Summary: Mrs X complained about planning decisions the Council made and issues with notification and the information available to the public and consultees. The enforcement situation has been protracted and difficult in this case, but we found there was no fault by the Council. There was delay in the way the Council responded to Mrs X’s complaint. It apologised for this which we considered to be a reasonable response to this issue.

The complaint

1. Mrs X complains that the Council;

1. Incorrectly approved a planning application which went against the Council’s policies.
2. Has not been transparent and has not made information about planning applications available on its website.
3. Failed to provide those making decisions or responding to consultation with appropriate information, such as the objections received.
4. Failed to notify residents about planning applications and sent notification letters to incorrect addresses.
5. Ignored complaints and failed to follow its complaints process.

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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)

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How I considered this complaint

4. I considered Mrs X’s complaint and the information she provided. I looked at the Council’s online planning files for the various applications involved in this matter. I asked the Council to provide information, which I considered.
5. I sent a draft decision to Mrs X and to the Council to enable them to comment. I considered the comments I received before taking a final decision.

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What I found

6. Mrs X complains about the way the Council handled planning applications and planning enforcement for an unauthorised business operating near to her home. She complains in particular that the access from the highway is unsafe and that the Council has failed to resolve the matter.
7. In late 2016 the Council asked the business owner to put in a retrospective planning application because of a change of use. A retrospective planning application was submitted in March 2017. The Council refused this in July 2017 because the change of use intensified the use of the site. It considered the increased use of the existing access would be dangerous.
8. In December 2017 the site owner submitted a planning application to create a new access drive. The Council considered the application and approved it in February 2018.
9. The case officer’s report noted the site and planning history, and considered comments for and against the application. It also considered the Highway Authority’s comments. The Highway Authority set out the visibility that was needed in each direction for the entrance to comply with guidance in ‘Manual for Streets’ (2.4m x 79m in a 40mph zone). It stated that this could be achieved, and the width of the access was suitable. As a result, it had no objections on highway safety grounds. The report set out other consultee comments.
10. The officer noted the Highways Authority were satisfied with the new access. He considered the impact on the green belt, removal of a tree and impact on neighbours. The officer considered, on balance, the entrance was acceptable and approved it in February 2018.
11. In March 2018 the applicant submitted a fresh planning application for the change of use. The application also included the new access. The case officers report noted the new entrance and driveway already had planning permission. They considered the key issues again. The Council approved the application on 4 May 2018. This was subject to the new access being implemented within three months.
12. In August 2018 Mrs X complained to the Council that the access had not been implemented as per the planning permission. Officers visited the site and met the owner. The access was outstanding. The Council says officers were satisfied that the business owner had every intention of complying. However, other landowner’s rights of access had prevented this.
13. The Council told Mrs X it has considered issuing an enforcement notice. However, its legal advice was that a planning application should be invited to consider a change to the plans.
14. A new planning application was submitted to change to the access in December. The case officer’s report noted the Highway Authority comments. They did not object to the access proposed because suitable visibility could be achieved. However, they noted any further intensification of the use would pose concerns. The case officer approved the application in February 2019. The approval was again subject to a condition requiring the access to be implemented within three months.
15. At the end of June 2019 Mrs X complained that the site access was still incomplete.
16. The Council visited the site to investigate again. The Council established the access had been created but not yet put into use. The site owner explained they were waiting for the County Council to resolve an application for the dropped kerb. The County Council confirmed this was the case and that because the legal department input was required it may take some time to resolve. As of November 2019, the County Council confirmed that the dropped kerb matter remained outstanding. As of February 2020, the Council told us the legal process would be completed very soon.
17. The Council explained it decided the applicant had done all he reasonably could to achieve compliance with the planning condition, so it was not appropriate to take planning enforcement action.

Notification

18. The law requires a council to take certain action to notify the public about planning applications. The publicity required depends on the nature of the development. In this case the legal requirement was for a site notice to be erected or for neighbours to receive notification.
19. The Council’s policy for planning applications for a change of use is to write to adjoining properties. It also uses site notices where the application site is located such that neighbour notification is considered impractical.
20. The Council explained that it put up a site notice for each of the planning applications, notified a number of neighbours by letter and placed a newspaper advertisement. Mrs X’s address appears on the list of properties it notified.

Planning Register/Consultee information

21. The law requires Local Planning Authorities to keep a planning register. The law sets out the requirements for various types of application. For full planning applications it must contain:
• a copy of the application form;
• the relevant plans and drawings;
• any legal agreements in connection with the application;
• the decision statement;
• details of any relevant planning appeal.
22. Councils often have online planning files which show more information than they are required to by law. However, the law sets out what must be provided. Generally, planning files are public and can be viewed in more detail at council offices.
23. Mrs X complained that the Council’s website went down on a regular basis and documents could not be uploaded. Rather, objections or comments had to be emailed to the planning officer. She stated that the officer did not upload planning objections to the website. She was concerned that as a result objector’s comments were not available to consultees.
24. She also complained that after decisions were reached, the Council often removed some of the documents that were available online while a planning application was being considered.

Complaint Handling

25. Mrs X made a formal complaint on 2 November 2018. Mrs X complained she had been assured in September that enforcement action would be taken if the new access was not completed within three months as required by the planning condition. She complained the officer dealing with the matter had not taken the action he agreed to.
26. The Council says there was contact between officers and Mrs X about the complaint. However, it did not initially respond to her formal complaint.
27. She chased a response on 19 December after she received no acknowledgement or response.
28. An officer responded on 23 January. He apologised for the delay in doing so. The Council noted that officers had discussed the access with Mrs X. The officer explained the enforcement process and the need to provide a reasonable amount of time for any breach to be rectified before taking formal action. He stated the case officer had been in regular contact with the applicant and had considered issuing an enforcement notice. However, after legal advice the Council determined it should seek a further retrospective planning application, to amend the access further. The officer noted that enforcement notices carried rights of appeal, so even if formal action was taken it may not achieve results quickly.
29. In July 2019, when there was a further delay in resolving the matter, Mrs X asked the council to escalate her complaint and consider it further. She complained about the further delay and raised more general concerns and asked for a response. A Director considered the points Mrs X made and responded on 12 July. The response explained the reason for the further delay in completing the access. It stated planning officers had been told by the County Council it was in the process of determining the dropped kerb application and associated legal matters.
30. The Council recognised Mrs X disagreed with its planning decisions, but felt the planning applications had been dealt with properly and took account of policy. It responded to concerns about notification and about the availability of information.

National Planning Policy Framework (NPPF)

31. The NPPF says that effective enforcement is important to maintain public confidence in the planning system. However, enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

Was there fault by the Council?

Planning and Enforcement Decisions

32. The breach of planning control was first established at the site in question in late 2016, so the matter has been ongoing for some years. I understand it can be frustrating for residents living near to unauthorised development. I also Mrs X is concerned about safety.
33. When councils are alerted to breaches of planning control they have a duty to investigate. However, they have discretion to determine what, if any, action to take. The National Planning Policy Framework requires councils to balance the need to protect the integrity of the planning system with the need to ensure that any enforcement action is not disproportionate to any breach.
34. It would not be appropriate to take formal planning enforcement action solely to address the principle of a planning breach. Rather, councils are obliged to consider what had happened, what was built and its significance to decide what action is warranted.
35. When the Council was first alerted to a planning breach in 2016 it arranged site visits and discussed the situation with the site owner. In 2017 it sought a retrospective planning application. This is an appropriate action to take as the Council can then consider whether the change of use would have been approved had a planning application been submitted. Submission of a planning application also enables councils to apply conditions to control development. So, these were appropriate and proportionate actions to take.
36. A key issue is the consideration given to the suitability of the access. When reaching a decision about this the Council considered advice from the County Council, acting as the Highway Authority. The Highway Authority had no objection to the revised access in any of the applications submitted, and I found no fault in the way the Council decided to approve the applications.
37. When the Council approved planning permission for the change of use in March 2018 and February 2019 it was subject to conditions. Twice there were breaches of the condition requiring the access to be provided in a timely fashion, within three months.
38. On both occasions the Council investigated these breaches and carried out site visits. On the first occasion, the Council noted the work had not been done. This was a breach, but it decided the site owner would need to submit an amended planning application to overcome problems around land ownership and access. On the second occasion in 2019 the Council found the site owner had carried out the majority of the work. The matter was in the hands of the Highway Authority and the site owner could not complete the work and use the access until the Highway Authority agreed details of the dropped kerb.
39. On both occasions officers came to the view that the breach was not something that the site owner could resolve or reasonably overcome. As a result it did not consider formal enforcement action would resolve the breach or be proportionate. It considered the site owner had taken any action that could reasonably be expected of him. I understand Mrs X’s concerns about the existing access, but these are planning judgements the officers made after investigating the concerns, visiting the site and checking the position with the Highway Authority.
40. The length of time that the issue has remained outstanding at the site is unusual, and not ideal. I understand this is frustrating for Mrs X. However, I am satisfied there has not been undue delay in the action of the council at the various points it was involved. Rather, a number of events have prevented the successful resolution of the planning breach. I am satisfied that the Council has taken reasonable steps to investigate and reached decisions it is entitled to, not to take formal action. This took account of the NPPF. There is no duty upon councils to take formal enforcement actions solely due to breaches of planning control. As a result, I do not consider it is at fault.

Notification

41. The Council notified the public about the relevant applications in respect of the site. Its actions complied with its policy and its legal obligations; I found no fault in its approach to notification. I understand Mrs X raised concerns about incorrect addresses being used. However, I have not investigated this further as Mrs X was able to submit comments.

Planning Register/Information available to consultees

42. I set out the legal requirements in terms of the planning register in paragraphs 21 and 22. There is no evidence that the required documents were not kept by the Council in this instance. It is not fault for a council to keep only those documents required for the planning register on its online planning file once an planning application has been decided.
43. Having reviewed the comments made by consultees about the applications in question, there seems no reason to conclude they lacked an understanding of the proposed development or the issues around it. Consultees are asked to comment on the development proposals. So, primarily their role is to comment on the proposals rather than the objections received or comments in favour of applications. Planning officers consider all the comments received by consultees and from the public. The planning officer’s role is to consider these in the context of planning policy and to decide the application. There was no fault in terms of the information available on the planning register or that which was available to consultees in my view.

Complaint Handling

44. The Council’s complaints policy states that at Stage One, the service area will respond. The Head of Planning sent the first response to Mrs X’s complaint. When she escalated the complaint, it was escalated to a Director. The approach was in line with the Council’s policy.
45. There was some delay in responding to Mrs X’s initial complaint. It was submitted in November. There appears to have been no acknowledgement and a response was not sent until 23 January. The council apologised for this in its response, which was a reasonable remedy for the delay.
46. Aside form the delay in the complaint handling I found no fault by the Council. There was no fault in the planning decisions or approach to enforcement issues.

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Final decision

47. There is some fault by the Council. The Council apologised for this. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman