Cherwell District Council (19 017 256)

Category : Environment and regulation > Licensing

Decision : Not upheld

Decision date : 19 Oct 2020

The Ombudsman's final decision:

Summary: There is no fault in the Council’s decision not to take enforcement action against a park home site owner for a breach of licence conditions.

The complaint

  1. Mr X complained the Council has failed to take appropriate enforcement action following a breach of planning permission and licence conditions on the park home site where he lives. He says this has reduced his access to recreational space on the site. He wants the Council to review the evidence and take enforcement action if necessary, to ensure the site has adequate recreational amenity in line with planning permission and licence conditions.

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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. If we are satisfied with a council’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

  1. I considered the information Mr X provided in his written complaint and on the phone.
  2. I considered the Council’s response to our enquires.
  3. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Legal and administrative background

Park home site licencing

  1. Owners of residential park home sites in England require a licence from the local council to operate. The licence will usually have conditions attached.
  2. The Mobile Homes Act 2013 gave local authorities more effective control of conditions on park home sites. It introduced new powers of enforcement against breaches of site licence conditions.
  3. Government guidance says councils should take a staged approach to enforcement. In the first instance, councils should take an informal approach. Formal action should normally be a last resort and should only be considered in the most serious and urgent cases when the informal process has failed to achieve the necessary outcome, within reasonable timescales.
  4. In 2015, Cherwell District Council renewed the licence for the park home site where Mr X lives. The licence conditions for the site included the requirement that:

“space equivalent to about one-tenth of the total area shall be allocated for children’s games and/or other recreational purposes and must be kept tidy and well maintained. This provision will normally be necessary because of the limited space available around the caravans, but may be omitted where there are suitable alternative publicly provided recreational facilities which are readily accessible.”

Planning law and guidance

  1. Planning permission is required for the development of land. Planning permission may be granted subject to conditions relating to the development and use of land.
  2. If a council considers a development is in breach of planning permission, it can consider enforcement action.
  3. Planning enforcement is discretionary and formal action should only happen 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.
  4. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.

What happened

  1. Mr X lives on a park home site. For several years he has had concerns about the site which he has raised with the Council. In April 2019, he contacted the Council to say the site owner was in breach of the site licence conditions, as less than 10% of the site was available for recreational use.
  2. The Council investigated his concerns which included an officer site visit. It found the owner was in breach of a condition attached to a recently approved planning application to further develop the site. The condition stated the owner must submit a plan for an area within the site for leisure and informal recreational use and obtain Council approval for the plan, before the first occupation of the new homes. The owner had not done this, and several of the new homes on the site were occupied.
  3. In May 2019, the Council told the owner he was in breach of the planning permission. It asked him to submit an application to discharge the condition within 28 days, with a plan setting out an area allocated for recreational use. It said if he did not do this, it would consider formal enforcement action.
  4. Mr X formally complained to the Council. He said the site was in breach of the site licence condition for 10% of the site to be allocated for recreational use.
  5. The Council updated Mr X in June, telling him it expected the owner to submit plans for the recreational area within a few weeks.
  6. It responded to him at Stage 1 of its complaint’s procedure. It said it had investigated and found the owner in breach of a planning condition and had asked the owner to submit a planning application to rectify this. It accepted that in the past, it had not kept him up to date about enforcement issues. It apologised for this. It said it would ensure it kept him updated going forward.
  7. The Council kept Mr X updated during July and August. It told him the owner had submitted plans but then subsequently withdrawn them, as the details provided were not sufficient. It had agreed to allow the owner until the end of September to submit new plans.
  8. The Council provided a stage 2 complaint response. It apologised again for not keeping him informed and said it would provide him with a single point of contact going forward.
  9. Mr X asked the Council why it was not taking enforcement action. The Council replied saying it agreed the owner was in breach of the planning condition, but the owner must be given the opportunity to comply. It said voluntary compliance, rather than enforcement action, was always the Council’s preferred option.
  10. At the end of September, the Council met with the site owner’s representative. It emphasised the Council’s licencing team would be looking for a recreational area of about 10% of the site. The site owner’s representative asked for more time to submit the planning application. The Council agreed to allow a further 6 weeks. It informed Mr X of this decision.
  11. In November 2019, the site owner submitted a planning application to discharge the condition. The Council told Mr X it had received an application but advised him applications to discharge conditions were not subject to formal consultation. It said it was informing him as a courtesy and if he wanted to view the application, it was now available on the Council’s website.
  12. Mr X was dissatisfied with the plans. He told the Council the plans did not allocate 10% of the site for recreational use and the Council should reject the planning application.
  13. The site owner submitted amended plans in December. The Council wrote to Mr X to inform him of this and said it would now be considering the application.
  14. Mr X remained unhappy and in January 2020, brought his complaint to us.
  15. In its response to our enquiries, the Council said it accepted the site owner was not currently complying with the licence requirement that 10% of the land be allocated for recreational use. However, it said it did not consider it was appropriate to take enforcement action whilst the applicant was still working with the Council to resolve the matter through the planning process. It said following the outcome of the planning application it would determine what, if any, enforcement action may be necessary.

Analysis

  1. When Mr X complained in April 2019, the Council acted appropriately by investigating his concerns. The Council found the site owner was in breach of planning and licencing conditions. It wrote to the site owner and gave him the opportunity to submit a planning application to resolve the situation. Licence and planning guidance say councils should act proportionately and give applicants an opportunity to put things right before considering whether formal enforcement action is required. The Council gave the site owner the opportunity to put things right through the planning process. This is not fault.
  2. The planning process is still ongoing, and the planning application setting out the plan for the recreational area is yet to be determined. I cannot know what the outcome will be. I would not expect the Council to consider whether planning enforcement action is necessary until the planning process is complete.
  3. The licencing department has decided it will not consider enforcement action until the planning application is decided, as the breach of licence condition may be resolved through the planning process. The Council appropriately considered whether enforcement action was needed and decided it was not appropriate. There is no evidence of fault in how the Council reached this decision, so I cannot criticise the decision reached. The Council is not at fault.

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Final decision

  1. I have completed my investigation. The Council is not at fault.

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Investigator's decision on behalf of the Ombudsman

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