Cornwall Council (17 001 964)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 02 Aug 2017

The Ombudsman's final decision:

Summary: The Council was not at fault in the way it dealt with Mr X’s concerns about a breach of planning control caused by helicopters landing in a field near to his property in 2016.

The complaint

  1. Mr X complains about the way the Council took enforcement action over Mr Y using a field near to his home to land helicopters. Mr X says the Council took too long to deal with the use as a breach of planning control and residents suffered a nuisance from helicopters flying to and landing on the field.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

  1. I have read the papers submitted by Mr X and spoken to him about the complaint. I considered the Council’s responses to Mr X’s complaints and documents on its web site about the applications for a certificate of lawful use (CLU). I have explained my draft decision to Mr X and the Council and considered the comments received.

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What I found

  1. Mr X says Mr Y has used the field as a landing point for helicopters since 2003. Mr X says the use as a landing point has varied over the years. He says on occasions it has been more than the 28 days residents thought allowed if Permitted Development (PD) rights applied to the field. These rights allow non agricultural uses on a field for up to 28 days a year without needing planning permission. This is unless an Article 4 Direction covers the land removing such rights.
  2. Mr X says the use of the field increased in 2012 after a business opened nearby and in 2013 Mr X complained to the Council about the increase in inconsiderate flying by visiting pilots.
  3. The Council’s website explains its enforcement policy which runs within Government guidelines. The Council’s policy explains the actions it can take to remedy unauthorised activities. But says enforcement action is discretionary and it has to decide if the breach of planning control unacceptably affects the amenity of the area. The policy states it does not always have to take action but will consider the circumstances of the case. If the Council does take action it usually tries to resolve matters without resorting to formal action or prosecution. If negotiations fail to resolve the problem the Council can serve notices including a Planning Contravention Notice (PCN) to gain information about the alleged breach. The Council’s enforcement policy says its target is to agree a course of action within 13 weeks of assigning a case to an officer.
  4. The Council’s planning service considered Mr X’s complaints and opened an enforcement case. It closed the case saying it considered Mr Y used the land under PD rights. The Council accepted there may be a breach of planning control due to the number of landings. But Mr Y intended to apply for a CLU as the field had been in use as a landing point for 10 years.
  5. Mr Y applied for a CLU. Mr X says Mr Y withdrew the application after residents disputed the 10 years of use. The Council opened a second enforcement case against Mr Y. Mr X says he and the local Parish Council gave evidence to officers about different uses on the land showing it was not a continuous landing point . Mr X says officers confirmed no Article 4 on the land removing PD rights. The Council served a PCN on Mr Y asking for more information about the uses of the field. Mr X considers the Council took longer to serve the notice than the timescales given it its enforcement policy.
  6. Mr Y made a second CLU application. Mr X says officers told residents there was an Article 4 on the land but it only related to caravans. The Council decided to grant the CLU and issued a decision. Mr X says the decision disclosed an Article 4 Direction covering all the land so Mr Y had no PD rights. Mr X says the decision notes included two letters from the Parish Council. Mr X alleges the Council re-dated one letter to that of an earlier submission and removed a second letter outlining the different uses on the land. Mr X alleges the Council removed the Parish Council’s second letter from its website so hiding information.
  7. Mr X, among others, sought a judicial review of the Council’s decision and it was upheld in February 2016. The Courts required the Council to re-determine the application. The Council withdrew its decision on the CLU and Mr Y withdrew the application. The Council opened a third enforcement case and assigned it to an officer in March 2016. The Council agreed a course of action in June 2016 well within the 13 weeks needed by its enforcement policy.
  8. The Council says its action was to look at all aspects of the unauthorised uses present on the land and it issued further PCN’s to cover these. The action is according to the Council’s enforcement policy. The Council says this resulted in Mr Y sending information and making a planning application. Submitting the application took longer than the Council agreed but it did not take action against Mr Y.
  9. The Council said Mr X and the Parish Council then asked it to hold any formal enforcement action until the end of the year. Mr X says he and the Parish Council resolved the issue over the use of the field as Mr Y agreed with them not use the field after then. The Council says it has received no further complaints about the use of the land.
  10. Mr X complains:
    • The Council has taken too long to take enforcement action and not complied with its published timescales;
    • The Council denied the existence of an Article 4 Direction on the land so it allowed Mr Y to build up 10 years use. Once the Council found the Direction applied to the land it enabled the Council to grant a CLU;
    • The Council changed and removed some of the Parish Council’s submissions about the planning application.

My assessment

  1. Mr X has been complaining about the way the Council has taken enforcement action about the use of a field for landing helicopters since 2013. Mr X considers the Council has taken too long to take action. The documents show the Council has opened enforcement cases resulting in Mr X submitted applications for a CLU. When the Council granted permission for a CLU Mr X sought a judicial review of the decision and successfully had it withdrawn. Mr X has taken legal action and had the matter considered by the courts. So the Ombudsman may not consider any of Mr X’s complaints about the Council’s actions before the judicial review case.
  2. I also consider the Ombudsman cannot consider Mr X’s allegations the Council gave misleading information about an Article 4 Direction on the land. And his allegations about the Council removing Parish Council comments from its website. This is because both these matters are connected to the decision on the CLU which Mr X successfully challenged at judicial review. So I do not consider they are separable from the judicial review action.
  3. The parts of the complaints the Ombudsman can consider are Mr X’s concerns about the enforcement action taken by the Council after the judicial review decision. Mr X considers the Council took too long to take action. The documents I have seen show the Council withdrew the decision on the CLU and opened an enforcement case. The timescales show that it took action on the case within the 13 week target of its policy once allocated to an officer. The Council considered the unauthorised uses on the site and issued PCN’s to cover these. The Council’s actions resulted in Mr Y submitting planning applications.
  4. The Council’s enforcement powers are discretionary and in this case it decided to serve PCN’s on Mr Y about the unauthorised uses on the land after the judicial review decision. The Council’s documents show it took this action according to its enforcement policy and within the timescales laid down. Although it may have taken Mr Y longer to submit the applications than he agreed with the Council it was for the Council to decide whether it wished to take any action. There is no evidence of fault in the way the Council dealt with its enforcement case following the judicial review decision.

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Final decision

  1. My decision is to complete my investigation. This is because I do not consider there has been administrative fault by the Council in the way it dealt with Mr X’s concerns about a breach of planning control caused by helicopters landing in a field near to his property in 2016.

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Investigator's decision on behalf of the Ombudsman

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