The Ombudsman's final decision
Summary: Mr D says the Council has failed to take enforcement action for breaches of planning control at a site near his home. The Ombudsman has found evidence of delay by the Council. He has upheld the complaint and completed the investigation because the Council agrees to take action.
The complaint
The complainant (whom I refer to as Mr D) says the Council has failed to take enforcement action for breaches of planning control at a site near his home. He refers to events dating back to 2009.
What I have investigated I have looked at events from January 2020 onwards. I explain below why I am not considering earlier incidents or matters which did not cause a personal injustice to Mr D.
The Ombudsman’s role and powers
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) 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: any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6)) We must consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We cannot question whether a council’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) If we are satisfied with a council’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 have considered the information provided by Mr D. I asked the Council questions and examined its response.
I shared my draft decision with both parties.
What I found
What happened
Background
Mr D has been complaining to the Council since at least 2009 about activity on a site (the site) neighbouring his home. In 2017 a planning application was granted, at appeal, to erect a day room and pitch a caravan and a mobile home at the site.
Events I have investigated Throughout the period I have investigated there has been substantial contact by Mr D and Councillors acting on his behalf with the Council. I have not detailed that contact but have seen all the correspondence.
In February 2020 the Council granted retrospective planning permission for the site. This included the erection of two day rooms, stables and pitches for four mobile homes. Planning conditions limited the number of caravans permitted at the site and required a range of actions including submission of a landscaping scheme. There was a “buffer zone” between Mr D’s home and the development. In February the Council asked the Agents for the Site Owner to detail discharge of relevant conditions within a month.
In May Mr D told the Council that large volumes of soil had been dumped in the buffer zone and had raised the ground level. In June Planning Officers sought to inspect the site but could not gain access. On 10 June they viewed the buffer zone and met Mr D. They took photographs and noted there were large amounts of soil that had been deposited, most likely from the site. Later that month the Planning Officer contacted the Agent. The Site Owner was not available, and the Council wanted access to the site in respect of the soil deposits. It also required an update on the discharge of conditions. The Agent said there may be changes to the plans for the site requiring a new planning application. On 9 July Planning Officers met Mr D, they again saw the soil deposits. They also agreed to get a Tree Officer to check whether the deposits were affecting trees on the site. At the end of the month a Tree Officer attended the site and noted the trees did not merit statutory protection. No further action was required for them.
The Council gained access to the site at the end of August. The Planning Officer noted the day room had not been built, more vehicles were on site than permitted. The Site Owner denied any earthworks had taken place. In September the Council considered the case and whether it should take enforcement action regarding the soil left in the buffer zone. At the start of October, it told Mr D it was drawing up an Enforcement Notice requiring the land level in the buffer zone be reduced. It was also considering other breaches of conditions but if a valid planning application was received this would impact on any enforcement activity. By mid-October the Council had received a new planning application for the site which included additional spaces for mobile homes. The applicant said there was likely to be a further application (which was subsequently received). The Council considered its options. Because the new applications would address the breaches (other than soil deposits) it could not pursue enforcement action until the applications were decided.
In January 2021 the Council told Mr D it had a duty to consider any new planning applications for the site. The Enforcement Notice about soil deposits was with the Legal Team. The other breaches were addressed by the new applications. In July the Council confirmed to Mr D it had not issued the Enforcement Notice. The Enforcement Notice was served in November 2021. In December the Agent advised the Council that surveys for the area would be used as evidence to appeal the Enforcement Notice. In January 2022 the Council received confirmation that an appeal had been lodged with the Planning Inspectorate.
What should have happened The Council will consider reports of breaches of planning control. It will allocate a case to a Planning Officer to investigate. The Planning Officer must assess whether there is evidence of a breach and whether it is proportionate to take formal enforcement action.
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. 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) A developer has the right to apply for planning permission, including retrospective permission. Where an application is made the Council has to put on hold enforcement action relating to breaches that may be regularised by the application.
Where the Council issues an Enforcement Notice there is a right of appeal to the Planning Inspectorate. If an appeal is made the Notice is put on hold until an appeal decision is made.
Was there fault by the Council There is evidence of significant delay by the Council in respect of the Enforcement Notice. Officers visited and viewed the soil deposits in July 2020. They gained access to the full site in August. In October the Council said it was drawing up the Enforcement Notice. However, the Notice was not issued for more than a year, finally being issued in November 2021. The Council says it had to establish whether any actions fell to the County Council, however I see no evidence of this significantly prolonging the case. I also appreciate that covid-19 may have had an impact of the functioning of the relevant Council team, but I still cannot see a justification for such a significant period of delay. In my view the Council took 12 months longer than necessary to issue the Enforcement Notice.
In respect of the discharge of conditions issue, the Council did pursue this with the Site Owner and his Agent. There were delays primarily caused by those parties, rather than the Council. In the eight month period between the granting of retrospective planning permission and the receipt of new planning applications I do not see the Council is at fault for not taking enforcement action. It remains the case that such action is discretionary. The Council was aware of the concerns raised by Mr D and sought to address those with the site owner. Whilst I understand Mr D wanted the Council to commence enforcement action it was not obliged to do so. Once new planning applications were received in 2020 the Council could not take enforcement action in any event because the new applications sought to regularise any alleged breaches. The Council will have a duty, if the applications are refused and not appealed, to then consider whether enforcement action is proportionate. The Ombudsman will not question the merits of decisions taken by the Council in the absence of administrative fault.
Did the fault cause an injustice The delay identified meant Mr D was left pursuing the Council about whether it was taking enforcement action for the soil deposits.
Agreed action
The Council has acknowledged to me there were some delays and apologises.
To remedy the injustice I have identified, the Council has also accepted my recommendation to pay Mr D £100 for time and trouble. It would be helpful if the Council could provide Mr D with regular updates/ meetings when there are significant developments in the case. These actions should be confirmed within the next four weeks.
Final decision
I have upheld the complaint and completed the investigation.
Parts of the complaint that I did not investigate We cannot look at events going back to 2009. The Ombudsman expects a complaint to be made within 12 months of the matters arising.
Mr D refers to concerns about misuse of electricity cables/ power supply and also raises non-payment of the Community Infrastructure Levy (CIL). I am not investigating those points. Electricity cables and potential fraudulent supplies are not for the Council or the Ombudsman to consider. The CIL complaint did not cause a personal injustice to Mr D.
Investigator's decision on behalf of the Ombudsman