The Ombudsman's final decision
Summary: Mr X complained the Council failed to take planning enforcement action against the change of use of his neighbour’s land. We ended our investigation as it was unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.
The complaint
Mr X complained the Council has failed to take enforcement action against his neighbour, who he alleges is running an unlawful waste storage and processing site on land next to his home.
Mr X said his amenity is affected from noise, burning waste and rodents that live on the site.
The Ombudsman’s role and powers
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: there is not enough evidence of fault to justify investigating, or we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I read the complaint and discussed it with Mr X. I considered the evidence Mr X provided. I read the Council’s response to the complaint.
I gave Mr X and the Council an opportunity to comment on a draft of this decision.
What I found
Planning Enforcement law and guidance Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
Councils have a range of options for formal planning enforcement action available to them, including: Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach; Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it; Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public; Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development; Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
However, 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.
What happened Mr X complained his neighbour had changed the use of their home and garden to run a scrap metal business.
The Council investigated his concerns and served an enforcement notice. The neighbour registered an appeal against the enforcement notice, then withdrew it.
The Council visited the site again but did not find evidence of a breach of planning control, so took no further action to enforce the notice. Mr X provided photos and videos of his neighbour parking a vehicle laden with scrap metal on the street outside their home, and of waste being carried on and off the site.
The Council said its officers recently visited the site but found no evidence to justify further action. The Council said it will continue to monitor the situation and will assess the evidence that it gathers or receives.
My findings
We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation that we have already started.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
I should not continue my investigation and my reasons are as follows: Whether a change of use has occurred is a matter of fact and degree for a planning authority (not the Ombudsman) to decide.
The Council has considered Mr X’s allegations in relation to its powers and decided there is not sufficient evidence to justify further action. In the absence of some fault in the decision making process, this is a decision it is entitled to make.
The matter is ongoing, and we do not usually investigate until enforcement action has run its course, and the time limit for any right of appeal has expired.
Final decision
I ended my investigation, as it was unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.
Investigator's decision on behalf of the Ombudsman