This fact sheet is aimed primarily at people who believe the council should be taking enforcement action against a nearby development and may be considering making a complaint to the Ombudsman.
I think there has been a breach of planning control near my property and the council has not taken enforcement action. Can the Ombudsman help me?
Yes. We usually investigate complaints where the evidence suggests there has been a significant breach of planning control that directly affects you and where your complaint is about the way the council has dealt with, or failed to deal with, the matter.
Councils can take enforcement action where someone needs but does not have planning permission for a development or where the developer has not complied with conditions attached to a planning consent. There is a wide range of informal and formal action which councils can take.
However, it is not our role to decide whether the council should take enforcement action.
We have to take into account that:
- Quite a lot of development, including some house extensions, can take place without planning permission because it is permitted by law. So the council has first to be sure that the development complained about does need permission.
- Enforcement powers are discretionary. Before taking enforcement action, the council must be satisfied that such action is the right thing to do (that it is 'expedient').
- Government guidance does not say that councils should take action against all unauthorised development, but a council should take action where serious harm to local public amenity is being caused.
- Government guidance also says councils should act proportionally. To decide this, councils should consider whether they would approve the unlawful development, if they had received an application. They should ask themselves would the development satisfy policies on the local development plan?
- The Government also says that councils should try informal methods of resolving the matter before considering the use of legal powers. So formal action may not happen or be immediate.
- The Ombudsman may not question the merits of decisions which have been properly made. We do not comment on judgements councils make, unless they are affected by fault in the decision-making process.
How do I complain?
You should normally complain to the council first. Councils often have more than one stage in their complaints procedure and you will usually have to complete all stages before we will look at your complaint.
Then, if you are unhappy with the outcome, or the council is taking too long to look into the matter – we think 12 weeks is reasonable – you can complain to us.
You should normally make your complaint to us within 12 months of realising that the council has done something wrong.
If you can consider my complaint what will the Ombudsman look for?
We consider whether the council has done something wrong in the way it went about dealing with a report of a planning breach that has caused you problems. Some of the faults we might find are that the council:
- unreasonably delayed assessing whether there is a breach of planning control
- unreasonably delayed deciding how serious the breach is and what action is appropriate
- unreasonably delayed taking enforcement action where it accepts it is justified
- failed to keep proper records, such as records of site visits
- failed to have a written policy on planning enforcement or failed to take its policies into account when deciding what action to take
- failed to tell the parties involved of its decision or to keep them informed of progress, or
- failed to liaise properly with other departments, such as environmental health or building control.
What happens if the Ombudsman finds that the council was at fault?
Where there has been fault and you have suffered as a result, we can recommend that the council takes action to put the matter right. Depending on what the complaint is about, we may ask the council to:
- decide if and what enforcement action is warranted and take that action in a reasonable time
- provide better and more timely information about what is happening, or
- improve procedures so that the same problems do not occur again. For example we may ask a council to introduce a new guidelines to clarify its enforcement priorities.
We may also ask the council to make a financial payment in some serious cases; the amount we suggest will depend on how much you have been affected by what the council has done wrong. An example would be where we find there has been a long period of unreasonable delay and the unauthorised development significantly affects your amenity.
Examples of some complaints we have considered
Mr X complained the council had not done enough to control hours of construction and dust on site being developed for housing. We found there were delays in the council taking action against the developers and that the council failed to issue a proper notice which meant it had to abandon court action. We also found the council had failed to reach decisions about whether planning controls had been breached as a result of noise from work on the site.
The council also said Mr X was a vexatious and unreasonable complainant despite there being no evidence to support this.
We said the council should pay Mr X a financial remedy for distress caused to him and his time and trouble pursuing the complaint over a number of years. We also said the council should provide him with diary sheets so he could report further breaches and reverse its decision that he was unreasonable and vexatious complainant. We also said the council should carry out unannounced visits to the site and report back to the Ombudsman about the outcome of its further investigations and Mr X’s diary sheets.
Mr B complained the council delayed taking action against the use of a residential property for business purposes near his home. He said this caused noise and a loss of value to his home.
Mr B’s neighbour was operating a carpentry business from his home. The council served a notice requiring the neighbour to provide information about the use of his home as a business without delay. However, it then took too long to progress action and failed to communicate with Mr B. The council eventually refused to grant planning permission for the business use of the property. The neighbour appealed the decision with the Planning Inspectorate.
We said the council should write to Mr B to apologise for delays and pay him £200 to recognise the time and trouble he was caused.
Other sources of information
You can also contact Planning Aid at www.rtpi.org.uk/planningaid/
Your local council’s website usually provides some information about its planning enforcement service.
Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.