The Ombudsman's final decision
Summary: Mr B complained the Council failed to ensure a neighbouring landowner complied with a planning enforcement notice. We upheld the complaint finding fault in poor customer service given to Mr B. This caused him frustration and put him to unnecessary time and trouble. The Council has accepted this finding and agreed action, set out at the end of this decision statement, to remedy Mr B’s injustice and improve its service.
The complaint
I have called the complainant ‘Mr B’. He complains the Council: has failed to ensure a neighbouring landowner complies with planning enforcement notices it served in 2020 (upheld on appeal) requiring them to remove vehicles, trailers and machinery from land next to his home; failed to answer his enquiries and complaint about this matter in a reasonable period of time.
Mr B says the land next to his home looks unsightly, a concern shared by other local residents and Parish Council. He fears more items coming on to the land for storage, further worsening its appearance. Mr B also says the Council’s failure to answer his communications caused him unnecessary frustration.
The Ombudsman’s role and powers
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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) 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)
How I considered this complaint
Before issuing this decision statement I considered: Mr B’s written complaint to this office and any supporting information he provided, including that gathered in a telephone conversation; correspondence Mr B exchanged with the Council about the matters at the crux of his complaint, pre-dating our investigation; information provided by the Council in response to my enquiries; any relevant law, Government guidance or Council policy referred to in the text below; any relevant guidance published by this office referred to in the text below.
I gave Mr B and the Council an opportunity to comment on a draft version of this decision statement and provide any further evidence they considered relevant to its content. I took account of their replies before finalising the decision statement.
What I found
Legal & Administrative Background Councils have discretion to take enforcement action where they find a breach of planning rules. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant planning approval if they received an application for the development or use.
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) The Council adopted its current planning enforcement policy in February 2023. It says that where the Council has served an enforcement notice it will take no further action if complied with. Otherwise, it will consider whether to take further enforcement action. This can include considering the use of injunctions, prosecution or direct action to ensure compliance with the notice.
The Council has a complaint procedure. Stage One of the procedure involves it passing the complaint to the relevant service area to respond. It says it aims to reply to complaints within 10 working days. Where this is not possible it will let the complainant know.
If a complainant remains dissatisfied, the Customer Experience Team will undertake a review at Stage Two of the procedure. It will aim to provide a response within 20 working days. If the complainant remains dissatisfied, they can then complain to this office.
Background
Mr B lives on the edge of a village settlement, bordering an Area of Outstanding Natural Beauty (AONB). Next to his home is a field that slopes downhill. At the bottom of that field, at a distance of around 150 metres from Mr B’s home, the landowner has stored various vehicles, trailers, farm machinery and assorted other items.
In 2020 the former District Council (DC) for the area of Somerset where Mr B lives, served a planning enforcement notice on the landowner. The Council considered a material change of use of the land had occurred, without planning permission. The notice said there was now a ‘mixed use’ of the land for agriculture and for the open storage of vehicles, vehicle parts and other items “not connected with the use of the land”. The notice required the owner to remove those items from the land.
The owner appealed the enforcement notice and the Planning Inspectorate issued a decision in 2021. It dismissed the owner’s appeal.
The Inspector deleted mention of some items from the enforcement notice either finding no evidence they were on the land or else were incidental to its agricultural use. But they said the same could not be said “for the storage of all items on the land, when considered as a matter of fact and degree.” So, they agreed the land now had a mixed use.
Mr B’s enquiries and complaint In February 2022 Mr B contacted the DC wanting to know what action it had taken, or proposed to take, to require the landowner to comply with enforcement notice. He received an acknowledgment within a week, from a Planning Enforcement Officer. They explained the Council had discussed the notice with the landowner and their agent. It had also visited the site. The officer said, “whilst I understand your frustration with this situation it is not a simple case of removing items and tidying up the site. There are a number of things that I have to explore, take into account, document, and then take legal advice […]”.
Mr B acknowledged this email and set out his understanding the Council had already told the landowner they could only store one tractor, one trailer and one piece of farming equipment on the land. Mr B then listed some of the other various items on the land.
In July 2022, having heard nothing more Mr B asked for an update.
After this date, I understand Mr B also approached his local Ward Councillor to enquire about what was happening. The Council wrote to Mr B’s Ward Councillor in January 2023 with an update. But Mr B did not see this.
In March 2023 Mr B made a complaint the Council had failed to update him following his enquiry made in February 2022.
In April 2023, the DC became incorporated into the new unitary Somerset Council.
In June 2023, Mr B chased a reply. The Council escalated his complaint to Stage 2 of the corporate complaint procedure.
In July 2023 the Council’s Customer Experience Team wrote to Mr B saying that despite chasing, its planning service had not responded to its enquiries about the complaint. It advised him to contact this office because of the delay. Mr B did so and we agreed to investigate his complaint.
Our investigation and events during the investigation My investigation has sought to understand: the Council’s position on taking further enforcement action against the landowner of the field; and any delay by the DC or unitary Council in replying to Mr B’s service requests or complaint.
I found the DC had correspondence with the landowner’s agent in the months following the Planning Inspector decision. I have not shared that correspondence with Mr B, but I would summarise the respective position of the two parties as follows: The landowner contended the Planning Inspector’s decision allowed for storage on the land of any item considered incidental to the use of the land for agriculture. They provided a list of vehicles, trailers and agricultural equipment all of which they said had an agricultural use and were used by the landowner. They said the incidental use could extend to use on other sites owned or rented by the landowner.
The Council said the notice required the landowner to remove any items not reasonably connected with the agricultural use of the site. It told the landowner, as Mr B understood, that they should only keep one tractor, one trailer, and one piece of agricultural machinery on the site.
By January 2022 the Enforcement Officer dealing with the case had left their post, replaced by the Officer with whom Mr B would later correspond. The Council provides notes showing that officer, and a colleague visited the site in January 2022. The note of the visit provided by the Council refers to livestock on the land and various ‘clutter’. It makes no mention of the presence on the land, or not, of items listed on the enforcement notice. It does not contain any opinion on whether the Council thought the landowner had complied with the enforcement notice.
In February 2022 there is a note the landowner had agreed to remove one vehicle and one trailer from the land.
The next note on the Council records dates from September 2022. The officer recorded: “there have been many items removed from the site since my last visit, and some items that have been moved within the site”. They said three trailers, one truck and construction materials had gone.
In November 2022 there is a note of another site visit. The short note says the officer saw only one item of non-agricultural use on the land.
In January 2023 Council notes suggest its enforcement team intended to close the case. An email was sent to the Ward Councillor implying the Council considered there was no case for further enforcement. However, the case remained open.
In August 2023, Mr B contacted the Council via a general enquiry email. A senior enforcement officer picked up his query and explained the officer dealing with the case throughout 2022 was absent. They said the service had only two officers dealing with 260 planning enforcement enquiries. They promised to visit the site again as soon as they could. They said they could not say exactly what the landowner could store on the land, but the Planning Inspector’s decision allowed them to store items incidental to an agricultural use.
Mr B acknowledged the contact and set out his understanding of how the landowner used the land at that time. He said little agricultural use took place on the land.
Later that month the Council visited the site. The site visit notes say officers saw various pieces of agricultural machinery on the site. They considered each “had been used recently or were required on site and off site for various reasons”. The Council then wrote to Mr B saying that it considered the landowner “90 to 95%” compliant with the enforcement notice. It said it was compiling a list with the landowner of items stored on the site.
The Council completed that list in September. It lists over 20 different items including vehicles, trailers and agricultural equipment with photographs and a description of each. I note that included in the inventory is: a vehicle subject to a Statutory Offroad Notification (SORN) in the same location since 2020; a large generator; a pile of timber marked "for building” and other construction materials.
After compiling the inventory, the Council wrote to Mr B to say with “absolute certainty” the landowner had complied with the enforcement notice. It said this was the same conclusion it had reached in January 2023. The Council said it accepted items stored on the land appeared unsightly and it would enter dialogue with the landowner about erecting a suitable building on the site for storage.
Mr B wrote back to the Council asking it to reconsider. He said some items bought on the land in 2020 had not moved. He queried how all items on the land could be said to have an ‘agricultural use’ including the generator. He also said the landowner had now moved more building materials on to the site.
In November 2023 the Council sent a further response to Mr B, quoting a passage from the Planning Inspector’s decision. The Council said that it considered photographic evidence showed items stored on the land had moved since 2020. It said it had completed its investigation.
In reply to my enquiries about the customer service given to Mr B, the Council recognised its service failure in not answering Mr B’s complaint. It says its resources became stretched in early 2023 due to staff absence and volume of work. It says it now uses its information technology to issue reminders when complaint responses become due. Also, it has taken action to address “the underlying causes” of the service failure. It says its current planning enforcement policy aims to prioritise investigations into those cases which cause “serious public harm”. This is reducing its backlog.
The Council says that despite Mr B’s complaint to this office, it revisited the enforcement case as soon its failure to respond to his enquiry “became evident”.
It has said there was an isolated failure of its complaints service and planning service to liaise on this case. It says that since it became a unitary authority, the Council has replied to around 75% of complaints about its planning service in its advertised timescale.
Following the issue of a draft decision statement, the Council visited the site again. It has provided me with photographs and described what it found. Its most senior council officers have discussed the case.
The Council considers that it is not expedient, or in the public interest, to take further enforcement action against the landowner noting: the current condition of the land where any vehicles, trailers and equipment are kept in an orderly way and at the furthest point from Mr B’s home; the landowner has additionally made efforts to landscape the site, so limiting sight of the items kept on the land from public views such as from the road nearby; the current agricultural activity taking place on the land.
My findings
I have considered the ‘customer service’ aspect of this case first. I will then consider the Council’s handling of the enforcement investigation.
The Council’s customer service I find the former DC at fault for its customer service provided to Mr B for the following reasons: while it acknowledged Mr B’s contact in February 2022, it never replied to it. This was despite Mr B chasing it in July 2022.
it never told Mr B it had closed its enforcement investigation in January 2023, if this is what it did. I find there is some doubt as I have seen no record for this. However, I am prepared to accept on balance the Council had decided by January 2023 not to take further enforcement action as this appears consistent with its limited record keeping of the preceding months.
The unitary authority was then further at fault in this case. It failed to answer Mr B’s complaint at either Stage 1 or Stage 2 of its complaint procedure.
The combined impact of these faults caused Mr B injustice. He experienced unnecessary frustration and a prolonged uncertainty in not knowing the Council’s position on enforcement. He expended unnecessary time and trouble in finding that out.
In considering the wider implications of this case, I consider it essential planning authorities have effective communication with those who ask for its service when reporting planning breaches (or alleged breaches). The Council should not only acknowledge such communications but also provide a reply. In between, we accept that planning enforcement investigations can sometimes last many weeks or months. In which case the Council should also keep in touch with the person reporting an alleged breach. Such contacts can be brief, simply to advise a matter remains under investigation. But they are a fundamental of basic good administrative practice. Where services face exceptional pressures, this becomes more important. Because those asking for a service may wait far longer for a reply.
I note at present the Council’s Enforcement Policy and its website is silent on how the Council will respond to those who report breaches. It explains how it will decide whether to take enforcement action and what will happen after it serves an enforcement notice. But says nothing about keeping in touch with those potentially affected. This is something I have encouraged the Council to address during my investigation.
The Council considers the failure to reply to Mr B’s complaint was an unfortunate one-off, caused by the exceptional pressures on its planning enforcement service at the time. I accept the statistics provided do not show a widespread failure to answer complaints, or to do so in timescales. Therefore, I decided not to recommend any wider service improvements in this area.
The Council’s enforcement investigation I recognise that in August 2023 the Council resumed correspondence with Mr B about further enforcement of its notice served in 2020. It subsequently made clear its view the landowner had complied with the notice and it considered the case now closed.
I explained above that it is not our role to find fault with a decision reached by the Council when properly made. By this we mean a decision that has only taken relevant facts into account and not relied on anything irrelevant.
In applying this test to the facts of this case, I can see that in 2021 the Council had a clear view about what compliance with its enforcement notice entailed. It considered the landowner must be able to show the items stored on the land had an incidental use for agriculture, in connection with their use of the site. That was consistent its enforcement notice and the Planning Inspector’s decision.
Clearly, the view of the Council in 2020 and 2021, and the view of the Inspector was the number of items stored, ‘as a matter of fact and degree’, were not on balance needed for any agricultural use on the site. In late 2021, the Council set out its view, known to Mr B, that it considered a far more limited storage acceptable. That of a single tractor, trailer and one item of farm machinery.
The Council has since changed its position, considering it could not justify restricting the landowner in this way. Instead, it has sought to identify if the vehicles and items stored on the land have an agricultural use in connection with the land.
I have concerns about the Council’s audit trail illustrating this change of approach. In particular: there is no evidence the site visits of January 2022, September 2022 or November 2022 sought to establish what items on the land had an incidental use for agriculture on the site. They were of extremely limited evidential value to this investigation.
the approach taken to certain specific items on the land including the vehicle subject to the SORN, the generator and certain building materials. I found the visits in August and September 2023 did not show a systematic attempt to link these items to the agricultural use of that land; also, whether those visits showed if the Council had established the agricultural use of the site before deciding if the items stored on the land were for that use.
I would have preferred to see a more thorough analysis of these matters. And in my draft decision I recommended the Council review to consider if the landowner had complied with the enforcement notice.
This it has now done. It has decided that even if the landowner remains partly in breach of the notice, it will not be expedient to take enforcement action. I do not consider I can find fault with its position. This is after taking account of: the Council’s view of the overall condition of the land; the Council’s view of the screening of the land and the distance of any items kept on the land from the nearest house; that any items stored on the land that are in question as to whether they have an agricultural use are few; that the Council’s decision has been reached by its most senior planning officers.
Agreed action
The Council has accepted the findings set out above. To remedy the injustice caused to Mr B by its fault in this case, the Council has agreed that within 20 working days of this decision it will: provide a written apology to Mr B in line with our published guidance on remedies (section 3.2); Guidance on remedies - Local Government and Social Care Ombudsman and pay Mr B £250 in recognition of the avoidable frustration, time and trouble caused by its poor customer service and complaint handling.
In addition to this personal remedy for Mr B, the Council has agreed the following service improvement. That within three months of this decision it will update its website and include a statement on how it will keep in touch with those who report breaches (or alleged breaches) of planning control to its planning enforcement service. This will set out: when it will acknowledge such contacts; when it will provide information to those reporting breaches; both during an investigation and / or when the investigation completes.
The Council has agreed to provide us with evidence when it has complied with the above actions.
Final decision
For reasons set out above I have upheld this complaint finding fault by the Council causing injustice to Mr B. The Council has agreed action that I consider remedies that injustice. Consequently, I have completed my investigation satisfied with its response.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman