Summary: Mr X complained the Council delayed addressing his planning enforcement complaint, causing distress. We found the Council at fault. We recommended it provides Mr X with an apology, pays £300 for distress, pays £100 for time and trouble; updates Mr X on its investigation and acts to prevent recurrence.

The complaint

1. Mr X complains about the Council’s lack of action following his planning enforcement complaint. He says an unauthorised takeaway is increasing traffic and anti social behaviour near his place of work.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
6. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Planning enforcement

7. Where a council identifies a breach of planning control it may decide to take action to address the breach. However, planning enforcement action is discretionary. It is for the planning authority to decide whether it is expedient to take action: a council does not have to carry out enforcement action simply because the public wants or expects it to.

Council policy

8. The Council published a local enforcement plan in 2021.
9. It will investigate all reports about alleged breaches of planning control to determine whether a breach has as a matter of fact occurred, and if it has, will then determine the most appropriate course of action.
10. Where it finds a breach it will undertake an assessment of expediency to determine which next course of action should be taken. ‘Expediency’ is assessed with reference to national and local planning policies and to any other material considerations.
11. Enforcement action may include:
• The service of a Planning Contravention Notice. This notice requires a site owner to provide information in relation to land or activities on land where a breach of planning control is suspected. This is usually carried out very early in an investigation where further information is required.
• The service of an Enforcement Notice. This notice requires the site owner to take specific steps to remedy the breach of planning control. The Enforcement Notice will specify what action is required to remedy the breach and will give a period for compliance. If site owner does not comply with the notice the Council will consider prosecution.
12. The Council will keep the complainant informed of case progress, any decisions on action, what action this will be, and the likely timescales involved.
13. Where possible it will meet published timescales including undertaking a site visit within 30 working days and either starting legal action or resolving the matter within ten weeks.

What happened

14. On 6 December 2021 Mr X raised a planning enforcement complaint to the Council. This involved completing a form with key details, including the location of the alleged breach. Mr X explained on the form a café had made changes to its frontage and was now operating as a takeaway.
15. Mr X chased the Council in February 2022. In response it asked for the location of the café, which he provided again.
16. In March the Council asked Mr X to complete its online form. Mr X then complained he had already completed the Council’s online complaint form however it did not appear to be acting on this.
17. In April Mr X complained to the Ombudsman about the Council’s failure to act. We asked him to raise a service complaint to the Council in the first instance.
18. In response to enquiries the Council says it started investigating in April 2022. In May it visited the site but found it closed. The Council explains there was some delay as a backlog of cases had built up due to COVID-19 restrictions.
19. In September Mr X contacted the Ombudsman again as he had not heard from the Council.
20. The Council told the Ombudsman Mr X had not raised a service complaint. It said it had carried out a site visit and was due to decide next steps.

21. The Council has provided emails dated September 2022 showing it asked the planning team, highways and transport whether the change in use to a takeaway was acceptable in planning terms. The planning team considered the change of use was not acceptable and would not receive planning permission if requested.
22. The Council provided a stage 1 complaint response to Mr X on 16 November. It said the site did not have planning permission to operate as a takeaway and it was likely to take enforcement action in the near future. It told Mr X where to raise concerns about licensing and said the Anti Social Behaviour team would contact him. The Council said if Mr X was unhappy with its response he could ask for a review.
23. Mr X responded on 26 November that he hoped for a further update soon. He then chased an update on 7 December.
24. On 20 December the Council apologised to Mr X for its delay. It again said it was likely to take enforcement action in the near future.
25. On 23 December 2022 the Council told Mr X it would serve an enforcement notice on the owner and it would take legal action if they did not comply with the notice.
26. On 9 January 2023 Mr X asked the Council when it had served the notice. On 10 January the Ombudsman asked the Council to escalate the complaint to stage 2 and update Mr X.
27. On 20 January the Council wrote to the site owner asking that they cease use as a takeaway and return the frontage to its original condition by 20 February or it would serve an enforcement notice.
28. The Council provided a stage 2 complaint response to Mr X on 23 January. It explained the process undertaken by planning enforcement and referred Mr X to the Ombudsman. The Council did not tell Mr X if or when it had issued a notice or provide any further update.
29. The Council’s chronology shows there were no other substantive actions to progress the case from January 2023 to April 2023.
30. In response to enquiries the Council explained its investigation was slow due to COVID-19 restrictions; the significant pressure related to this created a backlog of work. The investigating officer had periods of absence due to wellbeing and staff were unable to move the case to another officer unless it was a significant breach which took priority.
31. The Council says the investigating officer is currently off sick long term. However, due to this matter being raised through the complaints process and Ombudsman, it will reallocate the case and give a priority to issue a legal notice by the end of the month requiring specific information from the owner in order to move the case forward.

Findings

32. We acknowledge the COVID-19 pandemic impacted council services and caused delays, however this does not excuse the significant delays by the Council in progressing Mr X’s enforcement complaint from December 2021 to April 2023. And the Council did not meet its published timescales. This amounts to fault.
33. The Council did not keep Mr X updated on its investigation in line with its policy. This is fault.
34. The Council’s stage 1 response did not address Mr X’s complaint regarding lack of action. And the stage 2 response did not review the stage 1 response, address the complaint or provide the update requested. This is fault.
35. Because of the Council’s fault Mr X has spent time chasing the Council for updates and suffered uncertainty, he has suffered the impact of the breach for longer causing distress and, he has been put to time and trouble in the complaints process.

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Agreed action

36. To remedy the injustice set out above the Council should carry out the following actions.
37. Within one month:
• Provide Mr X with a written apology for its delay in progressing his enforcement complaint and its poor complaint handling;
• Pay Mr X £300 for distress and uncertainty;
• Pay Mr X £100 for time and trouble;
• Write to Mr X to:
1. explain why it has not served an enforcement notice, despite saying it would do so in December 2022;
2. say when it sent the notice requesting information to the café owner and the deadline for response and;
3. provide any further update on its investigation.
38. Within three months:
• Provide the Ombudsman with an action plan showing how and by when it will address any remaining backlog in planning enforcement complaints.
39. The Council should provide us with evidence it has complied with the above actions.
40. The Council has accepted my recommendaions.

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Final decision

41. I find the Council at fault because it delayed dealing with Mr X’s enforcement complaint. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman