East Lindsey District Council (18 006 739)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 29 May 2019

The Ombudsman's final decision:

Summary: Mr and Mrs B complain that the Council failed to take enforcement action when their neighbour stored two shipping containers and a large quantity of used tyres on a paddock adjoining their home. There was fault by the Council because it did not investigate the use of the containers but relied on this in its decision not to take action, and it failed to explain how the tyres could constitute a wall and so be permitted development. The Council’s shortcomings caused Mr and Mrs B frustration and meant they had to complain to the Ombudsman. The Council has agreed to investigate these issues again, apologise to Mr and Mrs B and pay them £150 in recognition of the impact on them.

The complaint

  1. Mr and Mrs B complain the Council has not taken effective enforcement action to deal with planning breaches at a paddock adjoining their home. The occupiers have put shipping containers, two boats and a large quantity of used tyres on the land.
  2. Mr and Mrs B say that this has caused them frustration in trying to get the Council to take action, and the items on the land are unsightly.

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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 have considered the information supplied by Mr and Mrs B including their photographs, and I have spoken to Mr B about the complaint. I have considered the law. I have also considered the Council’s response to my enquiries and its planning enforcement files, including its site visit notes and photographs. Both parties have commented on a draft of this statement and I have taken these into account before reaching a final decision.

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What I found

  1. A planning contravention notice allows the Council to request information, when it appears that a breach of planning control may have occurred and they want to find out more information before deciding what, if any, action to take. It may also be used to establish ownership prior to taking enforcement action. A failure to complete or return a notice within 21 days is an offence, as is providing false or misleading information.
  2. 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)

  1. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over these matters. The person does not have to apply for express planning permission to carry out the development. Walls and fences are permitted development provided they are under two metres high and away from the public highway.
  2. Councils can serve a notice requiring land be cleaned up when its condition adversely affects the amenity of the area. This is called a section 215 notice. The power is discretionary and it is for the Council to decide whether a notice would be appropriate in the circumstances.

What happened

  1. Mr and Mrs B moved into a new home in 2015. Their home adjoins a paddock and they had understood a farmer owned this to keep a horse. Very soon however, two caravans were placed on the land. The land has planning permission for agricultural use. The Council told the occupier, Mr X to remove the caravans as there was no planning permission for them.
  2. In June 2016, Mr X (who does not own the land), placed two very large shipping containers on the field, two boats and around 400 used tyres. Mr B also told the Council he had a fly infestation traced to a rotting deer hanging in a tree on the land. The RSPCA and police dealt with that and Mr B’s allegations that his neighbour had stolen from them. Mr and Mrs B have suffered criminal damage and threats as they have tried to deal with the occupiers.
  3. The Council started an enforcement investigation and asked for the Police details. The Council reported back to Mr and Mrs B. It confirmed the land is for agricultural use and the containers can only remain there if these are moved around the site and only used for agricultural purposes. In August, the Council served two planning contravention notices by attaching these to the site gate.
  4. Mr X contacted the Council about the PCN. The Council confirmed he should only use the land for agricultural purposes, and so could not keep the boats there. Mr X told the Council he planned to store straw and hay in the containers for horses he intended to keep on the site. Mr B told the Council he had seen Mr X moving furniture into one of the containers and he suspected they were to use it to live in.
  5. In August, the Council met with Mr X. I have read a summary of this meeting:
    • Mr X told the Council the land is not used for residential purposes, and at that time there was no business use. He has sited the two containers. One is empty and the other is used to store tools to maintain the land.
    • The Council advised Mr X that he would have to move the boats. He would need to move the containers a significant distance within the site four times a year and only uses them for agricultural purposes. He could keep one boat in the container while he is doing it up provided that the container is mainly used for agricultural purposes. The Council’s reason here was because although the boat is not agricultural, if the container is being used mainly for agricultural purposes, it would not be proportionate for the Council to take enforcement action. He should take photographs when he moves the containers to keep as a record.
    • He would need to apply for planning permission if he wanted to use the land to live on, or for manufacturing or business.
    • The Council will inspect the site in six months. It wrote to Mr X to confirm what had been discussed at the meeting.
    • The Council considered whether it should serve a section 215 notice but decided that the items in the paddock did not affect the visual amenity of the site enough to warrant this.
  6. The Council reported back to Mr and Mrs B. They told the Council they would monitor the site, but that the smaller boat would not fit in the containers.
  7. The Council visited the site to check on progress in September, October, December and January. It found Mr X had taken no action.
  8. In January 2017, Mr and Mrs B told the Council that a large quantity of tyres had been delivered to the site. He mentioned that nothing else on the site had changed. The Council visited the site that month and found there was a quantity of tyres stacked up along two boundaries of the paddock.
  9. At the beginning of March 2017, Mr X was found guilty of criminal damage to Mr B’s property. Mr X’s solicitor asked the Council for three more months to take the agreed action, as he has been in custody.
  10. On 25 April 2017, senior management discussed the case. It decided not to take enforcement action. It took into account that the boat was on a trailer and was not causing harm. The Council also considered that if Mr X had begun to use the containers for storing agricultural equipment, it should not take action, even without these being moved regularly. The Council’s file note says the containers’ siting would be acceptable and meet its local planning policy. The Council notified Mr X and Mr B of its decision and closed the file.
  11. In May 2018, Mr B told the Council he thought that someone was living in one of the containers. The Council visited the site but found nothing had changed and the containers were locked. The Council could find no evidence that someone was living there and noted that the containers had no windows or openings. The Council wrote to Mr B with its decision not to take further action.
  12. In August 2018, Mr B made a further complaint that Mr X was storing more tyres on the land. The Council visited the site at the beginning of September and found the site in the same state as before with piles of tyres close to one boundary. Mr X said these have been fly tipped by others without permission. The Council agreed that Mr X could build a tyre wall up to two metres high inside the existing boundary fences as this would be permitted development.
  13. The Council met with Mr X in October 2018 to discuss his plans for the site. The Council said that it would refuse an application for permission for anyone to live at the site. It did talk with him about how to better manage and use the site within the planning permission. Mr X said he would build the tyre wall.
  14. The Council visited the site in November 2018. Mr X had not built the tyre wall, and the site was much as it had been at previous visits. The Council told Mr B that the tyres were permitted development as they will be made into a wall. Mr B said there were around 300 tyres and these are not a wall or fence but dumped on the boundary. Mr B also said he had video of the tyres being burned.
  15. At the beginning of January 2019, Mr B reported to the Council that Mr X had moved a catering van onto the land. The Council visited the site and found as well as the existing items, there was now a catering van and another trailer. The Council’s files show it considered whether it could serve a section 215 notice. However, the land is screened from the road and so unlikely to meet the criteria for a notice. The Council wrote to Mr X asking him to remove the trailers within one month.
  16. Mr and Mrs B complained to the Ombudsman that the Council had not taken any action to deal with the various breaches of planning permission.

Was there fault by the Council causing an injustice to Mr and Mrs B?

  1. There was fault in how the Council reached its decisions not to take enforcement action against Mr X.
  2. The Council served a notice on Mr X and agreed with him that he would move the containers periodically and use these for mainly agricultural purposes, remove one boat and keep the other boat in one of the containers.
  3. This agreement did not bind the Council to taking enforcement action when Mr X did not keep to it. It is for the Council to make decisions about whether to take enforcement action. The Ombudsman’s task is to look at how the Council made its decisions, whether it took relevant factors into account and whether it can fully explain its reasons.
  4. The Council decided that Mr X could keep the containers without moving them as if he was using these for agricultural purposes then it would fit the Councils local planning policy. The Council’s files show that it intended to inspect the contents of the containers to make sure of their use, however it did not do this. There is no evidence that the Council have established what Mr X stores in there, and the Council has not taken into account that Mr and Mrs B say they have seen Mr X moving furniture and non-agricultural items into the containers. The Council’s files show it relied on agricultural use of the containers when it decided not to take enforcement action without establishing this. This was fault by the Council
  5. The Council knew Mr X had a quantity of tyres on his land from January 2017, but did not reach a decision about whether to take enforcement action on this until October 2018. There was no clear reason for the delay. The Council decided the tyres could be made into a wall and this would be permitted development.
  6. However, the Council has not explained how the tyres constitute a wall. Its site inspection shows that the tyres are still either in piles or loosely stacked against the existing fence. The Council’s lack of explanation here of how a wall differs from tyre storage, and whether Mr X has actually built a tyre wall that could be constituted permitted development, is fault.
  7. The Council also decided that the boats were not causing harm, and that the site did not affect the local amenity so badly that it warranted a section 215 notice. The Council based this decision on its visits to the site and there was no fault in its decision making here.
  8. The Council’s shortcomings have caused Mr and Mrs B frustration and time and trouble in bringing the complaint to the Ombudsman. We will not know the full extent of the impact on Mr and Mrs B until the Council reviews its decisions. When it has done so, Mr and Mrs B may approach the Council and the Ombudsman again for further action to remedy the impact on them.

Agreed action

  1. The Council had agreed that within one month of this decision, it will show the Ombudsman it has:
    • Apologised to Mr and Mrs B; and
    • Paid them £150 in recognition of the frustration it has caused them and the time and trouble it put them to.
  2. The Council has also agreed that within two months of this decision, it will show the Ombudsman it has:
    • Investigated Mr and Mrs B’s complaints about the shipping containers and the tyres again and decided, based on all the relevant factors, whether it should take further action against Mr X; and
    • Written to Mr and Mrs B to confirm its review and decisions.

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Final decision

  1. I have completed my investigation. There was fault by the Council causing injustice to Mr and Mrs B.

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Investigator's decision on behalf of the Ombudsman

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