Summary: Mr X complained the Council failed to remove stacked shipping containers near to his home. The Council was at fault for not taking the enforcement action it said it would. The Council will pay Mr X £300 for the avoidable time and trouble caused by having to complain and chase it for the enforcement action.

The complaint

1. Mr X complains the Council has failed to remove stacked shipping containers near his home since 2018. This was even after in September 2019 the Planning Inspectorate said that it should.
2. Mr X says the containers attract vermin to the area that he lives in. He also says the Council’s failings to remove the unsightly containers caused him stress and avoidable time and trouble in chasing the Council to take the agreed enforcement action.
3. Mr X wants the Council to remove the shipping containers as it agreed to do in 2019.

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What I have investigated

4. I have considered Mr X’s complaint about the Council’s actions following the Planning Inspectorate’s decision from September 2019. I have not investigated the earlier part of Mr X’s complaint and I explain my reasons at the end of this decision.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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. 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)
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Mr X's comments; and
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mr X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Planning enforcement

10. Planning permission is required to develop land (including material changes of use). Planning permission may be granted subject to conditions about the development and use of land.
11. We expect councils to carry out a proper investigation into complaints about breaches of planning conditions and consider the range of enforcement options open to them.
12. Where there is a breach of a planning condition, councils may take various types of enforcement action, including issuing an enforcement notice.
13. An enforcement notice should specify the alleged breach, and what steps are required to be taken to remedy the breach. There is a right of appeal to the Planning Inspector against an enforcement notice. It is an offence not to comply with an enforcement notice, once the period for compliance has elapsed, and if there is no outstanding appeal.
14. Even if a council decides not to take or continue with the enforcement action, we would expect it to record its reasons for doing so and explain its decision to any complainants.

Planning Inspectorate

15. The Planning Inspector acts for and on behalf of the responsible Government minister. The Planning Inspector considers appeals about delay in deciding an application for planning permission and a decision to refuse planning permission. The body also considers appeals about conditions placed on planning permission and a planning enforcement notice.

What happened

16. In August 2018 the Council served an enforcement notice to owners of two stacked containers on a property near Mr X’s home.
17. In January 2019 the Council told Mr X the owners of the containers appealed its enforcement notice to the Planning Inspectorate and asked for planning permission to keep the two stacked containers.
18. The appeal was unsuccessful, and the Planning Inspectorate told the owners to remove the stacked containers by mid-September 2019.
19. In early October 2019 the Council told Mr X that it was consulting with a contractor to check what it would cost the Council to remove the containers. The Council explained to Mr X that it could prosecute the container owners, but this would take six months, which is why the Council wanted to act directly.
20. In February 2020 Mr X emailed the Council and told it the stacked containers moved in the strong wind, and he considered them not to be safe. The following day the Council told Mr X that it was waiting for a temporary road closure approval, and then it would remove the stacked containers, but this did not happen.
21. In March 2021 Mr X complained to the Council about its lack of enforcement action.
22. In February 2021 the Council responded to Mr X’s complaint and:
• apologised for the poor service Mr X received and for the lack of updates about the progress of the enforcement;
• told Mr X the Council’s enforcement was disrupted by the COVID-19 pandemic;
• confirmed it still planned to remove the containers as soon as a road closure was approved; and
• said it would contact Mr X once it knew the timescales for the removal of the stacked containers.
23. In May 2021 Mr X complained to the Ombudsman about the Council’s lack of enforcement action.

The Council’s response to our enquiries

24. In 2018 the Council issued a formal Enforcement Notice that told the owner of the containers to remove the stacked containers. The owner appealed against the Enforcement Notice. The appeal concluded in June and the owner was supposed to remove the containers by September, however the Council said it seems it did not follow this up. It said this may have happened because of staff changes that happened at the time but accepted this case management oversight should not have happened.
25. The Council also told us that it spoke to new owners of the containers, as the site was recently sold, and gave them until mid-November 2021 to remove the stacked containers.
26. It apologised for the experience Mr X had. Additionally, it told us that it is part way through carrying out a service improvement plan targeting case management, communication, and the effectiveness of the planning department’s enforcement role.

Our Analysis

27. The Council accepted that a case management oversight took place. We are referring to the lack of follow up after the Council served the Enforcement Notice that was upheld by the Planning Inspectorate in 2019. This is fault.
28. The lack of action prolonged the duration of Mr X’s complaint and meant that he had to spend avoidable time and trouble in chasing this matter up.
29. Additionally, because of the delay the enforcement action drifted into the period of the COVID-19 pandemic which caused even further delays. While we understand the Council’s enforcement limits between March 2020 and July 2020, it is less likely this would be a consideration had the Council acted on its Enforcement Notice in September 2019.
30. At the time of writing this decision the containers remain in place and the Council has not confirmed when it would remove them.

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Agreed action

31. Within one month of my final decision the Council will:
• pay Mr X £300 to recognise the avoidable time and trouble caused by having to chase the Council for the enforcement action and complain to the Council and the Ombudsman;
• tell us and the complainant what the timeline for the removal of the stacked containers is; and
• provide us details of the service improvement plan the Council said it was carrying out and its anticipated completion date.

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Final decision

32. I completed my investigation and uphold the complaint. The Council failed to take the enforcement action it said it would, even after the Planning Inspectorate upheld its enforcement decision in 2019. The Council agreed to pay Mr X £300 for the avoidable time and trouble caused by having to complain and chase it for the enforcement action.

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Parts of the complaint that I did not investigate

33. I did not investigate Mr X’s complaint about the Council’s actions before September 2019. This is because I consider this part of his complaint to be late. We expect a complainant to contact the Ombudsman within twelve months of becoming aware of a problem. I consider there are no good reasons to extend my investigation further back in time than I already have.

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Investigator's decision on behalf of the Ombudsman