The Ombudsman's final decision
Summary: We found no fault in how the Council reached its decision not to take enforcement action against a breach of planning control near Mr X’s home.
The complaint
Mr X said the Council failed properly to investigate a breach of planning control on land (‘the Site’) near his home because it: failed to comply with planning enforcement law; acted with bias and predetermination; and failed to challenge or substantiate inadequate information provided in response to a planning contravention notice.
Mr X said the Council’s enforcement decision meant he would continue to experience significant disruption from use of the Site. Mr X wanted the Council to fully and thoroughly explain how it investigated the breach and reached its enforcement decision.
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) 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 information; talked to Mr X about the complaint; asked for and considered the Council’s comments and information about the complaint; shared, where possible, the Council’s comments and information with Mr X; and shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.
Background
Most development, which includes a material change in the use of land, needs planning permission from the local council. 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. For example, enforcement action must usually be taken within 10 years of a material change in the use of land.
Councils often have a choice in what to do if they want to act against a breach. And where councils believe a breach may have taken place, they may serve a planning contravention notice (PCN). Councils may send a PCN to the person owning, occupying or carrying out activities on the land where there appears to be a breach. The PCN will ask for information about how the land is used. It is an offence to not complete or return a PCN and to provide false or misleading responses.
The Council has a 2016 Planning Enforcement Statement (‘the PES’) that sets out its approach to planning enforcement. The PES refers to the NPPF and that enforcement action must be ‘expedient’ and ‘proportionate’. The PES says the Council will normally seek to resolve a breach before taking formal enforcement action. The PES also says the Council will keep in touch with the person reporting a breach and tell them of its decision. The PES says enforcement investigations can take months, and years, to resolve but the Council’s target is to decide what action it will take within six weeks of receiving notice of an alleged breach. The PES says that a change of planning use will be immune from enforcement action if it has continued at the same intensity for 10 years or more.
What happened Mr X had longstanding concerns about use of the Site, which had previously led him to complain to both the Council and the Ombudsman. The Council first opened a planning enforcement investigation into business activities on the Site in 2002. Its records showed it found some business use taking place on the Site and had kept the enforcement case open until 2012. The Council no longer held full details of the investigation. Its remaining records suggested the business activities were not of a scale or intensity to be a material change of use or therefore a breach of planning control. The Council said its planning enforcement team (‘PET’) received no reports or complaints about the Site after it closed the case in 2012 until 2020.
In 2020, during the COVID-19 emergency, Mr X (and other residents) contacted the Council about business use of the Site. Mr X told the Council that since 2017 there was a significantly larger commercial vehicle on the Site. He also said the deliveries to the Site, including by noisy refrigerated vehicles and of gas cylinders, had increased. Mr X said both parked cars used by people on the Site, and lorries and vans while unloading, often hindered residents’ access. And use of the Site for commercial activity caused noise and disturbance. Mr X also referred to a commercial vehicle returning to the Site and causing a disturbance around 5am each day.
The Council opened a new enforcement case into whether there had been a material change in the use of the Site (‘the Investigation’). The Investigation included four site visits to inspect the Site and its surroundings. Some visits were unannounced, and some included repeat attendance at/near the Site during the same day to assess any noise and disturbance. The Council met with the Site owner (‘B’) and talked to other people on the Site. The Council liaised with and sought information from other public bodies and third parties. The Council also researched commercial vehicles linked to the Site. The Council also considered information from the first enforcement investigation. And its PET liaised with colleagues in other departments seeking information about use of the Site.
The Council also communicated with residents. It explained it needed to identify when the character and nature of the use of the Site changed so much that a material change in planning use took place. The Council said the information should be accurate as it might need to rely on residents’ statements if it took enforcement action which B then challenged. Mr X and other residents responded and sent the Council comments and information about use of the Site.
After about six months, the Council wrote to residents about the evidence gathered during its investigation. It said the evidence supported commercial use of the Site continuing for about 20 years without a significant change, other than the size of a commercial vehicle. So, there was not enough evidence of a breach that was not immune from enforcement action. The Council said it recognised residents’ strong concerns so, rather than closing the case, it asked if they would keep a diary for a month recording activities they noticed on the Site. While not satisfied with the Council’s position, residents kept a diary.
The Council also sent B a PCN and later met again with B. The Council then wrote to B referring to their discussion about answers to questions in the PCN (‘the Letter’). The Council also attached a copy of the PCN, with answers, and asked B to: “…make any changes…to ensure [the answers] are correct and add in information (such as car registrations) for completeness, then sign and date the declaration and return…” The Letter also raised, and asked B to address, two issues. The unsuitability of a large lorry making deliveries to the Site; and information about the scale of business use on the Site. On the scale of use, the Letter sought “anything that demonstrates that there has been no significant change in the business”. (The Council’s records showed B later contacted the Council about changes to deliveries but B’s agent did not respond to its attempts to secure information about the scale of the business.)
Later, B signed and returned the PCN, adding some information.
The Council prepared a report on its Investigation (‘the Report’). The Report commented on use of the Site from 2002. The Report summarised and assessed the evidence gathered during the 2020 investigation, including information from Mr X and other residents. The specific issues assessed in the Report included deliveries, use of buildings on the Site, employees, noise and disturbance, and 10 years of continuous use.
In summary, the Report found COVID-19 restrictions led to neighbours noticing deliveries. (Mr X disputed this and said residents acted in response to B’s repeated breaches of COVID-19 restrictions). The deliveries and un/loading created intermittent, but not persistent daily, noise. The Report found sensitivity to such activity had significantly increased as residents were at home during COVID-19 restrictions. But there was no evidence deliveries and related activities had suddenly grown or changed at any point in the last 10 years. The Report also found no marked difference in commercial activities on the Site between 2002 and 2020. And employee numbers did not significantly change after 2002 or link with any significant increase in activity. The Report found no gap in activities that would ‘break’ the 10 years continuous use of the Site for business purposes.
The Report said B changed commercial vehicles in 2007 and 2017. The Report described the 2007 vehicle as “specially adapted triple-axle” and of “4500kg weight”. And the 2017 vehicle as “5000kg, 3-axle adapted” of “similar length” to the 2007 vehicle and “about 11% heavier”. The Report referred to residents’ saying noise had increased in 2017 on arrival of a much larger commercial vehicle on the Site. The Council said it found the 2017 vehicle to be substantively the same as its 2007 predecessor.
The Report said it was likely the business grew in 2007 on replacement of the original commercial vehicle. The business probably continued to grow after 2007 but there was no evidence of a specific time when new or increased activities took place. The material change of use of the Site to include business activity had been continuous for over 10 years and so was immune from enforcement action. The Report said the Council would encourage B to consider neighbours’ and avoid overlapping deliveries, park considerately and minimise noise.
The Council shared the Report with residents, including Mr X. Residents were dissatisfied with the Council’s decision and said they would not stop reporting incidents. The Council said it could not address residents’ concerns unless there was a breach of planning control, and it had no powers to force B to take act considerately.
Mr X complained to the Council about the Investigation, including the service of the PCN and the evidence relied on in the Report. The Council apologised for its delay in responding to the complaint. And, in summary, said, while Mr X might disagree with the PCN information, that did not mean it was false or incorrect. The Council also said it had sought information about the scale of the business (see paragraph 14) because of residents’ claims about the 2017 commercial vehicle. But its research led it to find the vehicle size significantly increased in 2007 and not 2017. The Council also said the law did not say it must serve the PCN on the mortgage provider for the Site. The Council said its enforcement investigation had been in line with the law and proportionate.
Following further contacts from residents about the Site, the Council opened a third enforcement investigation. The Council, after visiting the Site, completed a ‘report and assessment tool’ recording the ‘defining character’ of the Site. The Council said it would use the recorded information as a base to compare any future changes to use of and activities on the Site. However, the Council did not find a material change in use of the Site since it had closed the Investigation.
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 is likely to have affected a council’s planning decision and caused the complainant injustice.
As a publicly funded body we must be careful how we use our limited resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision on whether a council has acted with fault. This means we do not try to answer every question or address each detailed point raised by a complainant about what a council did. So, we cannot always respond to complaints in the detail people might want. Here, Mr X wanted the Council to be compelled to respond clearly and diligently to all the questions and concerns raised in the complaint correspondence. While I carefully considered all that Mr X said, this statement does not, and did not need to, address every point raised in his correspondence with the Council. My focus was whether the Investigation fell below acceptable administrative standards, so fault brought the Council’s decision not to take enforcement action into question.
Planning enforcement law Mr X said the Council should have sent the PCN to the mortgagee of the Site. Councils do not have to serve a PCN where they believe there has been a breach of planning control on land. Rather, they have a discretion to do. They also have discretion about who should receive a PCN. Here, the Council sent the PCN to the people it understood to own and occupy the Site and be carrying out the business activities thought to breach planning control. Having considered the questions and information sought by the PCN for the Site, service on the occupiers was appropriate. The evidence did not show any mortgagee was ‘in possession’ of the Site or able to provide information about how the Site was used. I found no fault here.
Bias and predetermination Mr X said the Council was not impartial as it provided answers to the PCN. And its Letter, in asking B for ‘anything that demonstrates there is no significant change in the business’, sought evidence to fit its predetermined conclusion. Mr X said such coaching showed bias as the Council was defending B’s position rather than gathering evidence to decide if there had been a significant change in use of the Site.
In responding to us, the Council said, before serving the PCN and writing the Letter, it considered the breach of planning control was immune from enforcement action. The Letter and attached draft complete PCN also followed a meeting with B. The meeting took place as it understood English was not B’s first language and it wanted to ensure B responded to the PCN correctly and fully. The Council also said B had consistently insisted their business activities on the Site had not changed significantly since 2002. So, the Letter had asked B for ‘anything that demonstrates there is no significant change in the business’ to support their stated position.
I recognise why Mr X would view the Letter and accompanying copy PCN as showing bias and predetermination. However, the Council had, before serving the PCN reached the view that use of the Site for business purposes was immune from enforcement action. It had also shared that view with residents (see paragraph 13). But, recognising the strength of residents’ concerns, the Council effectively challenged its own decision by taking further steps in the Investigation. It both asked residents to keep diary logs and served the PCN on B. In the circumstances here, on balance, I did not find the Council at fault in sending the Letter with the draft complete PCN. However, the Council may wish to keep in mind how interested parties may perceive such actions when carrying out future enforcement investigations. And, if language is an issue in an investigation, the Council may wish to consider its arrangements for ensuring people are signposted to appropriate support when completing forms and notices.
Evidence and the planning contravention notice Mr X questioned the quality of the evidence used by the Council in reaching its enforcement decision. He said the Council relied on one invoice from 2015 and failed to follow up the Letter asking for more information about the scale of B’s business. Mr X also said the Council ignored residents’ information about the size of B’s commercial vehicles. And, when residents and B provided inconsistent information, the Council accepted what B said without seeking supporting evidence.
In responding to us, the Council said it had chased for information about the scale of B’s business. It later decided further chasing the matter was not proportionate as other evidence pointed to business use since 2002 without any expansion or material change to that use in the last 10 years. The 2015 invoice showed a delivery consistent with the 2007 van size claimed by B. It had investigated the differing views about the size of B’s commercial vehicles. It accepted the Driver and Vehicle Licensing Agency (DVLA) information described B’s 2007 vehicle as double axle when B claimed it was triple axle. It had explored this with the company that supplied the 2007 vehicle. The company said it had significantly altered and adapted the vehicle, including its chassis length. It appeared the DVLA record might reflect the original vehicle before its adaption. The Council said it also sought other evidence about the vehicle size, for example, from Internet pictures and the licensor of the land used by the vehicle when away from the Site. The Council said the Investigation was ‘in depth’ and continued a long time given COVID-19 restrictions.
I recognised Mr X found the Investigation inadequate. However, that the Council could have done more and or acted differently does not necessarily mean what it did fell below acceptable administrative standards. Here, the steps taken by the Council are those councils would be expected to take to investigate a change of planning use (see paragraphs 11 and 12, and then 13 and 14). It was for the Council to decide when it had enough information to reach a balanced view about whether, and when, there had been a breach of planning control. The Report provided evidence the Council took account of all the information it gathered during the Investigation. It was for the Council to then assess, balance and weigh that information to reach its enforcement decision. Overall, having considered how the Council approached the Investigation and its case assessment set out in the Report, I saw no evidence of fault in its decision making.
Final decision
I completed my investigation finding no fault in how the Council reached its planning enforcement decision.
Investigator's decision on behalf of the Ombudsman