The Ombudsman's final decision
Summary: We found the Council’s delay and poor communication in dealing with Mr X’s reports of breaches of planning control put him to avoidable time and trouble and caused frustration. To put matters right, having now made its enforcement decisions, the Council agreed to apologise to Mr X and pay him £250.
The complaint
Mr X said the Council acted unfairly and inconsistently in taking enforcement action against development at his home while failing to properly investigate and enforce the breaches of planning control he reported.
Mr X said what happened caused him significant stress and put him to time and trouble dealing with the Council and led to him incurring enforcement costs. Mr X wanted the Council to take enforcement action against the breaches of planning control he had reported at four properties near his home.
What I have investigated I have investigated how the Council handled Mr X’s reports of breaches of planning control at properties near his home. I have not investigated how the Council dealt with the breach reported at Mr X’s home for the reasons given at paragraph 40 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) We must also 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 investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended) The Planning Inspectorate acts on behalf of the responsible Government minister. Its inspectors consider, for example, appeals against planning enforcement notices.
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: considered Mr X’s written complaint and supporting papers; talked to Mr X about the complaint; asked for and considered the Council’s comments and supporting papers on the complaint; shared, where possible, the Council’s comments and supporting papers on the complaint; and shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.
Background
Planning Enforcement If development takes place without the necessary planning permission, there will be a breach of planning control. Councils should investigate reported breaches, but they do not need to act against every breach they find. Rather, the law gives councils a discretion to act. The Government’s National Planning Policy Framework (NPPF) says councils “should act proportionately in responding to suspected breaches of planning control”. The law sets time limits for enforcement action, usually either four or ten years depending on the development.
Councils often have a choice in what to do if they want to act against a breach, including issuing an enforcement notice. Councils must be satisfied it is “expedient” to issue an enforcement notice having considered their planning policies and any other material planning considerations. An enforcement notice will set out the breach and the steps needed, and by when, to deal with the breach. People have legal rights to appeal against an enforcement notice but once a notice takes effect, failure to comply with it is a criminal offence.
Councils may also ask for a retrospective planning application for the unauthorised development. They may do this where they consider the development could be granted planning permission. Councils will publicise retrospective applications, giving people an opportunity to comment, and then assess the development against relevant planning policies. The grant of planning permission on a retrospective application will regularise the breach.
The Council has a Planning Enforcement Policy (‘the Policy’) that sets out its approach to planning enforcement which, under ‘principles of enforcement’ says: “Torbay Council will apply [the Policy] in an equitable and fair manner. This means that there will be a consistent approach to investigation and consideration of enforcement action, but does not mean uniformity.”
The Policy sets out how the Council will decide if action is ‘expedient’ and includes considering if: the breach unacceptably affects public amenity; seriously risks public safety; and the land/buildings merit protection in the public interest.
The Policy also reflects the NPPF in saying ‘any action will be commensurate with the harm/potential harm caused by the unauthorised development’.
The Policy says, each year, the Council receives about 300 reports of a breach, which it will acknowledge within five working days. The Council will then check if the alleged breach has planning permission and, if not, whether any time limit applies preventing enforcement action. The Policy says the Council will keep in touch with both the person reporting the breach and the person allegedly responsible for the breach. And, if the Council decides not to take enforcement action, it will tell both parties the reasons for the decision. The Policy says people dissatisfied with the Council’s enforcement service may complain using its corporate complaints procedure.
The Council’s Corporate complaints procedure The Council has a 2019 complaints procedure. Under the procedure, the Council will acknowledge complaints within three working days. It then assesses each complaint to decide if it is sufficiently serious to merit an investigation by an Investigating Officer. If it is, the Investigating Officer contacts the complainant to confirm the extent of the investigation and the expected response date. The response date is normally within 20 working days or, for complex complaints, 30 working days. The procedure says the Council will let complainants know if it needs to extend the time for its response.
What happened In July 2020, the Council received a report about a breach of planning control at Mr X’s property. In the four months that followed, Mr X reported breaches at four nearby properties, which are Property One, Two, Three and Four in this statement. The Council said reports of breaches of planning control ‘spiked’ during COVID-19 restrictions while making it harder to carry out investigations, including site visits.
In October 2020, the Council contacted Properties One and Two and later followed up that contact.
In February 2021, unable to resolve by agreement the breach reported at Mr X’s home, the Council issued an enforcement notice. Mr X appealed the notice.
In July 2021, the Council closed its case on Property Two as the owner agreed to make a retrospective application for the unauthorised development. Discussions followed but the Council did not receive an application. The Council’s last contact with the Property Two owner was October 2021.
In October 2021, Mr X complained to the Council. He said it had acted unfairly in taking enforcement action against him but no action against Properties One to Four. Mr X asked the Council to confirm when it would deal with the breaches he had reported. The Council acknowledged the complaint and gave Mr X a November reply date, which it later extended to December 2021.
In November 2021, the Planning Inspectorate dismissed Mr X’s appeal and upheld the Council’s enforcement notice.
In January 2022, the Council responded to Mr X’s complaint and said: the last action on Property One was late January 2021; it had resolved the breach at Property Two by agreement and closed the enforcement case (see paragraph 19); and it had taken no action on Properties Three and Four.
The Council said it had investigated the breach reported at Mr X’s property in line with the Policy. Any different treatment of Mr X’s reports was not deliberate but due to the number of open cases and enforcement priorities. The Council accepted it had not properly investigated the reported breaches at Properties One, Three and Four within a reasonable time. It also accepted it had not kept in touch with Mr X about the cases. The Council apologised to Mr X, including for the delayed complaint response, and said it would prioritise the Property One, Three and Four cases. However, this would take several weeks given the number of open cases and other enforcement priorities.
The Council’s comments to the Ombudsman The Council said it had been addressing the ‘spike’ in open enforcement cases since early 2021. The steps taken included reorganising and providing additional resources, improved case monitoring, and fortnightly case review meetings. Open case numbers were reducing, and it expected to clear the ‘spike’ within 12 months.
The Council said it ranked open cases according to the breach and the severity of harm it caused, enforcement time limits, and the impact of neighbours’ amenities. The Council said the ‘spike’ in case levels led to many enquiries, and sometimes complaints, which impacted on the time available to progress open cases. It was therefore managing peoples’ expectations by explaining priorities and saying they would be informed of the enforcement decision on completion of the investigation. The Council said progress with cases and further service improvements, remained under review.
The Council said it had now told Mr X it had closed the cases on the four breaches he reported because: it had agreed a date for the owner to put right the unauthorised development at Property One; the owner of Property Two had appointed an agent to make the retrospective application (since received); there was no breach needing enforcement action at Property Three; and there was no breach at Property Four.
The Council said Mr X questioned its decision about Property Four, which concerned an overgrown hedge. The Council said it had now opened a further enforcement case about Property Four as Mr X claimed the overgrown hedge had caused damage to a listed building. The Council said it had asked Mr X for more information about the cause and extent of any damage to the listed building. The Council said it was also investigating ownership of the listed building as any enforcement notice it might later decide to issue would be sent to the owner(s). The Council said if Mr X was the sole or part owner of the listed building, he would receive any such enforcement notice.
The Council attributed delayed investigation of breaches at Properties Three and Four to overall case numbers and because neither had seemed urgent or a priority. The Council also said it had not kept in touch with Mr X due to pressures on officers’ time.
The Council accepted communication with Mr X had been poor, but said it had improved significantly with officers now having talked to and met with Mr X. The Council offered a further apology and £250 in recognition of Mr X’s time and trouble seeking information due to its earlier poor communication.
Consideration Introduction We are not a planning appeal body. Our role is to consider how councils reach their planning decisions and whether there is evidence of fault in the process. Where we find evidence of fault, we consider if this was likely to have affected a council’s planning decision and caused the complainant significant injustice. We can also consider how any fault may impact the wider public.
Was there evidence of fault Here the evidence showed significant delay by the Council in investigating Mr X’s reports of breaches of planning control at Properties One to Four. The Council accepted there was avoidable delay and that it did not communicate effectively with Mr X. I agreed there was fault here, including for Property Two as the Council did not follow up the agreement to make a retrospective application. The Council received the retrospective application for Property Two during my investigation of Mr X’s complaint.
The Council had now told Mr X of its enforcement decisions (see paragraph 26). Mr X might not agree with those decisions. However, the evidence showed the Council had taken suitable steps to investigate the cases, for example, site visits and seeking specialist heritage and building control advice. I therefore found no grounds to question how the Council finally reached its decisions. And, without evidence of procedural fault, I could not question the merits of those decisions (see paragraph 4).
The evidence showed the Council had, and while now reducing, still had, many open enforcement cases. So, the delays and poor communication highlighted by Mr X’s complaint no doubt affected other local people. However, the Council had and was continuing to act to improve its planning enforcement service (see paragraphs 24 and 25). Specifically, the Council had increased available support, actively monitored cases, managed peoples’ service expectations, and held fortnightly management review meetings. On balance, given the Council’s actions, I found no need to recommend added service improvements.
The Council’s response to Mr X’s complaint was also late. It is regrettable the Council did not let Mr X know it needed a further time extension when it missed its December 2021 target date. However, I found the apology made in the Council’s January 2022 response had already suitably addressed the matter (see paragraphs 22 and 23).
Was there evidence of injustice The Council’s poor communication no doubt caused Mr X injustice by putting him to avoidable time and trouble seeking information. And its delay dealing with Properties One to Four was likely frustrating for Mr X especially as the Council took formal enforcement action against his property. However, the Council may, and does, rank cases and have enforcement priorities that, with the circumstances of each case, will affect an investigation and time taken to reach a decision.
Unauthorised development can have a direct and significant adverse impact on a neighbour’s amenities (living conditions). So, delay in resolving a breach of planning control can result in people living for longer than they ought with such unacceptable impacts. Here, the Council decided not to act against Properties Three and Four. Mr X would therefore have found himself in the same position as he is now but sooner if the Council had reached those decisions without avoidable delay. I therefore found no greater injustice to Mr X arising from the time taken by the Council to reach its enforcement decisions on Properties Three and Four.
The date agreed by the Council to resolve the breach at Property One had not yet passed. And the Council had yet to decide the retrospective application for Property Two. I therefore considered what impact the breaches the Council found at Properties One and Two had on Mr X’s property. I found no evidence that either unauthorised development had a direct and or significant impact on Mr X’s living conditions. So, I found no greater injustice to Mr X beyond that identified at paragraph 35. And Mr X could now comment on the retrospective application received by the Council for Property Two if he wanted to raise planning matters about the development.
Agreed action
I found fault by the Council (see paragraph 31). I also found the Council’s offer of a further apology and £250 would put right the resulting injustice caused to Mr X (see paragraphs 29 and 35). The Council should also update Mr X once the agreed date for informal resolution of the breach at Property One has passed (see paragraph 26). The Council agreed and so will: (within 30 working days of this statement) send Mr X a written apology and pay him £250 in recognition of the frustration and avoidable time and trouble caused by its delays and poor communication; and by 30 September 2022, write to Mr X to update him about the breach of planning control at Property One to either confirm resolution of the breach or what steps it intends to take, and by when, to address any continuing breach.
Final decision
I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraph 38.
Parts of the complaint that I did not investigate Mr X said the Council demanded he deal with unauthorised development at his property within two weeks. The Council’s enforcement investigation into Mr X’s property led it to issue an enforcement notice. The Planning Inspectorate considered the substantive planning and enforcement issues concerning the enforcement notice. The Planning Inspectorate upheld the enforcement notice and dismissed Mr X’s appeal. As Mr X used his legal appeal rights, I could not investigate how the Council dealt with the breach of planning control reported at his property (see paragraphs 6 and 7).
Investigator's decision on behalf of the Ombudsman