Summary: There has been delay in the Council’s consideration of two applications for retrospective planning consent for two businesses on land at a garden centre since April and June 2018. However, this delay does not amount to fault.

The complaint

1. The complainant, whom I shall refer to as Ms F, complains on behalf of a number of local residents that the Council has failed to take appropriate action to deal with unauthorised development of car sales and car wash businesses at X garden centre since February 2018. Ms F says X garden centre is located on greenbelt land and also says these unauthorised businesses are creating a nuisance for local residents in terms of noise, increased traffic and unsightly appearance.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the written information Ms F provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a drat decision on the complaint.
5. I gave the Council and Ms F the opportunity to comment on my draft decision and took account of the comments received before I reached a final decision on the complaint.

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What I found

What should have happened

6. A brown field site is one that has previously been developed and has potential for being redeveloped. Green belt land is an area of countryside protected from most forms of development. It is possible for a brown field site to exist within green belt land.
7. 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. 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 July 2018, paragraph 58)
8. So planning authorities may take enforcement action where there has been a breach of planning control but it is discretionary.
9. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
10. It is for the planning authority to decide whether it is expedient to take action. Councils have a choice of different enforcement options so as to secure a satisfactory remedy for a breach of control. Not all cases will, therefore, be dealt with in the same way. The types of action include:
• no formal action;
• a retrospective planning application where the planning authority may invite a retrospective application to regularise development which has already been undertaken;
• an enforcement notice. This may be issued where it appears to the planning authority that there has been a breach of planning control and it is expedient to take formal action. The notice should specify the alleged breach, and what steps are required to be taken to remedy the breach. There is a right of appeal to the Planning Inspector against an enforcement notice.

What happened

Background

11. The Council says X garden centre is located on a brown field site but that the site is also located in an area of green belt land. Ms F disputes that the site is in a brown field site and states that none of the records confirm this. Dating back a number of years, the owner of the garden centre land has sub-let some of the land and buildings to local businesses including a café, a pet shop, bridal dress sales, a jewellery business, dog grooming, garden machinery and more recently minimal plant sales.
12. The Council says the retail situation arose for two main reasons:
• a Planning Inspectorate decision many years ago which acknowledged garden centres fell within the Use Class Al 'Retail Sales' (shops); and
• there are a number of planning permissions and Certificates of Lawfulness for the site dating back to 1990 which established retail sales as a lawful component of the land use at X garden centre.

The Council’s position on car sales and car washing businesses

13. The Council says the car trading businesses started in February 2018 with the storage of motor vehicles in a corner of the site. The Council says this area of the site has gradually developed over some years. The documentation the Council has provided suggests that the car storage business in question had left a previous site which was being redeveloped and a person who said they were an owner of the garden centre land agreed to allow the business to operate from the garden centre.
14. The Council says that at the time of a complaint about this in February, the Council’s planning department carefully considered the planning and enforcement history for the site and concluded that car sales are not within Al Retail Sales and so the use of the land for this activity was unauthorised. However, it considered it was both reasonable and expedient to allow the motor trader six months to find alternative premises. It says its decision to do so takes account of government guidance on the enforcement of planning control with formal enforcement action being a position of last resort when negotiation and resolution have failed.
15. The Council says that it has been working with the owner of the land to resolve the issue of the car businesses using the land and about wider concerns about the overall condition of the site.
16. The Council says that the landowner and the motor trader sought planning permission for a "temporary car washing and drying facility' and "temporary change of use of part of the site for the purposes of car sales" in April and June 2018. The Council confirms these are ongoing applications on which a decision has yet to be reached.
17. The Council took the view that it was not appropriate to consider taking enforcement action until the retrospective planning applications were considered and decided. Its view is that planning enforcement is a non-statutory process and it has discretion on whether or not to pursue enforcement action. It also says that enforcement action would not provide a quick result or stop unauthorised activities. The Council also said that it considered it likely that parties on whom any enforcement notice was served would be likely to appeal to the planning inspectorate and would claim costs from the Council for any successful challenge. The Council said it was likely that any appeal to the planning inspectorate would take between six and nine months to be considered and so, it considered the best route in the first instance was to deal with planning applications.

The Council’s response to my enquiries regarding the car sales and car was businesses

18. The Council says that when the April and June 2018 applications were submitted no other unauthorised uses were apparent. But later, another car business and storage/parking of buses were a further change of use of the land. The Council says it needs to be clear what all the uses of the land are if it ends up taking any enforcement action if the planning applications are refused in order to deal with all issues in relation to the land. It has tried to liaise with people claiming an interest in the land in order to ensure it is clear on this.
19. The Council says that, following discussions with the purported owners and in order to try to deal with the complex issues on this site it sought legal advice on the issue of how much of the land has been previously developed in October 2018. The Council says it received this in March 2019 and has now considered this. It is also liaising with the person it understands to be the owner of the land regarding the longer term issues on the site.
20. There are a number of complainants who are in touch with the Council on the matters complained about. The Council says its officers have met with these complainants and confirms they have met with Ms F as part of this process. It says the current situation is that the Council is now in a position, since the receipt of legal advice, to progress the planning applications and hopes the matter can considered by the planning committee in Summer 2019.

Nuisance

21. The Council says it has consulted with its Environmental & Consumer Protection Services (ECPS), Environment Agency, Police, Fire Service and the Community Safety Team in order to try to address issues raised about noise and nuisance from the site.
22. The Council said that the ECPS confirmed it had not received any complaints about noise on the site after 2017. The ECPS said it had received a complaint about a smoky bonfire in March 2018 and several in August 2018 about storage of tyres and white goods. The Council says it had encouraged residents to report noise nuisance complaints to ECPS. The Council told residents that a persistent level of noise and nuisance could justify a Temporary Stop Notice (TSN) if it could be attributed to the motor trade activities. The Council said its own records showed just one complaint made on 23 July 2018 relating to an air compressor which it said the landowner addressed immediately so there were no long term problems to address in this regard.
23. The Council commented on a complaint made in August 2018 about “raucous parties and prostitution” on the site but said those allegations were unsubstantiated even though they were investigated. It said that the concerns were passed on to the Police and Community Safety Team.

Is the Council at fault and has this caused injustice?

24. Council has discretion and is entitled to consider the most expedient ways to take action to deal with development that does not have the correct permission. It clearly considered the matter and decided to seek a retrospective planning application in the first instance.
25. In relation to the complaint about the delay in considering two retrospective planning applications submitted to regularise two of the businesses operating a vehicle sales and a car wash since April and July 2018 respectively, I do not consider there are grounds which would lead me to say this amounts to fault. As I have said the Council has a lot of discretion around what action to take on issues of planning enforcement. It is clear that the Council has considered the matter and is taking action to try to deal with this. The situation is somewhat complex as a result of the history of planning on the site and different unauthorised uses on the land. The Council sought specialist legal advice in October 2018 and did not receive this until March 2019. It has now considered this in particular with reference to the issue of what constitutes previously developed land and has decided, in the light of this consideration, to put the matters to its planning committee shortly. The Council is also trying to negotiate and work with the owners and “beneficiaries” of the land to seek their intervention into activities being undertaken on the site. I have specifically considered whether the Council delayed unreasonably in seeking the legal advice but do not consider that waiting to October 2018 amounts to undue delay. The Council is not accountable for the length of time the external legal advisors took to provide the advice.
26. In relation to the nuisance the Council says that very little nuisance has been reported to the relevant authorities and consequently no action has been taken. I have not specifically considered a complaint about a failure by the Council’s environmental health team to take action to deal with nuisance and have focussed on the role of the Council’s planning enforcement team to deal with the unauthorised businesses. Ms F has indicated in response to the draft decision that nuisance has been reported to the Council. I assume that these have been directed towards the Council’s environmental health team for it to deal with. Any complaint about the Council’s environmental health team’s handling of these reports would need to form the basis of a complaint to the Council and then a separate new complaint to this office if Ms F wants to specifically pursue the actions of the environmental health team.

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Final decision

27. The delay in processing the retrospective applications does not amount to fault and the Council was entitled to consider and take the action that it has when deciding what to do regarding the two businesses operating on the site.

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Investigator's decision on behalf of the Ombudsman