The Ombudsman's final decision
Summary: Mr X complained about how the Council handled and investigated his concerns about the use of a car park next to his property, owned by Mr F. The Council was not at fault. It has investigated Mr X’s reports of anti-social behaviour and breaches of planning conditions appropriately and was not at fault when Mr F removed a gate to the car park during 2021. There was some fault in how the Council handled Mr X’s complaint however it has already apologised for any injustice that caused.
The complaint
Mr X complains about how the Council has handled and investigated his reports and concerns to do with a car park next to his property which is owned by a local businessperson, Mr F. Mr X complains: The Council’s enforcement officer has a personal relationship with Mr F which is the reason why no action is being taken.
The Council has failed to take action in relation to breaches of planning conditions around the use of the car park The Council unfairly issued him with a Community Protection Notice in 2020 The Council wrongly got involved in assisting Mr F in removing a gate to the car park which Mr X says belonged to him, not Mr F.
Mr X says the Council’s handling of matters is causing him and his family distress and frustration and has ruined his reputation.
What I have investigated I have not investigated the circumstances around the Council issuing Mr X with a Community Protection Notice for reasons explained at the end of this statement.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)
How I considered this complaint
I spoke to Mr X and considered the information he provided.
I considered the Council’s response to my enquiry letter.
Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.
What I found
Planning Enforcement 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.
Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. 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.
Councils have a range of options for formal planning enforcement action available to them, including Breach of Condition Notices which require compliance with the terms of planning conditions already determined necessary for approval of the development.
What happened Mr X lives in a house with land used as a car park situated behind. The entrance to the car park is via a strip of land which runs from the road, past the side of Mr X’s house. Historically there has been an access gate to the strip of land leading up to the car park and a further access gate to the car park entrance. There is also a separate pedestrian access and gate to the car park. The car park is owned by Mr F and use of the car park is controlled by planning conditions. One of the planning conditions is to limit the use and access of the car park between the hours of 11pm and 8am. During these hours the car park entrance gate and the pedestrian gate must be closed and locked.
There have been long standing issues and disputes between Mr X and Mr F around ownership and use of the access road and car park. This has sometimes resulted in police attendance to try and resolve the disputes. These incidents included Mr X blocking access to the car park and Mr F chaining open the gates. Mr X says Mr F’s continued breach of planning conditions allows for frequent anti-social behaviour.
Mr X said he told the Council about breaches of planning conditions at the end of 2019. This was around people using the car park outside of the hours allowed and leaving gates unlocked. The Council investigated Mr X’s concerns and decided to take informal action by reminding Mr F of permitted times of use.
Mr X complained to the Council about how the officer had dealt with the breaches of planning conditions. Mr X says the Council did not acknowledge or respond to his complaint.
The Council said officers from its Community Protection Team met with Mr X in 2020 after he raised a number of incidents but there was no evidence to substantiate Mr X’s claims.
Mr X said he re-sent his complaint in August 2020 which the Council acknowledge and said it would investigate and be back in touch. The Council did not respond to Mr X’s complaint.
Towards the end of 2020 the Council said it received reports and evidence from Mr F that Mr X and his family had closed the access road gate on 22 occasions during the hours of permitted use, blocking access to the car park. Following this the Council decided to issue Mr X with a Community Protection Notice (CPN). Mr X appealed this notice in early 2021 at the Magistrates Court which issued a consent order quashing the notice.
In May 2021 Mr F called the Council and said he intended to remove the access road gate. Mr F said he was worried about Mr X’s reaction to this due to the previous history and asked whether the Council could provide any assistance. The Council asked the police to attend to prevent the matter escalating. Records show Mr X implied the gate was part owned by him and two other people, however, Mr F provided title deeds from his solicitor which he said showed the land and gate belonged to him. The solicitors letter said ‘Mr X does not own the gate or have any right to take action with the gate’. Mr F removed the gate.
Mr X complained again to the Council in June 2021 about its handling of his reports of breaches of planning conditions and about how the Council officer dealt with his reports. He said the Council officer who dealt with the case was biased towards Mr F and had not taken appropriate action. Mr X said the Council’s handling of matters allowed the situation to escalate to him receiving the CPN.
The Council responded in July 2021. It said the officer who dealt with the case in 2019 was impartial and had to deal with counter allegations from Mr F at the same time. It said it took informal action to remind Mr F of the planning conditions which Mr F agreed to adhere to. It said it would investigate further reports of breaches accordingly. The Council was satisfied it issued the CPN appropriately. The Council apologised for not dealing with his complaint sooner.
Mr X remained unhappy and escalated his complaint to stage 2 of the Council’s complaints procedure. He reiterated his upset at the Council officer and said they had failed to investigate and address the breaches of planning conditions. He also complained the CPN was unfair and illegal. Mr X further complained that the Council acted outside its jurisdiction by assisting Mr F in removing the gate. Mr X said the gate belonged to him and his neighbours and was a civil matter which did not concern the Council. Mr X said he felt harassed and bullied by the Council.
The Council responded to Mr X at stage 2. It said the officer refuted they had acted in an unprofessional or biased manner and as it had no call recordings it could not investigate this further. The Council said it had fully investigated Mr X’s reports of breaches of planning conditions and had worked with Mr F to resolve these. It apologised again for the oversight in not dealing with Mr X’s complaint earlier.
Mr X remained unhappy and complained to us. He said he had continued to report breaches of planning conditions and the Council had failed to take any action against Mr F. Mr X believes the Council is corrupt and does not take any action against Mr F because it has a personal relationship with him.
In response to our enquiries the Council said it had recently issued Mr F with a breach of planning conditions notice following further reports from Mr X. It said it will keep this matter under review. It had also carried out an investigation into allegations of anti-social behaviour and other offences following reports from Mr X and others in the local area regarding Mr F.
The Council wrote to Mr X in May 2022 and informed him it had served the breach of planning condition notice on Mr F. It advised Mr F that it was not in the public interest to use its powers to prosecute Mr F for allegations of anti-social behaviour or issue him with a CPN. It said Mr X should report criminal offences against Mr F to the police.
My findings
Mr X says the Council failed to take any action against Mr F because both the officer and others in the Council have a personal relationship with him. The Council deny this is the case and the officer denied acting in a biased manner. I have seen no evidence to support Mr X’s claim that the Council has a personal relationship with Mr F, so, further investigation into this by me is unlikely to achieve anything more. Furthermore, the officer took informal action in response to the reports in 2019 which they were entitled to do.
Mr X is unhappy the Council issued him with a CPN in 2020. I have not investigated this for the reasons given at the end of this statement.
Mr X says the Council did not have jurisdiction to assist Mr F in removing the road access gate to the car park. Mr F removed the gate, not the Council. The records show the Council’s community protection team asked the police to attend, when Mr F said he intended to remove the gate, to prevent any escalation between Mr F and Mr X. It was a police decision to accept that request. There is no evidence the Council acted with bias or took any sides. In any case, the ownership of the gate is a civil matter. It is not something the Ombudsman can decide on. It is not through Council fault that Mr F removed the gate. In any case Mr X has already taken this matter to court, therefore it is not appropriate for me to comment on this further.
We are not an appeal body and can only criticise a council if there was fault in the decision-making process. The Council has investigated the concerns raised regarding anti-social behaviour, criminal offences and breaches of planning conditions by Mr X and others. The investigation report considered CCTV and various accounts from people. It considered the law and the Council’s powers. The Council decided there was insufficient evidence to take further action against Mr X using its powers. It appropriately issued Mr F with a breach of planning conditions notice and will keep this under review. There was no fault in the way the Council carried out its investigation or in the way it reached its decisions.
The Council’s complaint handling was poor. Records show Mr X raised a complaint in 2019 and again in 2020 without response. That was fault. The Council has already apologised for this in subsequent complaint responses which is sufficient to remedy any injustice this caused Mr X.
Final decision
I completed my investigation. There was no fault in how the Council has handled Mr X’s reports and concerns about the car park. There was some fault in complaint handling however the Council has already apologised for any injustice this caused.
Parts of the complaint that I did not investigate I did not investigate the circumstances around the Council issuing Mr X with a Community Protection Notice in 2020. This is because we cannot investigate any matter that has been the subject of court proceedings. Mr X appealed the notice at the Magistrates Court in 2021 and the Court issued a Consent Order quashing the notice. Mr X has also previously complained to us about the same matter and we decided not to investigate the matter for the same reason.
Investigator's decision on behalf of the Ombudsman