Summary: Mr X complains the Council failed to take enforcement action in respect of a neighbouring property. The Council properly investigated the reported breaches of planning control and then used its professional judgement to decide it would not take formal action. There is fault in how it communicated with Mr X and it should apologise.

The complaint

1. Mr X complains the Council has failed to take enforcement action in respect of a neighbouring property.
2. Mr X says this has negatively impacted on his residential amenity.

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What I have and have not investigated

3. My investigation is concerned with enforcement matters from May 2022 onwards. We have decided the earlier enforcement issues were addressed by the approval of a retrospective planning application in 2021. We have decided there is no basis to exercise discretion to now investigation these earlier enforcement issues.

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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 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

8. Mr X first complained to the Council about the neighbouring property in September 2021. The Council investigated his complaint about the neighbour running a business from the property and determined there was no evidence of a breach of planning control. The Council closed the enforcement case in November 2021 but it failed to notify Mr X of the outcome.
9. In April 2022, Mr X contacted the Council again and made a formal complaint. He again raised the issue of the property being used for business purposes as well as issues about a recent planning application and health safety issues.
10. The Council responded on 12 May. It apologised for failures in communication including the failure to notify Mr X of the outcome of the previous enforcement investigation. It found no fault in respect of the recent planning application but did identify new issues it considered were worthy of investigation. It said there could be some deviation in respect of the height and pitch of the new shed as well as issues around its staining. It advised Mr X to contact its Environmental Health department in respect of disturbance and noise issues. It also requested information about what dangerous substances Mr X claimed were being stored at the premises.
11. Officers visited the site on 19 May 2022 and measured the building. It found the building was slightly larger than the approved plans at 5.3 m x 3.3m when the plans said it should be 5m x 3m. The site visit notes show the officer spoke to Mr X’s neighbour who said he was waiting for the wood to “dry out” before completing the staining. The Council wrote to the neighbour saying he should complete the staining within one month. A further site visit in July confirmed the staining had been completed. I have not seen any evidence to indicate the Council contacted Mr X with the outcome of these issues.
12. Mr X made a further complaint in September 2022. He again mentioned the neighbouring property was being used as commercial premises. He raised issues with parking, storage of materials, not using the shed for domestic reasons and that the gates were opened outwards over the highway.
13. Officers visited the site on 7 November and noted no activity taking place. The notes say the gates were closed and locked but the hinges indicated they could open in both directions. It noted two small trailers parked within the site along with a few wooden pallets and used timber visible. The shed was locked and so could not be inspected.
14. The Council wrote to Mr X on 8 November saying it was investigating his complaint about the gates opening outwards and the shed being used for business purposes.
15. The Council carried out a further site visit on 12 January 2023. It noted one trailer present and less pallets at the property. It says the gates and shed were locked. Officers waited and observed for 30 minutes but saw no activity.
16. Officer visited again on 2 February. At this visit the gates were open but folded inwards and not over the highway. The were able to look into the shed and saw some personal items. The notes say it was clearly not being used for business purposes. Officers noted a small wood burner with a chimney had been fitted.
17. The Council wrote to Mr X on 3 March 2012. It explained it had visited the site a number of times and found no evidence to support the allegation that the gates were being opened over the highway and so did not consider there was any breach of condition. It explained it had inspected the shed and there is no evidence to support the allegation it is being used in connection with trade or business purpose. It told Mr X the chimney was too high but did not consider it was expedient to take further action. It said the case was now closed.

Analysis

18. Mr X is unhappy about the activities at the neighbouring property. He says it affects his residential amenity as the neighbour is operating a business from the property.
19. The information provided shows the Council has investigated all the issues Mr X raised. As explained above, my investigation is concerned with the actions from May 2022 onwards. This is when the Council identified new issues to investigate. I have seen evidence of site visits which included measuring the building, inspecting the building to see what was inside and observing activity at the property.
20. The Council gathered the evidence and decided either there was no breach of planning control or it was not expedient to take further action. I asked the Council to provide details of all communications from Mr X complaining about the neighbouring property. The information provided by the Council did not include any diary sheets or photographs from Mr X. I appreciate Mr X is unhappy with the Council’s decisions but I am satisfied it carried out appropriate investigations into the alleged breaches and then used its professional judgement to determine that no formal action would be taken. I have not found any fault in the action taken by the Council to investigate Mr X’s concerns and so there is no basis for me to criticise the decisions reached.
21. However, I could not find any evidence to show that it notified Mr X of its decision regarding the size of the shed. The site visit notes show that it measured slightly more than the approved plans. As it did not mention the size of the shed in the letter it subsequently sent to the neighbour about the requirement to stain the shed, I take the view on balance, that it did not consider it expedient to pursue this further. However, it should have been clear about its decision and should have communicated it to Mr X. The failure to do this is fault and an appropriate remedy is recommended below.
22. When I spoke to Mr X about his complaint, he told me there had been fires at the neighbouring property on a weekly basis and complaints had been made. The information provided by the Council in response to my enquiries stated no complaints had been made by Mr X. It provided evidence to show another neighbour complained about smoke in October 2022 but as they did not provide any further evidence, the case was closed in November 2022. I have not seen any evidence to suggest fault in respect of how the Council dealt with complaints about fires and smoke.

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Agreed action

23. To remedy the injustice caused by the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Mr X; and
• Review its procedures to ensure that decisions on enforcement matters are properly recorded and communicated.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman