failed to take action to deal with repeated breaches of planning control on a nearby site; and
• failed to prosecute the landowner for non-compliance with an Enforcement Notice covering the same site.

2. He says the breaches are inappropriate development in a residential countryside area and a risk to road safety. This creates a lack of public confidence in the Council.
3. Mr X also complains the Council refuses to provide information that he has asked for under the Freedom of Information Act 2000.

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The Ombudsman’s role and powers

4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint,
  (Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

6. I considered information provided by Mr X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

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. Government guidance encourages councils to resolve issues through negotiation with developers.
10. 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)

11. Councils have options for formal planning enforcement action available to them, including (but not limited to):
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
12. 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.

My assessment

13. Mr X complained to the Council about breaches of planning conditions on a site near his home. He also complains the landowner is breaching an Enforcement Notice (EN) issued in 2015.
14. The Council confirms it investigated Mr X’s reports. Enforcement Officers have visited the site. A Highways Officer also visited.
15. Having investigated the site, the Council says it has certain conditions which cannot be enforced and the relevant planning permission has expired. However, there is a breach of planning control for the existing use of two buildings on the site. The Council has considered this breach. One of the two buildings has planning permission to store minibuses. The current use does not comply with this condition.
16. The Council says the Highways Officer does not consider the current use causes a highway safety issue. It also says planning permission has been granted on the site previously for storage. Officers consider it is likely that planning permission would be granted if it received an application. Having considered the relevant matters, the Council has decided it is not expedient to take enforcement action on the breach of the planning condition.
17. The Council has also considered the report of a breach of the Enforcement Notice which runs on the site in perpetuity. It confirms it has advised the landowner to rectify the breach, however he has not done so. The Council confirms it is in the process of taking legal action against the landowner.
18. I appreciate Mr X disagrees with the Council’s decision not to take further action, but the Ombudsman cannot question that decision unless there is evidence of fault in the way it was made.
19. I have seen no evidence of fault in the way the Council came to its decision. It has visited the site, considered the evidence and the previous planning history of the site, and sought the opinion of a Highways Officer. It has decided not to take enforcement action. This is a decision it is entitled to make.
20. Regarding non-compliance with the Enforcement Notice, the Council confirms it is taking legal action. I recognise Mr X’s concerns that the Council has not provided evidence of legal action, however, I have no reason to doubt this.
21. If Mr X believes the Council is withholding information to which he is entitled, it is reasonable to expect him to complain to the Information Commissioner’s Office (ICO). This is the body with specific powers and expertise to look into Freedom of Information Act and Environmental Information Regulations issues. The Information Commissioner’s Officer has powers which the Ombudsman does not have to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004.

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Final decision

22. We will not investigate Mr X’s complaint because we have not seen evidence of fault in the way the Council considered Mr X’s reports of breaches of planning control.
23. It is reasonable to expect him to complain to the ICO is he considers the Council is withholding information.

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Investigator's decision on behalf of the Ombudsman