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South Downs National Park Authority (18 007 595)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 11 Mar 2019

The Ombudsman's final decision:

Summary: Ms B complains the Authority failed to take enforcement action about her reports of possible breaches of planning control within the curtilage of a listed building. The Ombudsman has found no evidence of fault by the Authority.

The complaint

  1. The complainant, whom I shall refer to as Ms B, complains on behalf of a local preservation society that the Authority failed to take enforcement action in response to her reports in April 2018 of possible breaches of planning control within the curtilage of a listed building. Ms B says because of the Authority’s fault there has been an unnecessary loss of heritage and wildlife.
  2. Ms B also complains about the Authority’s consideration of historical planning applications at the site.

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What I have investigated

  1. The complainant, whom I shall refer to as Ms B, complains on behalf of a local preservation society that the Authority failed to take enforcement action in response to her reports in April 2018 of possible breaches of planning control within the curtilage of a listed building. Ms B says because of the Authority’s fault there has been an unnecessary loss of heritage and wildlife.
  2. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether an authority’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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something an authority has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  4. If we are satisfied with an authority’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 read the papers provided by Ms B and discussed the complaint with her. I have explained my draft decision to Ms B and the Authority and considered the comments received before reaching my final decision.

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What I found

  1. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
  2. A full permission will grant permission for all aspects of a proposal, though usually permission is granted subject to planning conditions. A full application should be made for:
  • retrospective planning permission;
  • a change of use of land or buildings;
  • the carrying out of mining, engineering or operations other than building operations.
  1. Where necessary for approval of a permission a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application. The applicant must satisfy the condition and apply for it to be discharged by the authority. It is also possible to apply for a permission to vary or remove conditions.
  2. Local Authorities hold lists of buildings considered by English Heritage to have some special architectural or historic value. Before carrying out any work on a listed building, it is necessary to apply for Listed Building Consent. Consent is still necessary even if the work would be permitted development if carried out on a non-listed building. Where planning permission is required, the developer must submit separate applications, a full or outline planning application and a Listed Building Consent application.
  3. Planning authorities may take enforcement action where there has been a breach of planning control.
  4. Section171A of the Town and Country Planning Act 1990 provides a breach of planning control 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.
  1. Enforcement action is discretionary and government guidance says local planning authorities should act proportionately in responding to suspected breaches of planning control.
  2. LPAs have a choice of different enforcement options to secure a satisfactory remedy for a breach of control. Not all cases will, therefore, be dealt with in the same way. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost-effective way of achieving a satisfactory outcome. The planning authority may also invite a retrospective application to regularise development which has already been undertaken. Such an application must be considered in the normal way.
  3. In deciding whether it is expedient to initiate enforcement action, the LPA will wish to take account of several different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between the protection of amenity and permitting development which is acceptable.

