Summary: Mr X complained about the Council’s response to his reports of planning breaches at a nearby development. Mr X says he has lived with unacceptable odour and missing landscaping to the rear of his property for longer than necessary and spent time and trouble in pursuing the matter. We have found fault through delay by the Council but consider the agreed action of a symbolic payment provides a suitable remedy.

The complaint

1. The complainant, Mr X, complains the Council has unreasonably delayed taking enforcement action about breaches of planning control he reported at a development next to his home.
2. Mr X says because of the Council’s fault he has lived with unacceptable odour and missing landscaping to the rear of his property for longer than necessary and has spent unnecessary time and trouble in pursuing the matter.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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. I read the papers provided by Mr X and discussed the complaint with him. I have also considered information from the Council. I have explained my draft decision to Mr X and the Council and provided an opportunity for comment.

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What I found

Relevant legislation

8. 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.
9. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. 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.
10. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)
11. 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 decided 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.

12. 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

13. The following is a summary of key events. It does not include everything that happened.
14. Mr X contacted the Council towards the end of May 2022 to report planning conditions had not been complied with at a nearby development. In particular, Mr X said screening trees along the boundary with his property had not been provided. Mr X also reported that a generator and extractor fan had been installed and these items had not been included in the relevant acoustic report.
15. The Council acknowledged Mr X’s report in early June and sought some further information. Mr X provided the information requested.
16. Mr X sought an update in early July. The Council responded to say the developer had confirmed the generator was an emergency generator and would only require periodic testing and the fan was not external. There was no reply about the missing screening.
17. Mr X responded to highlight the missing screening had not been addressed. He was also concerned about the impact of the emergency generator testing as this had not been included in the original acoustic report and the location of the fan did not address his odour concerns.
18. Mr X chased the Council for a reply to his concerns in early August. The Council responded to say Mr X’s concerns had been raised with the developer and these would be addressed as part of a revised planning application. The Council confirmed the developer had been contacted about the outstanding application.
19. The Council provided an update to Mr X in mid-August to say the developer had confirmed they would submit the application the following week. The Council also asked Mr X to confirm if the recently planted trees had resolved this issue and if he had experienced any noise from the emergency generator during its recent testing. Mr X responded to say no trees had been planted in the area next to the end of his garden and he did not know if he was home during the generator testing as he did not know when this took place.
20. Mr X sought an update in early October. The Council responded to confirm the developer had submitted applications which were being assessed and provided the details for these. The Council confirmed Mr X’s correspondence had been passed to the case officer. Mr X provided comments on the applications and asked for them to be shared with the case officer. The Council confirmed Mr X’s comments had been forwarded to the planning case officer and would be included in its consideration of the applications.
21. Mr X contacted the Council in early March 2023 for an update on the issues and to advise the missing trees had still not been planted. The Council confirmed there was due to be a meeting with the planning case officer about the outstanding matters at the site shortly and it would provide an update following this. The Council provided an update following the meeting to Mr X. The case officer was not satisfied the extractor and generator could be dealt with as a non-material amendment and had requested the developer submit a full planning application so any impact on residential amenity could be assessed. There were ongoing discussions about the landscaping.
22. Mr X sought an update in mid-April. The Council provided an update to Mr X in early May. This explained a further meeting had been held with the developer about what needed to be included in the revised application and the supporting evidence required with a deadline for providing this of the end of May.
23. Mr X contacted the Council in early June for an update as the above deadline had passed. The Council confirmed the developer was due to submit the application the next day. The Council provided a further update in mid-June to say a consultant had been appointed by the developer for specific technical advice about some of the remaining issues as sought by the planning case officer and Mr X’s three original reports had been highlighted. The Council apologised for the delay this would cause and confirmed it would keep Mr X updated on progress.
24. Mr X responded to say he considered the appointment of the consultant was essentially another delaying tactic by the developer and wished to make a formal complaint. The Council explained it was necessary to have the outcome of the discussions about the planning applications before deciding whether formal enforcement action was appropriate and expedient. The matter was ongoing and would include consultation with the Council’s environmental health team and arboriculturist consultant. The Council provided details of how to make a formal complaint.
25. Mr X complained to the Council at the end of June about its response to his reports. The Council responded at the first stage of its complaint procedure in early August. This noted the case officer had been in regular contact with Mr X about his 2022 report and had confirmed in October 2022 that the Council was working with the developer to regularise the situation or to consider further action. The Council referred to its Enforcement Plan which confirmed the approach when matters were able to be resolved through the planning process. The Council did not consider the time taken to date was excessive given the complexity of the matter.
26. Mr X remained unhappy with the lack of progress and communication and sought to escalate his complaint in early August. The Council provided a response to Mr X at the second stage of its complaint procedure in early September. This confirmed the Council did not consider it acceptable the developer had built a scheme which was contrary to the approved plans and acknowledged it had been frustrating that retrospective work and applications were required to address the matter. The Council confirmed it was not expedient or practicable to take action requiring the demolition of the development or parts of it and several issues could not be removed without impacting the whole development which was now in use. The Council confirmed it was following its Enforcement Plan to remedy the situation which would take time considering the technical nature of the issues to be resolved.
27. The Council discussed the issues Mr X had raised at a site visit in mid-November. The Council sought a revised application to allow all of the matters to be addressed including the provision of supporting noise assessments. It was confirmed the developer had engaged external noise consultants to assist with the submissions. The Council estimated applications were likely to be submitted in the next 6 – 12 weeks.
28. The Council received the application in May 2024. Mr X contacted the Council to say the application did not address the issues he had originally reported in May 2022. The Council provided an update to Mr X about the three matters he had reported:

• Emergency generator: the technical specifications were included in the current planning application which was submitted following the site visit and the case officer was awaiting environmental health consultee comments.
• Vents at ground floor level: the site meeting had been during lunchtime period and no smells or emissions were noted and re-siting vents at a higher level may create a smell nuisance to local residents.
• Landscaping at rear of Mr X’s property: evident on site there was minimal room for the trees to be planted as the planting area significantly narrowed and it had been suggested an extension of the evergreen laurel hedgerow would provide screening – the suggestion would be referred to the Council’s Arboriculture Consultant for his comments when a slightly amended scheme was submitted.

29. The Council apologised for the time taken which had been impacted by changes in planning staff, planning agents and the requirement for specialist consultants to provide technical information.
30. Mr X responded to note the acoustic situation would not have arisen if the original application had been properly considered and highlighted the kitchen was not in use every day and so may not have been generating any odour on the day of the site visit and the laurel hedge would not provide the same screening as the 5-6 metre high trees originally agreed.
31. Mr X advised the Ombudsman the Council had now confirmed to him it was not proposing enforcement action in respect of his reports.
32. In its response to the Ombudsman, the Council has confirmed the kitchen vents are shown within the current revised planning application which is currently being considered. The consultee comments do not support the view that the position of the vents is causing a statutory smell nuisance. The emergency generator is also shown within the current revised planning application and the consultee comments do not support the view it is causing a statutory noise nuisance. The Council has noted the trees as shown in the outline planning permission drawings would have been unlikely to survive in the area to the rear of Mr X’s property due to the constrained nature of the planting area and it is considered there will be adequate screening when the existing laurel hedge reaches its full height. It has been agreed for a revised landscaping application to be submitted to suggest alternative planting schemes in the restricted planting area to the rear of Mr X’s property.
33. The Council has confirmed the application is currently undergoing assessment and determination by the planning case officer, and if recommended for approval, would regularise the above outstanding matters. The Council has also confirmed it does not consider in any event that it would be expedient to take formal enforcement action in respect of any breach of planning control in relation to the above matters for the reasons set out.

My consideration

34. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
35. I have considered the actions the Council has taken to investigate Mr X’s reports of breaches of planning control and the information it took account when reaching its enforcement decisions. The Council has visited the site, contacted the developer and their consultants and considered all the relevant information including that provided by Mr X before reaching its decisions. I have seen no evidence of fault in how the Council reached its enforcement decisions and I therefore cannot question whether those decisions were right or wrong.
36. However, there has been considerable delay from Mr X’s original report in May 2022. I have considered the ongoing contact with the developer and their agents by the Council, the impact of staffing changes and the technical nature of some of the issues. I have also noted the Council’s updates to Mr X. However, I consider the delay constitutes fault.
37. I have gone on to consider the injustice caused to Mr X given the Council’s decision it would not be expedient to take formal enforcement action in respect of his reports. I am satisfied Mr X will have been caused a period of uncertainty and frustration from his expectations being unreasonably raised during this period. On balance, I consider this requires a remedy in addition to the apology the Council has already provided.

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Agreed action

38. The Council will take the following action to provide a suitable remedy to Mr X within one month of my final decision:
1. make a symbolic payment to Mr X of £200 to recognise his avoidable uncertainty and frustration; and
2. confirm it will provide Mr X with the outcome of the current revised planning application and the agreed revised planting scheme.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman