Summary: Mr B says the Council has failed to take enforcement action in respect of the untidy condition of a farm adjoining his property and the storage of items which he considers to be Council waste and fly-tipped items. The Ombudsman is satisfied the Council has properly investigated Mr B’s concerns. In the absence of fault, the Ombudsman does not question the Council’s decision that there are no grounds to justify enforcement action.

The complaint

1. Mr B complains that the Council has failed to take enforcement action in respect of the untidy condition of a farm adjoining his property and the storage of Council waste and fly-tipped items on the farm.

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. 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

4. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
5. I have written to Mr B and the Council with my draft decision and considered their comments.

Back to top

What I found

6. Planning enforcement is discretionary and formal action should only be taken when it would be a proportionate response to the breach of planning control. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
7. Section 215 of the Town and Country Planning Act 1990 (‘Section 215’) states that, if it appears to the local planning authority that the amenity of a part of its area, or of an adjoining area, is adversely affected by the condition of land in its area, it may serve a notice on the occupier requiring specific steps to be taken to remedy the condition of the land within a specified period.
8. The Government has issued best practice guidance (‘the guidance’) to local planning authorities on how best to make use of their powers under Section 215. The guidance states the use of section 215 by local planning authorities is discretionary and it is for the authority to decide whether a notice is appropriate in a particular case, taking into account all the local circumstances including, for example, the condition of the site, the impact on the surrounding area and the scope of their powers.
9. The guidance states, “‘Amenity’ is a broad concept and not formally defined in the legislation or procedural guidance, i.e. it is a matter of fact and degree”.

Key facts

10. Mr B contacted his local councillor in August 2018 about the untidy condition of a farm next to his property. He alleged that items being stored on the land were not relevant to the agricultural use of the land, so a material change of use had occurred. He also alleged that the landowner, Mr X, who is a Council employee, was bringing home Council waste materials and fly tipped items. Mr B was concerned about the impact on his own property and on the public right-of-way passing through Mr X’s land.
11. Details of Mr B’s complaint were passed to the planning department and the highways department to action.
12. Officers from the Council’s: planning; highways; legal; and customer and neighbourhood services departments met to discuss the situation. They agreed that, given Mr B’s allegations that Mr X was using his position as a Council employee to bring home Council property, there was a need for complete transparency and parity so Mr X would be treated in the same way as any other resident, the site would be investigated and a report and recommendation made by planning enforcement officers.
13. On 4 September 2018 planning enforcement officers visited the site to assess the land. They concluded that, although it was untidy, it is an agricultural setting, so the land is not expected to be as tidy as a residential property. Mr X was not present so officers could not carry out a full inspection as they could not access the barn where Mr B alleged non-agricultural items were being stored. They arranged to meet Mr X to assess the barn to see whether there had been a change of use.
14. On 7 September 2018 planning enforcement officers visited the site again. They were satisfied there was no breach of planning control because most of the items on the land were for agricultural use and, although there were pallets of insulation material, Mr X explained this was for insulating the barn. However, they did have concerns about untidy land and advised Mr X to tidy the site.
15. Mr X’s line manager met with him on 18 September 2018 to review photographs of various items on the site including: a bus shelter; a street lighting column; a traffic bollard; and pallets of bricks. Mr X explained how he had acquired each of the items. His manager then visited the site and inspected the items. He was satisfied there was nothing to suggest any of them had been Council assets or obtained during the course of Mr X’s duties.
16. The Council wrote to Mr X on 28 September 2018 advising it considered the land untidy and this should be remedied within two months or the Council would consider serving a notice under Section 215.
17. In January 2019 Mr B contacted the Council stating that, although Mr X had moved items around the site, none of the items he considered to be former Council property had been removed and new items had been brought onto the land.
18. Planning enforcement officers visited the site again. They were satisfied there was a significant improvement in the appearance of the land and that, in the context of an agricultural working farm, there was no harm to the amenity of the area. The Council wrote to Mr B explaining this and confirming it did not intend to take any further action.
19. Mr B submitted a formal complaint about the way the Council had handled the matter. He was not happy with the Council’s response and complained to the Ombudsman.
20. In May 2019 Mr B contacted the Council again stating that more materials had arrived on site and that piles of wood were being stored close to his barn which his insurers had told him was a potential fire hazard.
21. Planning enforcement officers visited the site on 5 June 2019. Mr X was not present. The officers were satisfied that, given that the land is a working farm, its appearance was acceptable and that the stockpile of wood adjacent to Mr B’s barn, was not untidy. The Council wrote to Mr B explaining it was satisfied the site was not untidy and that the potential fire hazard was a civil matter between landowners and not a matter for the Council.

Analysis

22. Whether something is a breach of planning control is a matter of fact and degree and is a matter for the professional judgement of officers depending on the merits of the case. Likewise, it is a matter for officers’ professional judgement whether enforcement action is appropriate.
23. I am satisfied the Council properly investigated Mr B’s concerns about the condition of the land. Officers inspected the land and wrote to Mr X requiring him to tidy the site. Having visited again, they were satisfied the appearance of the land was acceptable. In reaching this decision they considered Section 215 and the fact that the land is agricultural rather than residential. They also considered the fact that Mr X has planning permission to erect a machinery store and were satisfied with his explanation that much of the material stored on site will be used for the purposes of this development. Officers also considered the possibility of a change of use of the land but were satisfied no change of use had occurred. Officers therefore decided there were no grounds to justify enforcement action. This is a matter for officers’ professional judgement and, in the absence of administrative fault, there are no grounds to question that judgement.
24. I am also satisfied the Council properly investigated Mr B’s allegations in terms of employee conduct. It discussed the items which Mr B alleged to be Council property with Mr X and inspected them. Having done so, it was satisfied there was no evidence to suggest Mr X had removed Council owned materials and stored them on his land.
25. In the absence of fault, there are no grounds to question the Council’s decision.

Back to top

Final decision

26. I do not uphold Mr B’s complaint.
27. I have completed my investigation on the basis I am satisfied with the Council’s actions.

Back to top

Investigator's decision on behalf of the Ombudsman