Summary: Mrs B complains about how long the Council has taken to investigate her planning enforcement complaint about her neighbour’s business and its refusal to give her updates on its progress. The Council was at fault for the delay in progress and its communication approach, which has meant Mrs B received no updates on progress or responses to her complaints about the Council’s handling. The Council has agreed to apologise and make a payment to Mrs B for the avoidable delay and lack of contact. The Council will also review its communication approach for planning enforcement matters and its complaints procedure.

The complaint

1. The complainant, whom I have called Mrs B, complains about how long it has taken the Council to investigate a planning enforcement complaint about her neighbour’s business. Mrs B says the Council has been dealing with this matter for more than a year and has refused to give her updates on its progress. The Council has also refused to deal with Mrs B’s complaint about its service while the enforcement case is ongoing. Mrs B says she continues to suffer with the disturbance caused by her neighbours, which she feels the Council should have addressed by now.

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What I have investigated

2. I have investigated the Council’s handling of Mrs B’s planning enforcement and nuisance complaints up to the point when she escalated her complaint to the Ombudsman.
3. Since then, the Council has completed its investigation into Mrs B’s planning enforcement complaint and has decided the close its case, without taking any formal enforcement action. I have not investigated this issue because it occurred after Mrs B brought her complaint to us. The Council should be given the opportunity to consider any complaints Mrs B has about its decision before she can ask us to investigate.

The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. If we are satisfied with a council’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)

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How I considered this complaint

8. I have spoken to Mrs B and considered the information she has provided in support of her complaint.
9. I have considered the information the Council has provided in response to my enquiries.
10. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning Enforcement

11. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

12. There are time limits within which councils can take enforcement action. Development becomes immune of enforcement if no action is taken:

• within four years of substantial completion, where there has been a breach of planning control consisting in the carrying out of planning permission of operational development (building, engineering, mining, or other operations) in, on, over or under land; or,
• within four years, where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse; or,
• within ten years, for any other breach of planning control. (Town and Country Planning Act 1990, section 171b)

13. The Council publishes online information about its planning enforcement process to help residents understand the types of action the Council can take. The Council explains on its website that General Data Protection Regulations prevent it from providing updates or information about its investigations to those reporting issues while the matter is ongoing. The Council says it will provide a summary of its findings to the person reporting the issue when it has completed its investigation.
14. The Council’s website also contains a flowchart setting out the steps it takes in planning enforcement cases and approximate timescales for each stage. The Council’s flowchart says it usually takes nine weeks for it to conclude cases where a planning breach is not identified. The Council’s flowchart indicates cases involving further investigation and formal enforcement action can take up approximately 30 weeks to conclude. The Council stresses the timescales published are approximate and some cases may take longer to investigate and conclude.

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. Mrs B’s neighbours run a mobile catering business from their home, which includes parking and working on catering trailers in the drive at the front of their property. The Council has previously explained to Mrs B that it cannot take enforcement action as the business has been in operation from her neighbour’s property for more than ten years. In 2017, the Council invited Mrs B to contact it if the volume of business intensified at her neighbour’s property.
17. Mrs B contacted the Council at the beginning of August 2018 to report her neighbour’s business activity at their home had intensified. She reported concerns about the noise, smells and volume of vehicles her neighbours were parking and working on in their driveway.
18. The Council acknowledged receipt of Mrs B’s report two days later and explained it had opened a file to investigate her concerns. Mrs B was also in contact with the Council’s Environmental Health Team to report concerns about the noise, smoke and odour nuisances caused by neighbours.
19. Mrs B sent emails to the Council every two to three weeks to provide further evidence to support her concerns during the rest of 2018, which the Council acknowledged. Mrs B’s local councillor also contacted the Council about the issue and to express their concern at the Council’s apparent inaction. On 10 December 2018, Mrs B wrote to the Council to complain that she was unhappy with the length of time it was taking to investigate her concerns.
20. On 12 December 2018, the Council responded to Mrs B and reiterated the content of its acknowledgement in August 2018. The Council explained it was unable to provide updates on the progress of its investigation into Mrs B’s concerns about her neighbour’s business and that the timescales in its flowchart were subject to change based on the complexity of a case. The Council also told Mrs B it was unable to consider and respond to any complaints she had about its service while the planning enforcement investigation was ongoing.
21. Mrs B continued to send the Council information she considered relevant to its investigation. On 22 February 2019, Mrs B wrote to the Council to express concern that her neighbour’s business activity was due to increase as the season started the following month until October, with additional bookings for events such as Bonfire Night, Christmas. Mrs B questioned how a business operating for seven to eight months of the year could be considered seasonal and asked the Council to take some action given the impact of her neighbour’s business activity on her, her family and other residents living nearby.
22. The Council responded to Mrs B on 6 March 2019. It explained it would hold its investigation open but wait for further information from Mrs B as she had indicated her neighbour’s business activity decreased during the winter months. The Council invited Mrs B to send it fortnightly diary logs of activities she considered showed her neighbour’s business had intensified.
23. Mrs B continued to send the Council fortnightly diary logs of her neighbour’s business activity during 2019. At the end of July 2019, Mrs B made a further stage one complaint to the Council about the length of time it was taking to investigate her concerns. She felt it was unacceptable the Council had not taken any action or concluded its investigation for over a year. The Council responded and explained it could not investigate Mrs B’s stage one complaint. The Council said it was not possible to determine if maladministration had occurred when the planning enforcement investigation had not been concluded. The Council reiterated its policy not to disclose information about the progress of planning enforcement investigations to comply with the General Data Protection Regulations (GDPR).
24. Mrs B approached the Ombudsman shortly after the Council’s response as she remained dissatisfied.
25. The Council continued its investigation into Mrs B’s neighbours and wrote to Mrs B at the end of February 2020. The Council said it had decided not to take further action as it did not consider the neighbour’s business activity from their property had intensified to demonstrate a material change from residential to mixed residential and commercial use.

Analysis

26. The Council has provided me with a chronology of activity in Mrs B’s case. It appears from this chronology the Council did not take any tangible steps to progress its investigation from 6 August 2018, when Mrs B first reported her concerns, to 12 December 2018. The only action the Council seems to have taken during these five months was to acknowledge receipt of Mrs B’s emails which provided further information and expressed her concern at the lack of progress. This is fault causing understandable frustration to Mrs B as it is not in line with the Council’s procedure. The Council has since explained that between August and December 2018, it undertook planning history checks and considered information from third parties and the Environmental Health Team.
27. The Council made two monitoring visits during winter 2018. It was unclear why these were necessary if the Council had already decided to keep its investigation open but not act until Mrs B confirmed the neighbour’s work season had restarted. The Council appears to have only started progressing its investigation in earnest from mid-April 2019. Its records show the Council started to make regular visits to the site at various times of day during the week from this point. The Council also made enquiries with Mrs B’s neighbours. These actions are in line with the Council’s procedures and the type of activity I would have expected to see from the outset.
28. I am not persuaded the Council was justified in holding off its investigation from August 2018 to April 2019. Based on the information Mrs B provided, her neighbour’s business was still operating at the time of her complaint to the Council in August 2018 and continued to do so on a weekly basis for at least a further month. There is no reason why the Council could not have made a start on its investigation at this time. I consider the Council unnecessarily delayed its progression of its investigation which is fault that caused avoidable frustration and inconvenience to Mrs B and her family.
29. Mrs B and her local councillor repeatedly expressed concerns about the lack of progress in the Council’s investigation. The Council’s default response was to state GDPR prevented it from disclosing information about its progress to Mrs B. While I accept the Council has a duty of confidentiality to the individuals reported, I am not satisfied this prevented it from updating Mrs B on its progress in a way that did not compromise the duty of confidentiality it owed to her neighbours.
30. The Council’s approach to contact during planning enforcement investigations appears incongruous with other areas of its service. In this case, the difference would have been apparent to Mrs B as she also reported concerns about her neighbours to the Council’s Environmental Health Team. This Team, by comparison, kept Mrs B regularly updated on its progress with the noise, smoke and odour nuisance complaints she made about her neighbours. It appears to have done this without compromising its duty of the confidentiality to Mrs B’s neighbours. While Mrs B may have been disappointed with this Team’s decision that her complaints did not meet the threshold for a statutory nuisance, she did receive updates on the team’s progress with her complaints. This gave her some confidence that her concerns were being acted upon.
31. Mrs B understandably did not have the same confidence in the progress of her planning enforcement complaint. The Council repeatedly declined to deal with Mrs B’s legitimate complaints about its lack of progress. The Council’s complaints procedure does not state it is unable to deal with complaints about the Planning Enforcement Team’s service while investigations are ongoing. The Council’s approach in Mrs B’s case prevented her from voicing legitimate concerns about the ongoing delay in progressing her enforcement complaint. This is fault and caused Mrs B avoidable frustration.
32. There is no way of knowing for certain if the Council could have concluded Mrs B’s case any sooner. There were however periods of inactivity in the progression of the Council’s investigation which prolonged the process and caused inconvenience to Mrs B and her family. Mrs B was also put to time and trouble in compiling fortnightly diary logs of her neighbour’s activity for longer than necessary.

Council’s comments to the draft decision

33. The Council accepts it could have provided Mrs B with some form of update on its progress with the investigation, without breaching the confidentiality it owed to her neighbours. The Council has explained it took account of the previous concerns Mrs B had raised about her neighbour’s business and felt it would be helpful to keep matters open until it could investigate the specific issue of business intensification. While I do not doubt the Council did this with the best of intentions, the lack of explanation or clarification for its approach to Mrs B during this time led to her understandable feelings that her concerns were being ignored.
34. The Council says it has sought to make some changes to its approach to planning enforcement complaints. The Council has explained it now tries to provide further information about the planning enforcement investigation process when asked for updates and is able to do so without breaching the confidentiality. The agreed action below has been amended slightly from my draft decision recommendation to reflect this change in the Council’s approach.

Agreed action

35. Within one month of my final decision, the Council has agreed to:

• apologise to Mrs B for the delay in progressing her planning enforcement complaint; and,
• pay Mrs B £200 for the distress, time and trouble caused by the Council’s delay and lack of communication during its planning enforcement investigation.

36. Within three months of my final decision, the Council has agreed to:

• review the consistency in communication on planning enforcement and environmental health complaints and how it complies with the General Data Protection Regulations; and,
• review its handling of Mrs B’s complaints about the Planning Enforcement team’s service and revise its complaints procedure if necessary.

37. The Council should provide the Ombudsman with evidence to show the above recommendations have been completed.

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Final decision

38. I have completed my investigation and found fault with the Council. This fault caused Mrs B injustice and the Council has agreed to take action to remedy that injustice and review its processes.

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Parts of the complaint that I did not investigate

39. Mrs B is understandably unhappy with the Council’s decision to close her planning enforcement complaint. Mrs B should make any complaint about this to the Council first as it should be given the opportunity to consider her concerns before the Ombudsman can investigate.

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Investigator's decision on behalf of the Ombudsman