Summary: Y complained about the Council’s response to their report of a planning control breach. They say there were delays by the Council and a failure to properly investigate the report. We have not found fault by the Council in the way it made its decision. We have found fault, causing injustice, regarding its delays and failure to complete the investigation in accordance with its enforcement policy. The Council has agreed to remedy this by apologising and making a payment to Y to reflect their upset, time and trouble and a service improvement.

The complaint

1. The complainant, who I am calling Y, complains about the Council’s response to their report of a planning control breach at a neighbouring property. They say:

• They complained to the Council in 2021 about a development to a part of a neighbouring property and installation of items without planning permission;
• There were delays by the Council and a failure to properly investigate their report; and
• The development invades their privacy.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 Y, made enquiries of the Council and read the information Y and the Council provided about the complaint.
6. I invited Y and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

Planning enforcement policy – the law and guidance

7. 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 planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. (National Planning Policy Framework July 2021, paragraph 59)
8. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all.

The Council’s planning enforcement policy

9. This says:
1. A decision to take enforcement action is discretionary and must be proportionate and expedient;
2. It cannot take action just because there has been a breach where there is limited or no harm to local amenity;
3. It will investigate complaints about possible breaches in the following way:

• Each enquiry will be prioritised as either 1 (high), 2 (medium) or 3 (low) according to the nature of breach and degree of harm caused;
• Research will be carried out;
• After information has been obtained, a site visit will be carried out; and
• The complainant (and if appropriate the alleged offender) will be told the likely course of action within 28 days of the complaint.
4. Where a complaint has been investigated and a breach identified, depending on its severity, the Council may:
• Negotiate a satisfactory solution;
• Seek submission of a retrospective planning application;
• If no application is made and the breach is serious it may decide to take enforcement action; or
• Take no action taken if the harm is considered to be minor.
5. The complainant and alleged offender should be kept informed throughout the process.

What happened

10. I have set out a summary of the key events below. It is not meant to show everything that happened.

Investigation of Y’s report - April 2021 to December 2021

11. In April 2021, Y reported a planning control breach regarding the development of part of a neighbouring property to the Council’s planning enforcement team.
12. A planning enforcement officer contacted Y for more details about their complaint, including how long the development had been there.
13. The officer obtained information from the alleged offender (the neighbour) about the development. They contacted Y for an update on the current situation.
14. Y heard nothing further about their complaint. They asked the Council for an update in September. They did not receive any substantive reply.
15. The Council’s records say the enforcement officer made a site visit in November but could not obtain access.

Y’s contact with the Council - January 2022 to May 2022

16. Y chased the Council for an update in January, February and March 2022. They did not receive a response.
17. On 28 March Y complained to the Council about its lack of action.
18. The same day the enforcement officer wrote to Y and said:

• They apologised for the delay in replying to Y’s emails;
• They had investigated the issue. There was evidence the use of the area complained about had been ongoing for several years and, based on satellite imagery, at least since May 2019 (sic);
• They had written to the owner about the activity. The Council could not take enforcement action regarding the development as this was outside of its control; and
• The installation of other items did not require planning permission.

19. The Council closed the case on 12 April. It recorded the breach type as priority 3 - development without planning permission.

The Council’s response to Y’s complaint

20. In April the Council provided its stage one response to Y. It said:

• A decision regarding enforcement action was discretionary and action had to be proportionate and expedient;
• It apologised if Y had not received an acknowledgement of their report. This should have been sent automatically;
• This was a priority 3 complaint which was of the lowest order. It accepted there was a delay in reaching a conclusion, but this was not unreasonable given the other work the enforcement officer had to complete within the same time; and
• It would not be taking enforcement action

21. Y was not satisfied with this reply. In May the Council provided its stage two response. It said:

• It was clear from the satellite imagery the development had been present since at least April 2018;
• It was likely planning permission was needed for the development but as four years had now passed it was immune from enforcement action; and
• The recent installation of other items may also need planning permission but these on their own would not warrant enforcement action as it would not be proportionate or expedient.

My findings – was their fault by the Council causing injustice?

The decision not to take enforcement action

22. It is not our role to decide whether the Council’s decision not to take any enforcement action in response to Y’s complaint was right or wrong. We can only consider whether there was fault in the way it made its decision.
23. The Council obtained relevant information about Y’s complaint. The satellite imagery confirmed the development was present by 2018. Other information suggested it had been present from 2015 and for a number of years before 2021. The Council had also been provided with information about the more recent installation of other items in the area.
24. My view is the Council properly considered the information obtained about the development, how long it had been present and the installation of items. It reviewed the enforcement officer’s investigation before confirming and explaining its decision in May 2022. I have not found fault in the way it made this decision.

The time taken to complete the investigation process

25. The Council’s policy says it will respond to priority 3 complaints and tell the complainant the likely course of action within 28 days of the complaint.
26. It also says it will keep the complainant informed throughout the whole process.
27. But here, the Council took almost a year to tell Y its decision on their complaint. It failed to keep them updated and did not respond to their requests for an update. It did not complete its investigation in accordance with the timescales in its policy, it did not complete a site visit and failed to communicate properly with Y. I consider this was fault by the Council.
28. A decision within 28 days of Y’s report, in accordance with its policy, would have been within a four-year period from 2018. The Council may, at that time, have considered making further enquiries before reaching a conclusion. I cannot say whether this would have made any difference to the decision not to take enforcement action. But I consider the delay caused Y uncertainty about the outcome of their complaint.
29. I also consider the delays and communication failures caused Y time and trouble chasing for updates.

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Agreed action

30. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:

• apologise to Y for its delays and communication failures; and
• pay Y £250 to reflect the upset, time and trouble these delays and communication failures caused them. This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies;

31. Within three months from the date of our final decision the Council should:

• issue a reminder to its planning enforcement officers of the procedures and timescales in its planning enforcement policy for the investigation of reports of planning control breaches; and
• review its process for monitoring the progress of investigation of reports of planning control breaches and their completion within the required timescales.

32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have found fault by the Council causing injustice. I have completed my investigation on the basis the above action is a suitable way to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman