Summary: X complained the Council failed to protect their amenity from the unlawful use of land near their home. X said the use caused significant disturbance, upset and stress. We found fault because there was delay in beginning enforcement action and informing other Council departments. The Council has agreed to pay X a financial sum and make improvements to its policy and practice that might help avoid the fault happening again.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to protect their amenity from the impact of an unlawful use of land near X’s home.
3. X said the use involved large numbers of people visiting the site, and licensed events causing noise, disturbance, and heavy traffic until late in the night.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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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What I have and have not investigated

6. This complaint relates to the actions of the Council as a planning authority.
7. X has made another complaint about two other departments, environmental protection and licensing, which I have investigated separately. However, I will refer to those departments in so far as their roles are relevant to what has happened here.

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How I considered this complaint

8. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including details from the Council’s planning enforcement files, documents from a planning application, including site plans and the case officer’s report. I discussed the case with a planning enforcement officer. I took account of the Council’s planning enforcement plan March 2022, which was in force at the time of the events in this complaint.
9. I have taken account of our guidance on remedies, which is available on our website here. The guidance includes details on how we remedy disturbance and nuisance and what an effective apology letter should contain.
10. I also considered an earlier complaint against the Council, where we found fault in delay. This case is available on our website here.
11. I took account of comments on earlier drafts of this decision.

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What I found

Planning enforcement powers

12. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
13. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
14. This Council has a planning enforcement plan and process on its website. The process shows how the Council responds to allegations, investigates and makes its decisions. The policy does not include time targets for actions or updates to complainants. The section entitled ‘Triage the report’ does not include details of how action will be prioritised.

Planning applications, law and guidance

15. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
16. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
17. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
18. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Environmental health law and functions

19. Councils have statutory power to enforce environmental protection measures in their areas. They can control nuisance caused by pollution, from things like noise, dust, smoke and odour by issuing abatement notices.
20. Environmental health officers may also provide advice to other departments, including advice on planning applications on what the impact a development or land use might have on the environment. They may recommend planning conditions to protect public amenity.

Temporary events licensing

21. Councils may permit temporary events that include ‘licensable’ activities, which include:
• selling or serving alcohol;
• providing entertainment; and
• serving hot food or drink.
22. To qualify for a license, the event must:
• have fewer than 500 people attending; and
• last less than 7 days for a single event, and limited to a total number of events in a single year.
23. Individuals who want to hold such an event need to apply to the Council for a license. The licensing department will consult the Council’s environmental protection service and the police about the proposed event. The Council cannot refuse a license unless these bodies object to it, and only for the following reasons. The event application should not be approved because it could:
• lead to crime and disorder;
• cause a public nuisance;
• threaten public safety; or
• put children at the risk of harm.

What happened

24. The owners of an agricultural building near X’s home began using it for temporary events, which involved alcohol and entertainment. In the summer of 2022 X complained to the Council about the events which lasted late into the nights and caused disturbance by noise, traffic and anti-social behaviour.
25. The complaint was sent to a planning enforcement officer (PEO). I spoke to the officer and the Council provided a chronology of what happened.
26. The Council accepts there was delay in beginning its enforcement investigation, because it took more than 3 months from the date X made their complaint until there was any meaningful action, when the PEO contacted the owners to say planning permission for the change of use of the land was required and the unlawful use must cease.
27. On the day the complaint was made, the PEO noted that the noise disturbance issue should be referred to the Council’s environmental protection team, but this did not happen until 5 months later.
28. The PEO explained that at the time X made their complaint about the unlawful planning use, the department was short-staffed due to a member of the team being off sick and caseloads were high among the remaining officers.
29. The chronology shows that once the planning enforcement action did begin, it was effective and continued without undue delay. The landowner submitted a planning application, which was refused. The reason for refusal followed environmental protection advice, that measures to protect against noise disturbance were inadequate.
30. During the time covered by the chronologies provided by the Council, the landowner had submitted 11 applications for temporary events and 9 went ahead. After planning enforcement began and environmental protection informed about the use of the site and its impact, the events were mostly controlled. One smaller event was allowed and monitored, and the information gathered during that event was used as evidence in later decisions to control the site.
31. The Council’s planning enforcement policy does not include details relating to time targets for actions or prioritising its resources. However, I have read several other enforcement policies that do include these details and it is not unusual for them to require:
• acknowledging the complaint and opening a planning enforcement file within 3 to 5 working days;
• carrying out an initial assessment within 5 working days; and
• carry out an investigation with targets dependent on priority levels between 5 to 28 working days.
32. Many councils have details of priority levels for complaints, and will act more quickly where the harm caused by the alleged breach is greatest, such as:
• severe – unauthorised work to listed buildings, demolition or development in a conservation area or damage to protect trees and the ecological environment;
• high – development already in progress, where enforcement time limits might expire, where serious harm to amenity is caused, breaches of conditions causing harm to amenity;
• medium – development operations are complete, changes in use result in some harm to amenity, breaches of conditions causing low impact to amenity;
• low – changes of use causing no harm to amenity.

My findings

33. We do not expect councils to react instantly to allegations of breaches of planning control, but we must identify fault and service failure where we find it.
34. The Council has not set itself firm or challenging targets. Its policy does not provide clear guidance to the public and its officers on how it should prioritise its reaction. However, I find that the significant delay at the beginning of the process when X made their allegation is fault.
35. We do not expect councils to react instantly when they receive allegations like X’s, but they must ensure their services are fit for the functions they must provide or decide to provide. This was a complaint about significant disturbance that was likely to result in planning enforcement control and to involve other departments. In these circumstances we would expect the Council to take some meaningful action, including a referral to environmental protection, within a month of receiving X’s complaint of nuisance.
36. If the Council had begun its planning enforcement investigation within a month, it is likely that most of the temporary events would have not gone ahead. If there had not been fault by the Council, the impact on X would have been significantly reduced. Because of the fault, X was caused disturbance from noise. The delay in the Council reacting caused frustration, upset, confusion and unnecessary stress.
37. I made recommendations to remedy the injustice caused to X and to help avoid the same failure happening again. The Council has agreed to accept my recommendations.

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Agreed action

38. To remedy the injustice caused to X by the fault I have found, the Council has agreed to:
1. apologise to X for the impact caused by the delay in taking meaningful action. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology;
2. pay £400 to X for the impact on them of the Council’s delay before it took meaningful action.
39. These will happen within 1 month of the date of our final decision.
40. To reduce the chances the same failure will happen again in future, the Council will review its service provision, practices and policy. The review will include the adequacy of the Council’s enforcement policy on setting clear expectations and guidance for the public and its officers on timescales for starting its investigations and how it will prioritise individual cases.
41. This will happen within 3 months from the date of our final decision.
42. The Council will provide us with evidence it has complied with the above actions.

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Final decision

43. I found fault that caused an injustice to X and might happen again. I have completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman