The Ombudsman's final decision
Summary: There was delay by the Council when investigating and responding to complaints about unauthorised development on 6 plots of land. The Council has already carried a review of its planning enforcement service, which has produced recommendations for service improvements. Deciding outstanding applications for the site, as well as providing information to the complainant on the other enforcement investigations remedies the injustice, along with a payment towards their uncertainty.
The complaint
The complainant, who I shall call X, complains the Council’s delays in investigating and taking action over use of land for an unauthorised dwelling have meant the applicant has been able to put in an application for lawful use of the caravan.
X says there have been delays and poor communication by the council when dealing with complaints about unauthorised development on 6 plots of land in the green belt.
X says that unauthorised developments have a negative impact on residential amenity, especially traffic on the right of way next to the houses.
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 read the papers put in by X and discussed the complaint with them.
I considered the Council’s comments about the complaint and any supporting documents it provided.
I looked at the Council’s enforcement plan on its website and the final report of the planning services review available on the internet.
X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Key facts X lives in one of a group of 6 houses which have a single track access to a commercial building running through it. X says a nearby field has been divided into plots, on which there is unauthorised development. X explains the traffic for these plots uses the access next to their houses. X says that this is having a significant impact with loss of amenity for themselves and other residents.
As each of the plots has a different owner, the issues have to be considered separately. Although, I appreciate to X, the site as a whole affects them.
Plot 1 - Change of use of land to siting of a caravan for permanent residential use.
X complains about the siting of a mobile home and stable blocks on this piece of land. Since X made the complaint, the Council has recently refused the planning application for the mobile home.
Now the Council has determined the planning application it can now consider whether to take enforcement action over the mobile home and stable blocks.
Plot 2 and Plot 5 Change of use to land by laying a hardstanding The Council has said ‘the hardstanding does not have permission. But, it is not expedient to pursue the breach as the planning officer would have supported the development if a planning application had been received’. The officer opinion was that hardstanding was common to agricultural units and not considered harmful in this context.
Plot 3 Change of use to land by laying a hardstanding The Council has said that during its investigation, the Council received an invalid planning application. This application was validated in August 2022 and residents have been consulted.
Plot 4 Change of Use to Land by laying a hardstanding, siting a caravan and shipping container The Council said that it is currently drafting an enforcement notice to pursue breaches of planning control on this plot.
Plot 6 Siting of a caravan and use of an outbuilding for permanent residential use The Council received two planning applications following its enforcement investigation. The Council refused a planning application for demolition of a building and erection of a bungalow in July 2022.
The Council also received an application for a Certificate of Lawfulness for a residential dwelling and curtilage in April 2022. This Council has not decided this application yet.
The Council has said the applicant has the right to appeal the decision on the planning application within 6 months of the date of the decision. The Council says it is ‘considering the certificate of lawfulness application and until this is determined, no further action on the enforcement investigation can progress’.
My analysis X’s main complaint is about delay by the Council in responding to their complaints about unauthorised development.
Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary, Council’s do not have to take action. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as the carrying out of development without the required planning permission or failing to comply with any condition or limitation subject to which planning permission has been granted. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under s.172 of the Act. It is for the planning authority to decide whether it is expedient to take action.
For plots 2 and 5, the Council has decided not to take enforcement action. This is a decision the Council is entitled to take and I can find no evidence of fault in its decision making. The Council has decided to take enforcement action on plot 4. Again, I can find no fault leading up to this decision and so there is no evidence of fault.
The Council has only just refused the planning application on plot 1 so I accept the Council will need further time to decide its next steps. And the planning application on plot 3 has just been validated so the Council will need to consider this through its normal planning process.
This leaves plot 6. This is the plot that X has said they have the most concerns about. X said that they complained about the owners living on land without permission in 2019. X says the Council’s delay has led to the applicants being able to put in a lawful use application after 4 years.
The Council says it registered a complaint in August 2020. The Council visited in March 2021 but could not arrange a site visit until COVID-19 restrictions were lifted in May 2021. I can see the Council made several attempts to make a site visit but the owner did not reply. The Council served a Planning Contravention Notice in February 2022. In April 2022 the certificate of lawfulness was submitted by the applicant.
The Council has explained that ‘due to the significantly reduced staff resources this has severely impacted the function of the service, which has contributed to significantly higher caseloads being carried by remaining officers. Every effort is being made to prioritise the site in line with the time period available to the Council to take action. To be clear, in all cases, the time period for any enforcement immunity is 10 years, as all plots concern the Change of Use of land. The 10 year period runs from the date the breach of planning control first started. While this does not mean the Council will stall in the safety of this time period, we confirm our clear intention is to resolve the identified breach of planning control promptly. The Council is actively recruiting for the relevant planning officer posts, both of which have a planning enforcement function. Meanwhile the Council is also looking at alternative agency cover for planners with specific enforcement experience to help with the enforcement service and wider team’.
There is evidence of delay by the Council while investigating X’s complaints. especially in relation to plot 4. The Council has explained that this delay in down to staff shortages. I have also taken into account there was a planning review carried out by a consultant on the Council’s planning department. This review included planning enforcement and makes many recommendations, including a new enforcement charter so I do not intend to include recommendations for service improvements the Council’s consultants have already identified.
In order to remedy the injustice to X from this delay I consider the Council should ensure that it remedies the injustice by carrying out the recommended action below.
Agreed action
The Council should ensure the planning review and any action plan resulting from it should go to the relevant committee for monitoring of progress to ensure democratic oversight within 3 months of the date of the decision on this complaint.
The Council should write to X to apologise for the delay in enforcement within two months of the date of the decision on this complaint.
The Council should pay £300 towards X’s distress and uncertainty arising from the delay.
The Council should write to X within two months of the date of the decision on this complaint to update them with: The decision on the lawful use application or expected date it will be determined; If the lawful use application is refused, details of how the Council will prioritise any enforcement action.
A decision on whether enforcement action will be undertaken on plots 1 and 4; Information on how the Council will provide better and more timely information to X;
Final decision
I have completed my investigation of this complaint. This complaint is upheld as there was delay by the Council. The actions identified above, and the recommendations in the planning review which the Council is already aware of are a satisfactory remedy to this complaint.
Investigator's decision on behalf of the Ombudsman