Summary: There has been delay in the Council’s consideration of two applications for retrospective planning consent on land within a garden centre site since April and June 2018. However, this delay does not amount to fault. The Ombudsman will not pursue other parts of the complaint that relate to applications on the site submitted in 2014 and 2015.

The complaint

1. The complainant, whom I shall refer to as Ms F, complains that the Council has failed to take appropriate action to prevent unauthorised businesses operating from a garden centre (X garden centre) which is located in an area of greenbelt land to the rear of her property. These businesses are causing a nuisance in terms of noise and unsightliness. Specifically Ms F complains the Council has:
1. delayed in considering two retrospective planning applications submitted to seek consent for two of the businesses operating a vehicle sales and a car wash since April and July 2018 respectively and unreasonably allowed them six months to find alternative premises;
2. wrongly provided a certificate of lawfulness for a mobile home on the land in 2014 and then wrongly gave planning permission for a two-unit mobile home in 2015;
3. wrongly gave planning consent for a scaffolding business on the site in 2015 and has since failed to enforce a condition attached to that consent which restricts the hours of use as the owner is conducting his business outside these agreed hours; and
4. failed to take action to prevent ongoing trading/activity in relation to two other businesses including another car-related business and a car breaking business which are currently operating on the site without consent.
2. Ms F is complaining on her own behalf and that of a number of other local residents living close to the garden centre site.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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 a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). This restriction applies to part b) and some of part c) of Ms F's complaint.
5. 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)

Back to top

How I considered this complaint

6. I discussed the complaint with Ms F and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
7. I gave the Council and Ms F the opportunity to comment on my draft decision and have taken account of the comments received before reaching my final decision on the complaint.

Back to top

What I found

What should have happened

8. 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.
9. 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)
10. So planning authorities may take enforcement action where there has been a breach of planning control but it is discretionary.
11. 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.
12. 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.
13. The Town and Country Planning Act 1990 enables any person to ascertain whether:
• any existing use of buildings or other land is lawful;
• any operations which have been carried out are lawful; or
• any failure to comply with a planning condition or limitation is lawful.
14. This means that a particular development can be certified as lawful because there has been no breach of planning control (eg it was permitted development), or because the time to take enforcement action has expired. If the local planning authority is provided with information satisfying it of the lawfulness of the use, operations or other matter at the time of the application, it must issue a certificate to that effect and its lawfulness must then be “conclusively presumed”. There is no duty on a local planning authority to notify neighbours about an application for a Certificate of Lawfulness, although some authorities do so.

What happened

Background

15. In its response to Ms F’s complaint to the Council, it provided a helpful account of the background of development at the site in question. I will broadly repeat this now in order to provide the context for the complaint to this office now.
16. The Council says that X garden centre is located on a brown field site and that it 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.
17. 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.

Development on the site in 2014 and 2015

18. In November 2015 the Council gave conditional planning consent for a scaffolding equipment storage business on the site. The conditions attached restricted the hours of operation and the height to which scaffolding equipment could be stored. The Council said that whilst a complaint was received about Sunday working (which would have been a breach of the planning consent condition on this), it later transpired that there had been no Sunday working but noise generated by a burglary, the noise being burglars stealing the scaffolding.
19. A certificate of lawfulness was issued by the Council regarding the occupation of a mobile home on the site in 2014. The paperwork provided by the Council confirms that no community consultations were undertaken. The paperwork also confirms that evidence was provided that a mobile home on the land had been used a residence from 2002. The Council issued a Certificate of Lawfulness given the mobile home had been used for residential purposes for a period of more than 10 years. The planning details in relation to the 2015 application for a two-unit mobile home indicate that a site notice was displayed and “neighbouring notifications” sent in order that local people and neighbours were aware of the application and of the right to make comments on it before the application was considered and approved.

Car sales business

20. 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.
21. 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.
22. 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.
23. 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.
24. 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 business

25. 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.
26. 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.
27. 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.
28. With regard to the other two car businesses referred to in part d) of the complaint the Council confirms it has not received any applications to regularise these two businesses but says the first step is to resolve the issues around the historical use of the land as this affects the future use as this will influence what can happen around enforcement action as will the decision on the application for the care sales business.

Nuisance

29. 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.
30. 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.
31. 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?

32. 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.
33. 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.
34. As a result of further information in response to my enquiries I have decided not to pursue the complaint that the Council wrongly provided a certificate of lawfulness for a mobile home on the land in 2014 and then wrongly gave planning permission for a two unit mobile home in 2015. This is because we would ordinarily expect complainants to come to us within 12 months of becoming aware of the matter about which they wish to complain and I see no reason to consider Ms F could not have complained to use before now if she wanted to pursue this part of her complaint. It seems clear from application details available on the Council’s website that the 2015 application was consulted on appropriately and so Ms F should have been aware of it at the time and therefore could have commented on that application. Even if I were to investigate the complaint in relation to the 2014 application it would be very unlikely I would find fault in relation to the complaint that neighbours were not consulted as there was no requirement to do so.
35. Again the evidence suggests that the Council correctly publicised the planning application for consent for a scaffolding business on the site in 2015. So it is reasonable to believe that local residents could have been aware of this at the time and so could have complained to his office before now. For this reason I am not going to consider this part of the complaint further. In relation to failure to enforce the condition relating to the hours of operation on the site the Council says this was reported once and that this turned out to be noise from someone stealing scaffolding equipment from the site. There are therefore no grounds for me to consider the Council has failed to enforce this condition.
36. The complaint that the Council failed to take action to prevent ongoing trading/activity in relation to the two other businesses including a car sales business and a car breaking business which are currently operating on the site without consent, appears to have been swept up into the consideration of the two applications under current consideration. So, specific consideration of these other activities will be made following the decision on the two current applications. I do not consider such a course of action would amount to fault.
37. 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 she has reported the nuisance to the 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.

Back to top

Final decision

38. The delay in processing the retrospective applications does not amount to fault and the Council is entitled to consider such action when deciding what to do regarding the two businesses operating on the site. Equally there is no fault in it waiting for the outcome of the decision on these two applications before it decides what to do with the two newer businesses. I did not pursue other parts of the complaint for the reasons given.

Back to top

Investigator's decision on behalf of the Ombudsman