Summary: X complained about the Council’s failure to take planning enforcement action against their neighbour, who carried out developments on the land next to X’s home in breach of planning controls. We found fault because of unreasonable delay in taking enforcement action. We also found service failure because the Council cannot access some of its enforcement records due to building safety problems. The Council has agreed to our recommendations. It will carry out service reviews so it can avoid the fault recurring and to plan for how best to deal with the service failure.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s failure to take planning enforcement action. X said their amenity is affected by unlawful development on their neighbour’s land.

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The Ombudsman’s role and powers

3. 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)
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 read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning enforcement files, including copies of emails and an enforcement notice.
6. I have considered the Council’s responses to my enquiries, along with its enforcement policy.
7. I have discussed what happened with a planning enforcement officer. I have taken into account a supporting statement provided by a service manager.
8. I gave the Council and X an opportunity to comment on a draft of this decision and I took account of the comments I received.
9. I have taken account of our guidance on remedies, which can be found here.

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What I found

Planning enforcement powers

10. 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.
11. 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.

What happened

12. More than two years ago, X complained to the Council’s planning enforcement department about raised land levels in their neighbour’s rear garden. X said the work was done using an excavator machine, by digging into the higher land at the back of the rear garden and moving it closer to the house. X said their neighbour also imported soil, crushed stone and ballast to build up the land. X said the neighbour then built a large climbing frame on the raised land, which is very close to the rear of X’s home. X said that now the climbing frame is in use, there is no privacy in their garden or in the rooms at the back of X's home.
13. X said what happened caused significant emotional stress and financial losses. X said their legal fees cost several thousands of pounds.
14. I asked the Council to provide a chronology of the main events, which could include things like:
• the dates allegations were received, the opening of enforcement files and site visits;
• decisions about whether there is a breach of planning control that causes harm to the public;
• evidence of negotiations with developers;
• letters warning of enforcement action;
• seeking legal advice from Council lawyers or independent counsel;
• receipt of planning applications relating to unlawful development;
• the serving of enforcement notices;
• applications to appeal to the Planning Inspectorate or to challenge decisions in the courts.
15. We recognise that planning enforcement is not a fast process and a combination of these kind of events will cause delays. However, where there are significant delays that cannot be justified by activity or events such as those listed above, we may find fault in unreasonable delay.
16. I asked the Council to provide evidence to show what had been happening since X first made their allegation. The Council provided most of the information asked for, but it did not provide site visit notes. The Council said the site visit notes are likely to be paper records and stored in a building it cannot access. This is because the building is unsafe, due to RAAC (Reinforced Autoclaved Aerated Concrete) construction problems.
17. The Council’s chronology included long periods where little appeared to be happening to progress the case. About sixteen months after the X made their complaint about raised land levels, an enforcement officer wrote to the developer to say there was a breach of control and what could be done to resolve it, but there was no warning that further action would follow nor a deadline to respond by was set. This enforcement officer left the authority shortly after this email was sent, and the next significant event happened about six months ago, when another enforcement officer took over the case and is still dealing with it now.
18. The current enforcement officer wrote an email to the neighbour and suggested solutions that could make the development acceptable. There was no response, and after a further email it became clear that the neighbour did not intend to work with the Council to resolve the breach of planning control.
19. An enforcement notice was prepared and sent to the Council’s lawyers. The enforcement notice was served in recent weeks and will take effect soon. The Council set a compliance period of two months after the notice takes effect, and requires the removal of materials, soil and waste and reprofiling of the land.
20. I spoke to the current enforcement officer about what had happened. They explained they would normally only deal with more significant breaches of planning control but had taken over this case at a time when there were no other enforcement officers employed by the Council. The officer told me that the Council had since recruited two more enforcement officers, who were being trained and supervised while working on simpler cases. The officer also told me that there had been changes to internal structures and new management that had improved the enforcement department’s effectiveness.
21. I asked the Council whether removal of the climbing frame was part of its enforcement action. The Council said:
• this issue had been added to the original enforcement file relating to land levels; and
• compliance with the enforcement notice would require removal of the climbing frame.
22. Along with information requested during my enquiries, the Council sent a statement from a service manager which included comments about what had happened and also a comment on my initial thoughts on what I had seen during my investigation. The service manager said:
• they consider the enforcement investigation was conducted in accordance with the Council’s enforcement policy;
• the chronology the Council had provided to me had been updated with more information, including contacts with enforcement officers, members of the Council, the leader of the Council, a local MP and legal representatives;
• national planning policy and guidance says that enforcement notices should be the last report and every possible step should be taken to negotiate solutions;
• if the enforcement notice was appealed to the Planning Inspectorate, it is likely to take two years to be decided;
• the Council’s enforcement policy allowed the Council to focus on cases that were its biggest priorities, and this case was not high-priority; and
• the Council has recently recruited two more enforcement officers, but only has one experienced enforcement officer.

My findings

23. The evidence I have seen suggests there was a period of approximately eighteen months of undue delay at the beginning of the Council’s enforcement investigation. During that time, while there was some activity, it was not meaningful in terms of progressing the investigation. In my view, the investigation did not begin properly until the current enforcement officer took over the case.
24. The evidence shows some activity, including an email to the neighbour and correspondence with others, including X and X’s representative, but none of these amounted to significant events that might reasonably slow an investigation.
25. I appreciate it is difficult if not impossible for this or any council to carry out its functions without adequate staff resources, but we must identify unreasonable delay when we find it. The Council is entitled to decide how best to use its resources, but it can be criticised by the Ombudsman if we find that inadequate resourcing causes fault or service failure. The long period of delay I found is service failure.
26. The Council said it cannot provide records of its site visit notes because the building used to store them is unsafe to enter. It is unusual for councils to rely on paper records rather than electronic database systems for its enforcement cases, as these records are essential documents that may be needed in appeals and court hearings. If records cannot be retrieved safely and be produced to provide evidence for the Ombudsman or some other enquiry, this is a service failure.
27. I will recommend the Council undertakes service reviews to consider the fault and service failure I have found.
28. What has happened has had an impact on X, who is understandably frustrated and disappointed with the Council’s response to their neighbour’s development. I will ask the Council to apologise for the injustice its fault has caused.
29. I will not ask the Council to compensate X for their legal costs. We are a free service and it is not usually necessary to seek legal advice before bringing a complaint to our attention. If we decide we need legal advice, we will seek it ourselves.
30. We would only recommend compensation for professional fees if the complainant had little or no choice in incurring them. I do not find that was the case here.
31. Where councils fail to take timely action, we can recommend payments to recognise the extended periods complainants suffer the impact of uncontrolled developments. However, the planning enforcement process is ongoing and until it finishes, along with any appeal or legal action that might follow, we cannot know the outcome. This may take some time, but when the enforcement action has finished, X may come back to us again if they remain unhappy. We can then evaluate the extent of the injustice that might be caused by the delay I have found and recommend a remedy to resolve it.

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Agreed action

32. The Council has agreed to write to X and apologise for the injustice caused by the fault I have found. This will happen within one month from the date of our final decision.
33. To avoid the likelihood of the fault happening again the Council will review its planning enforcement service. The review will consider whether the service has adequate resources to carry out its functions effectively. This will happen within three months from the date of our final decision.
34. To ensure it keeps proper, secure and adequate records, the Council will review what information for the planning enforcement service or any other Council service is inaccessible because of RAAC/unsafe building issues. It will consider:
1. whether affected information might be retrieved; and
2. how in future it should best record and keep its records so it can carry out its functions effectively.
35. This will happen within three months from the date of my final decision.
36. The Council will report the outcome of the reviews to the Ombudsman and its own relevant oversight and scrutiny committee.
37. The Council will provide us with evidence it has complied with the above actions.

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Final decision

38. I found fault and service failure. I completed my investigation because the Council accepted my recommendations.
39. We did not evaluate the extent of any injustice caused to X by the fault I have found, because the enforcement process is ongoing. X may come back to the Ombudsman if they remain unhappy when the enforcement process has run its course.

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Investigator's decision on behalf of the Ombudsman