Summary: We found no fault on Mr M’s complaint about the Council failing to take enforcement action against a nearby business for breaching planning consent. The Council was entitled to take an informal approach to his reports, especially as the business submitted a new planning application which it has yet to decide.

The complaint

1. Mr M complains about the Council:
1. wrongly granting planning consent for a neighbouring car business to use a former field to the front of his house for storing cars for maintenance;
2. wrongly granting planning consent for illuminated advertising hoardings;
3. failing to take enforcement action against the business for breaching planning consent conditions; and
4. allowing the business to make fresh planning applications despite not complying with previous consent.
2. As a result, his amenities are affected as cars block his drive, the car park is used for other purposes, an advertisement overlooks his house, and illuminated signs are left on beyond the time allowed, all of which affect the health of him and his wife.

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The Ombudsman’s role and powers

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)
4. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. 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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What I have and have not investigated

6. I have not investigated the following:

• Complaint a): This is because the law says 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).

Mr M only complained to us in October 2023 which means we can usually only investigate the Council’s actions from October 2022. Planning consent was granted in June 2012 and Mr M was aware on or around 2012 that consent was wrongly given. He had 12 months from becoming aware to make a complaint to us about it. I have seen no good reason why we should investigate this complaint after all the time that has passed.

Nor will I investigate any complaint he has about the current planning application for this area as it has still to be decided which means there is no decision.

• Complaint b): This is because these complaints are also ‘late’ for the same reasons given above. Mr M needed to complain to us within 12 months of being aware of the problem. All the applications for these signs were decided before October 2022. Again, I have seen no good reason why we should investigate this complaint after the amount of time that has passed.
• Complaint c): I am only investigating the Council’s actions from October 2022 on this complaint. This is because Mr M complained to us in October 2023. I have set out some of the actions before this date to put what happened into context. I have seen no good reasons why we should investigate any earlier part of it.
• Complaint d): This is because it was not fault for the Council to accept valid planning applications received. Legally, it must accept the applications and decide them.

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How I considered this complaint

7. I considered all the information Mr M sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr M and the Council. I considered their responses.

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What I found

Legal and administrative background

8. Councils can take enforcement action if they find planning rules have been breached. They 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 and dialogue 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 a range of options for formal planning enforcement action available to them, including:

• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it, and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already decided 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. 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 it can formally consider the issues.

Council enforcement policy (March 2020)

13. The Council will ensure any action it requires an individual or business to take is proportionate to, and balanced against, the risks.
14. It takes an incremental approach to non-compliance. Before formal enforcement action is taken, it will give the individual a chance to discuss the circumstances of the case and take these into account when deciding on the most suitable approach. This will include giving informal warnings and formal enforcement action.

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What happened

15. Mr M lives near to a business which has planning consent to use a former field for car parking. It also has consent for advertisements on site. Mr M complains the business failed to comply with consent conditions for both and the Council failed to take effective enforcement action in response.

Car parking

16. Mr M complains the Council originally granted consent for use of this field for car parking but limited the number of vehicles to 27. He complains it regularly has 50 vehicles, seven days a week, parking on it. Mr M also complains the business is using the car park to wash and sell cars which also breaches planning consent. His drive gets blocked by cars connected with the business.
17. The Council confirmed the following:

• Officers visited the site in 2016 and found 44 vehicles in the car park but decided it was not appropriate to take enforcement action. This was because they were parked in an orderly way on the hard standing area. Officers did not see any vehicles in the car park for sale or being worked on.
• During another visit, officers found one occurrence of the business working on a vehicle in the car park. While officers were present, the owner sent an email to all staff reminding them no vehicle sales or repairs were to take place in the car park.
• Officers again visited in 2019 and found 57 vehicles on site. The Council emailed the business about the breach and the need to comply with planning conditions. The business replied saying it found extra off-site space for the vehicles.

Another visit found 44 vehicles and a later one found 41. The Council again contacted the owner who said they were still working on a new site. The Council decided to issue a Breach of Condition Notice.

Officers did not identify any vehicles for sale there or worked on during other visits. The case was closed after a visit at the end of the year noted 20 vehicles on site.

• Officers visited in 2021 and identified 38 vehicles on site and again contacted the business. The business said it was preparing a planning application to vary planning consent to allow more vehicles on site.
• The business sent the Council a pre-application enquiry instead towards the end of the year and following this, it sent a full planning application in 2022 to extend the existing car park. The application was updated throughout 2023 and amended for 70 car parking bays. The Council has yet to make a decision on it. It had asked for amendments, including a reduced parking area.
• It has advised Mr M cars blocking his drive was a civil matter.

My findings

18. I found no fault on this complaint for the following reasons:
1. Enforcement action is discretionary. The Council could choose whether to take informal action, formal action, or no action at all when receiving Mr M’s reports.
2. The business currently has a planning application with the Council asking for consent to extend the car park. This application was amended several times during 2022/2023 and the Council has still to make a decision on it.
3. What this means is if the Council tried to take formal enforcement action against the business at any point during this period, the business could have defended it at court. This is because it could argue the Council had yet to decide its application to extend it and it might receive consent for more parking spaces anyway. The Council would have been vulnerable to paying the legal costs of the business too if it had successfully defended formal enforcement action.
4. The Council found no evidence of the car park being used for anything other than parking from October 2022.
5. The Council told Mr M cars blocking his drive was not a matter it could deal with. Its policy states where access to a property is blocked, and no parking restriction is in place, the matter should be referred to the Police as the offence of ‘obstruction’ is only enforceable by them (Parking Enforcement Guidance: paragraph 22.3).

Advertisement hoardings

19. Mr M complained the Council gave consent for the business to install further advertisement signs on site. It allowed 15 advertisements near his home all of which have lighting. Planning consent said lights for these should be switched off at 6pm but, he complained they remained lit until 9.30pm, seven days a week.
20. The Council took the following action:

• Officers visited in 2016, reminding the business about signage and its illumination which needed to be turned off when the premises closed. The business assured officers this would be done.
• Officers visited again in 2019. The Council’s Regulatory Services (environmental health) was told about the lighting issues Mr M raised. The planning enforcement team investigated the reports about unauthorised adverts. They found some changes to adverts. Officers sent an email to the business about these.

There was discussion about sending a planning application for the unauthorised signage, but the business decided to remove it instead. It would apply for planning consent to build an extension to the premises which would also include additional signage. After a further visit, the business confirmed it would change the timings of when the illumination was switched off.

The problem with turning the illumination off continued and again, the business was spoken to after a visit. The business confirmed the timer had been changed.

Regulatory Services asked the business to re-angle one of their external lights immediately which resulted in several others also being re-angled.

• Officers visited again in 2021 after a complaint about new signage and illumination. The business confirmed what action it would take to resolve the issues.
• In early 2022, an officer visited after further reports and found two breaches of planning conditions and the need to readjust a security light. The business agreed to readjust the spotlight and explained the timer for the illumination needed readjusting after a power cut. The business carried out these actions.

Regulatory Services contacted Mr M saying none of the light from the premises affected his bedroom windows. This meant as it would not impact on his sleep, it was unlikely to amount to a statutory nuisance.

• In October 2023, Mr M made a further report about illumination of signage and their use after business hours. The Council contacted the business about the report and the need to switch off lights once the building closed to the public. The business replied saying a recent power cut affected the timers again which had now been updated. The same year, the business applied for planning consent which the Council has yet to decide.
• In November, the Council asked Mr M for details of conditions he said were being breached, particularly valeting.

My findings

21. I found no fault on this complaint. The evidence shows the Council contacted the business following Mr M’s reports made in 2022 and 2023. The business acted as a result to prevent problems happening again.
22. In addition, it also applied for planning consent to extend the business premises. This would also involve changes to signage and illumination. As already noted, the Council has yet to decide on this application.
23. I am satisfied the Council was entitled to take an informal approach to Mr M’s reports in all the circumstances of the case. The evidence shows the business was willing to co-operate and indeed did co-operate when told about problems.

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Final decision

24. I found no fault on Mr M’s complaint against the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman