Summary: Dr J complains about the Council’s enforcement action about a breach of planning permission. The Ombudsman finds no administrative fault with how the Council investigated this. We cannot question the merits of discretionary decisions if there is no evidence of fault.

The complaint

1. The complainant, whom I shall refer to as Dr J, complains that:
• The Council approved a planning application for a large agricultural shed in an area of outstanding natural beauty (AONB).
• The building built:
• can be seen from a road and public footpath;
• is being used by a boat-building business; and
• is larger than the planning application specified.

These are breaches of the permission.

• The Council has not taken effective action to enforce these breaches.

Back to top

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. 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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Dr J;
• made enquiries of the Council and considered its response;
• looked at the publicly available planning files;
• sent my draft decision to Dr J and the Council and considered the responses I received.

Back to top

What I found

Legal and administrative background

6. The role of local planning authorities is to balance the right of a landowner to do what s/he wishes with his or her land and property against the public and private interests of those who own and enjoy land that may be affected by development. Provided there was no administrative fault in the way the local planning authority came to a decision, it is not for the Ombudsman to criticise the way it balanced these often conflicting interests.
7. Every planning application must be decided on its merits in the light of all relevant material considerations. The law decides what is a material consideration. But:

“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty…to give them whatever weight the planning authority thinks fit or no weight at all.”

(Lord Hoffman in Tesco Stores Ltd v Secretary of State for the Environment 1995)

8. A breach of planning control is defined 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.

(Section 171A of the Town and Country Planning Act 1990)

9. Councils are under a duty to investigate complaints about alleged breaches of planning control. If a breach of planning control is found, a council has power to take action, but no duty to do so. The duty is to consider whether it is expedient in the interests of public amenity to take enforcement action.
10. The National Planning Policy Framework says:

‘’Effective enforcement is important to maintain 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.”

11. Councils often first try to deal with breaches informally, through negotiation with the developer/landowner. Negotiations may take time and can result in a developer/owner making a planning application for the unauthorised development that has taken place. This allows the Council to give local people an opportunity to comment on that development and then assess it against planning policies. Normally, development meeting planning policies will get planning permission, unless there are other relevant planning reasons to justify refusal.

Use of land

12. The law puts uses of land and buildings into various categories. Many changes of use require planning permission. (Town and County Planning (Use Classes) Order 1987 (as amended))

What happened

13. Dr J lives a few hundred metres from the site the complaint is about. The site is in an AONB, near to already developed land.
14. In the Autumn of 2017, the Council granted planning permission for the landowner to build a tool storage shed. The officer’s report for the application notes the site is in the AONB. It considered the effect of the development on the character and appearance of the countryside, with reference to local and national policy. It noted the possible effect on wider public views. But it considered the building would not cause any significant harm. The Council granted planning permission.
15. In December 2018 Dr J complained to the Council about the building and that it was visible from a road and public footpath. The Council’s responses said:
• The planning permission had no restriction on the types of storage.
• The Council’s report for the planning application noted the building’s effect on wider views. It did not say it would not be visible.
• It would ask planning enforcement to look into Dr J’s complaint the building as built was larger than that granted planning permission.
16. Dr J first complained to the Ombudsman in March 2019. We made some preliminary enquiries to the Council. These established an officer had not contacted planning enforcement, as intended. But it had now done this. So we ended our involvement, to allow the Council’s enforcement team to consider the matter. After Dr J had complained to the Council, she came back to us, and we investigated.
17. The records the Council has sent me show planning visited in mid-March. Its view was the building had not been built in accordance with the approved plans. The measurements were correct, but the building was not in the right place. But this had little bearing on the site. The visit also found an open sided “pole barn”, which was not in the plans granted planning permission. The Council wrote to the site’s owner and Dr J.
18. In April Dr J contacted the Council to advise her belief was the owner of the site was using the shed for a boat-building business. The Council’s reply noted the planning permission was for a tool storage shed. The officer had seen a boat in the shed, but also tools. The fact the owner stored a boat there was not a material change of use. Any work on the boat would not be significant in terms of the building’s use, if it was small scale and not its primary use.
19. The owner made a retrospective planning application for the pole barn. This gave neighbours a chance to comment. In the summer, the Council granted planning permission. The report noted the site was in the AONB. The officer’s view was the development would have “visual implications”. But it would not result in significant effects on the environment. The Council granted planning permission.
20. The Council wrote to the owner to advise this had resolved the breach of planning permission.

Was there fault by the Council?

21. My consideration of this complaint is limited to Dr J’s complaints about the breaches she reported to the Council and its decision on the retrospective planning application. I have not investigated the 2017 planning permission, as that decision was made more than 12 months before Dr J’s complaint to the Ombudsman. I see no reason why it would have been unreasonable for Dr J to have complained to us earlier about that decision.
22. Where councils are told of a breach of planning control, they have a duty to investigate. But the decision on whether to take action is discretionary. They must consider the extent and degree of any breach and take proportionate action. Here the Council’s view was the location of the shed was a breach, but did not have a significant effect. And, while Dr J disagrees with the Council’s decision not to take formal enforcement action, the Ombudsman can only criticise those decisions if the way the Council made them was affected by fault. I see no evidence of that here.
23. The Council appropriately asked the landowner to make a retrospective planning application for the pole barn. The fact development had started is not a material planning consideration. And the purpose of enforcement action is to control and manage development, not to “punish” development started without planning permission. So councils will often work with the developer to attempt to regularise any breaches of control.
24. I understand Dr J disagrees with the decision on the retrospective application. But I see no fault in the decision. The Council was aware the site was within the AONB. But its view was the development (the pole barn) was acceptable. Without evidence of fault, we cannot question the merits of the professional judgment of planning officers, in balancing material considerations such as different policies and guidance.
25. Dr J also disagrees with the Council’s view about the use of the building. She thinks it is being used for a manufacturing business, contrary to the planning permission. But the Council has visited and formed its own view. I have seen nothing to suggest that this was contrary to any evidence it considered. Dr J cites a website showing the building’s owner runs a a business. But my view is that is not definitively show there has been a change of use of the building. As a result, I cannot find the Council was at fault, as it properly considered the issues before deciding on its response.

Back to top

Final decision

26. My view is there is not fault by the Council. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman