The Ombudsman's final decision
Summary: We will not investigate this complaint about the way the Council dealt with breaches of planning control. And about its communications with the complainant. We do not consider that an investigation will lead to a different outcome.
The complaint
Mr X complains the Council: provided contradictory information on a planning enforcement case failed to take enforcement action against a breach of planning control; and failed to communicate to an acceptable standard, with delayed and often impolite responses.
The Ombudsman’s role and powers
We investigate 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 continue an investigation if we decide further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) Pv20
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council was aware of a breach of planning control at a property near Mr X’s home. This includes the unauthorised use of land as a sawmill. Mr X says he suffers from noise from the sawmill.
In July, the Council advised Mr X that the owner had agreed to stop using the site as a sawmill and return the land to its former state by mid-December.
In the following months Mr X asked the Council to provide a timetable for action to be taken to comply with the arrangement for restoration of the site by mid-December.
The planning officer confirmed there was no timetable for action. The agreement with the owner was non-binding. However, should the use as a sawmill not cease and the land not be restored by December, it would consider issuing Enforcement Notices, which will include binding dates for action on the site.
Mr X is not satisfied with the Council’s responses. He says a failure to ensure the site owner is taking steps to ensure the land is restored to its former state by December is negligent.
There is no requirement in the Council’s planning enforcement process for the Council to provide a person notifying it of a breach of planning control with regular updates as to progress. It states it will usually advise the person of the result of an investigation and the action taken by the Council.
Mr X contacted the Council just before the informal deadline in December for an update. The Council confirmed it had extended the deadline to March as the owner has alternative premises for the sawmill. It considers the extra three months is enough time to relocate the operation to the new site and restore the land.
I understand Mr X is not satisfied with the action taken. Councils can take enforcement action if they find planning rules have been breached. However, they should not take enforcement action just because there has been a breach of planning control.
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.
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.
In this case the owner made a planning application and also applied for a Certificate of Lawfulness to resolve the breaches on the site. These were both refused. The Council then decided to work informally with the site owner.
The Ombudsman is not an appeal body against councils’ planning or enforcement decisions. Instead, we consider if there was fault with how its decisions were made. I understand Mr X disagrees with the way the Council has dealt with the breaches of planning control. But the Council was entitled to apply its professional judgement here. There is not enough evidence of fault in the Council’s decision-making process to justify an investigation.
Mr X complains the Council provided contradictory information and that communication with the enforcement officer was delayed and impolite. From the information I have seen it appears the Council has responded to Mr X’s enquiries without considerable delay. And while some of the emails from the enforcement officer are blunt, I do not consider an investigation into these issues alone are an effective use of public resources.
Final decision
We will not investigate Mr X’s complaint because we do not consider that further investigation will lead to a different outcome.
Investigator's decision on behalf of the Ombudsman