Key events

  1. The Authority received two applications in 2012 for the conversion of an existing stable block building to form residential accommodation. The Authority granted planning permission for both applications in early 2013.
  2. The Authority received a planning application to regularise the change of use of a stable to form a self-contained flat and associated listed building consent application in 2016. The applications were considered the Authority’s Planning Committee in February 2017 with an officer recommendation for approval. However, the Planning Committee deferred a decision to explore possible reinstatement. These applications were subsequently withdrawn in 2017.
  3. The Authority approved a 2017 application for listed building consent for the conversion of a self-contained flat within the stable block to an historical stable room of three boxes using set aside historical framing elements in January 2018.
  4. Ms B contacted the Authority in April 2018 to raise several issues about its consideration of the previous planning applications in 2012 and 2016 and to report alleged breaches of planning control at the site over the previous five years.
  5. The Authority sent a holding letter to Ms B in May and a detailed response in July and apologised for the delay which was due to the level of queries and their historical nature. The Authority’s response set out what action it had taken or its reasons for taking no further action about the possible planning breaches relating to the 2012 planning applications.
  6. This included the removal of an external brick flue which the Authority considered was a minor breach from the approved plans and had a low level of historic significance. The Authority took the view there was no benefit in reinstating a replica feature which would not have historic integrity or aesthetic merit and so it would take no further action. The Authority noted another condition had been addressed under the 2017 application for listed building consent.
  7. The Authority confirmed the County Council Archaeologist considered the building had been adequately recorded and approved the content of the scheme of investigation in 2013 which formed part of the developer’s subsequent application to discharge this condition.
  8. The Authority confirmed the works to remove stabling in original room 8 were unlawful and addressed through the 2017 listed building consent application for reinstatement. The reinstatement works were largely completed and would be inspected shortly to ensure compliance. The unauthorised installation of a kitchen and shower room in original room 9 was regularised through the same application. The Authority has since confirmed to Ms B the reinstatement works were completed in July and inspected by its Conservation Officer.
  9. The Authority confirmed the roof timbers should have been treated in accordance with the roof repair schedule of February 2013 and the Authority received no reports the developer was not complying with this at the time. The Authority noted a photograph provided by Ms B could suggest the developer removed roof timbers but there was not enough evidence to identify if the timbers were destroyed or being repaired for use elsewhere on site. The Authority decided there was not enough evidence to support a successful prosecution given the passage of time and proposed no further action.
  10. The Authority considered a photograph of an allegedly unauthorised television aerial but noted this was internal and not covered by the relevant planning condition and so no further action would be taken.
  11. The Authority noted some tie bars and plates had been removed. The Authority considered these may no longer have been required after works to stabilise the elevations. The Authority explained its Conservation Officer had confirmed they would have agreed to their removal which was regarded as a minor alteration with no discernible impact on the character of the listed building. The Authority would not support the addition of new plates and would not take further action.
  12. The Authority noted the closure of four small window openings on one elevation. These had not been noted during the original planning application and their proposed treatment on the approved plans was unclear. In the circumstances, the Authority decided this work did not constitute a planning breach and there was no condition to prevent the work.
  13. The Authority provided a further update about a protected species licence after contacting Natural England who confirmed it received a report in May 2017 under the 2013 licence. Natural England was satisfied the works completed under the licence had not detrimentally affected the bat population and the licence itself was now expired.
  14. The Authority also responded to a query from Ms B about a 1696 chalk inscription. The Authority confirmed its Conservation Officer had found no evidence of this during site inspections and it was possible the inscription had been removed or covered by a wall finish before 2012.
  15. The Authority met with Ms B in September and provided a further response to questions she raised in October. Ms B raised various issues about the Authority’s consideration of the 2012 applications including questioning the date of a site visit, whether the Planning Committee had viewed plans and a missing repeat bat survey from one application. The Authority provided what information it had and explained the survey had not been correctly uploaded to its electronic system and apologised for this oversight. The Authority explained the bat mitigation licence for the site had now expired and further enquiries should be directed to Natural England. The Authority also directed Ms B to the archaeological scheme of investigation held on a discharge of condition application in 2013.
  16. Ms B provided additional photographic evidence at this meeting about the new roof timbers. The Authority noted the photographs were undated but agreed to visit the site. The Authority confirmed if it identified unauthorised works of any significance it would refer the matter to its Planning Committee for consideration of whether legal proceedings should be started. The Authority noted the Planning Committee meeting was likely to be in early 2019. The Authority also confirmed it had received a report about underground water tanks being destroyed in April 2018 and apologised this was not treated as an enforcement complaint. The Authority would visit the site once further details about the location of the tanks was received.
  17. The Authority advised Ms B of a current application to vary conditions of a previous planning permission which was awaiting information from the applicant and that this would be determined under delegated powers.
  18. Ms B complained to the Ombudsman in August 2018.
  19. I should explain that LPAs have no duty to monitor development. They are dependent upon members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate.
  20. Based on the information provided, I am satisfied the Authority responded to Ms B’s reports and provided its cogent reasons for the action taken or why it did not propose further action. These are decisions the Authority is entitled to reach and, in the absence of fault, it is not open to the Ombudsman to challenge the Authority’s decisions.

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Final decision

  1. I have completed my investigation as I have seen no evidence of fault in the way the Authority responded to Ms B’s reports of possible planning breaches.

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Parts of the complaint that I did not investigate

  1. I have not investigated the part of Ms B’s complaint about the Authority’s consideration of historical planning applications. This is because Ms B did not complain to the Ombudsman within 12 months of the applications which are a matter of public record and I consider it would have been reasonable for her to do so (see paragraph 7 above).

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Investigator's decision on behalf of the Ombudsman

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