Summary: There is no evidence of fault in how the Council considered enforcement action against a business that installed a crane in its yard, close to Dr G’s property.

The complaint

1. The complainant, whom I shall refer to as Dr G, complains that the Council decided not to take enforcement action against a business that installed a crane in its yard.
2. Dr G says he lives close to the yard, and the crane is overbearing, noisy and produces large amounts of dust.

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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. 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

5. As part of the investigation, I have:
• considered the complaint received from Dr G; and
• reviewed and considered information received from the Council; and
• considered any relevant law and guidance; and
• communicated with Dr G about his complaint.
6. I have also sent a draft version of this document to both parties and invited their comments.

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What I found

Background.

7. Dr G lives on a residential street close to a business which has a yard which it uses for processing concrete.
8. In December 2015, the Council granted permission for the business to install a crane in the yard for a period of 1 year.
9. In April 2017, the crane was still being used so the Council told the business to remove it. The business appealed to the planning inspectorate, who upheld the Council’s decision.
10. In July 2018, the crane was still being used. The Council gave the business until December 2018 to remove the crane, otherwise it would take enforcement action. The business complied with the Council’s instruction and removed the crane.

What happened

11. In January 2019, Dr G contacted the Council to inform it that the business had moved a new crane into the yard. Dr G asked the Council to take enforcement action.
12. An enforcement officer visited the site. In his enforcement notes, the officer questioned if the crane could be classed as development, because it was not attached to the ground and could move under its own power so was therefore not permanent.
13. The enforcement notes referred to emails exchanged between the Council and Dr G. It said that it had reviewed the caselaw, referred to in the emails, but had concluded that the crane did not amount to development.
14. In the email exchange between Dr G and the Council, it said, when making its decision, it considered the Town and Country Planning Act 1990 and a number of examples of caselaw, which the Council believed supported their position.
15. Dr G told the Council that he disagreed with its decision and cited examples of caselaw, which he said supported his argument that the crane constitutes development.

Analysis

16. Dr G says the crane negatively impacts his amenity, because it is noisy, overbearing and creates dust. Dr G says the crane constitutes development and therefore the Council should take enforcement action.
17. But the The Council takes the view that the crane, because of its temporary nature and because it is not physically attached to the ground, does not constitute development under the Town and Country Planning Act 1990 and so its erection does not need planning consent, and therefore it is unable to take enforcement action.
18. Section 55 of the Act defines ‘development’. It says this means the carrying out of building, engineering, mining or other operations in, over or under land, or the making of any material change in the use of any buildings or other land.
19. Notwithstanding these definitions, how they apply in practice has been the subject of several legal challenges in the High Court. Essentially the courts have decided that it is a matter of judgement whether a building amounts to development; based on its size, permanence and physical attachment to the ground.
20. The Council has decided, in this case, the crane is not a building under the meaning of the 1990 Act and so is not development and does not require planning consent.
21. It is not for the Ombudsman to challenge the Council’s view on whether the crane is a building or development under the meaning of the Town and Country Planning Act 1990. It is not for the Ombudsman to dispute the professional view of an officer in the absence of administrative fault.
22. The Council has inspected the crane and come to a reasoned decision that it should not take enforcement action. It has had due regard for caselaw, and it would be for a court to decide if the Council’s interpretation of that law is fundamentally flawed.
23. I understand Dr G may strongly disagree with the Council’s decision, but it is not one the Ombudsman can criticise in the absence of fault in the way it was made.

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Final decision

24. I have concluded my investigation on the basis that there is no evidence of fault in how the Council considered this matter.

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Investigator's decision on behalf of the Ombudsman