Summary: There was no fault by the Council in a complaint that it failed to take planning enforcement action against a town council for unlawfully demolishing a toilet block in a park.

The complaint

1. Mr X says the Council failed to take planning enforcement action against a town council for unlawfully demolishing a toilet block in a park. Mr X’s complaint is composed of the following points:
• The town council should have applied for pre-approval and planning permission to demolish the park toilets. A Wiltshire Council officer said the development could have been permitted development but the development was unwholly unlawful. The demolition of the toilets cannot be retrospectively rectified. The Council should have dealt with this by enforcement notice only, a fine or imprisonment.
• A site notice should have been placed on the site for six weeks so that the public could have been consulted for 40 days on the proposed demolition of an important community amenity in the town park. This was a breach of a planning regulation. The public was deprived of any opportunity to consult.
• There are equality issues that should have been assessed by the Council and the town council. The Council is obligated to do this under the Equality Act.
• The county archaeologist should have been consulted as well as the local conservation area officer but this never happened. The consultation process was not properly followed and so the development was unlawful and amounts to a non-permitted development that cannot be rectified retrospectively. This was a material consideration.
• It is expedient for the Council to take action to issue an enforcement notice. The action could be a fine or imprisonment. The town council could be made to immediately provide an alternative public disabled toilet provision in the park.
• The Council’s planning department try to claim it would have granted planning permission anyway but this is impossible when a consultation period did not happen. The department cannot hypothetically claim what it would or would not have done because it does not know what responses would or would not have been received. This is the reason why such a demolition cannot be rectified retrospectively.
• Due to the breaches no further development works are allowed to be undertaken on the same plot of land because any future plans could never retrospectively rectify the unlawful preparatory demolition that occurred on the land. Planning permission cannot be granted retrospectively. Any further development by any builder, agents, owner of entity, will also be liable to an enforcement notice for the unlawful non-permitted demolition development.
• Mr X saw an email exchange between the development team leader and a town council councillor in which the relevant caselaw was quoted showing the demolition was unlawful, it cannot be rectified retrospectively, and mentioned a need for consultation periods to elapse before granting any approval for any demolition/development.
• The volume of the demolition toilet block was far greater than 50 metres cubed in volume and not less than 50 metres cubed as alleged by the Council and the town council. No measurements were taken by any officers before demolition; any measurements provided to officers were estimates; and the height measurement was a guess.
2. Mr X relies on the following legislation, guidance and local planning rules in support of his complaint:
• Section 196D of the Town and Country Act 1990 which states it is an offence to undertake demolition of an unlisted building within a conservation area without the necessary planning permission.
• Part 11 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 which requires the person wanting to demolish a property to apply to the local planning authority with a written description of the proposed demolition and proposed restoration of the site. The person must put up a site notice about the proposed demolition. The local planning authority will then determine whether prior approval is required for the method of demolition and any proposed restoration of the site.
• The Town and Country Planning (Demolition – Description of Buildings) Direction 2014 in which it is stipulated that buildings with a volume not exceeding 50 cubic metres can be demolished without planning permission.
• Archaeological regulations regarding a planning application submitted by Trowbridge Town Council and decided by the Council in February 2017. The National Planning Policy Framework (NPPF) requires a programme of archaeological excavation to be carried out in advance of the construction granted planning permission due to the significance of medieval features affected by the development.
• The Trowbridge Town Centre Conservation Area Character Assessment Report.
• Equality/Human Rights legislation. Mr X says local authorities should consult their communities if there is a threat of public toilet closures and should demonstrate the case for closure of the toilets. Public authorities are required by their equality duties to consider all sectors of the society they serve. Mr X says local authorities should follow the Government’s White Paper “Communities in Control” and should consult the local community when devising toilet strategies.
• The Local Government Act 2000 places a duty on local authorities to provide a ‘community strategy’ which should aim to enhance the quality of life of local communities and contribute to the achievement of sustainable development in the UK.
• The Equality Act which imposes a duty on public bodies to make reasonable adjustments to account for the needs of disabled people. The toilet spaces and standards of facilities deemed appropriate ten years ago are not meeting the needs of many disabled people today and may not meet the needs of people in the future.
• The UN general assembly resolution 64/292 which recognised sanitation – access to, and use of, excreta and wastewater facilities and services – as a human right. Denial of access to sanitation is denying basic human rights.
• Provision of toilets is the most overlooked human right contained in the European Convention on Human Rights and the UK Human Rights Act. This involves situations which impact on human dignity where a disabled person is forced to self-limit fluids because no toilet facilities are available. The right to private life may also be involved if a disabled person is unable to participate in the life of the community or access essential activities because there are no usable toilets available.
3. This is a summary of Mr X’s comments and does not include all he said in describing infringements of legislation and guidance.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. 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

7. I reviewed the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

Background

8. Mr X raised a planning enforcement complaint in the Spring of 2019 regarding demolition of a toilet block in a local park by the Town Council. He said this was done without planning permission.
9. The Council told him the Town Council should have followed the prior approval process for demolition which could be permitted development. As the Town Council did not do so, there was a breach of planning control. The Council considered whether further enforcement action was appropriate and concluded it was not expedient to take action.
10. Mr X was unhappy with the Council’s decision. In the summer of 2019, he complained about the decision. He raised the points summarised above about the decision and stressed there had been breaches of the Equality and Human Rights Acts. In its complaint responses, the Council explained the decision to demolish the toilet block was taken by the Town Council.
11. The Council emphasised that it had a power to take enforcement action but this was not mandatory. It considered its discretion to take action against unauthorised development in this case but did not find any planning reasons for it to act.
12. The Council considered Mr X’s complaint that it had not applied the provisions of the Equality Act to its enforcement decision. It pointed out the toilet block had been closed for more than a year before the Town Council demolished it. It pointed out there had been extensive drug use within the toilet block. It pointed to alternative toilet provision in a shopping centre a few minutes’ walk away from the park. It did not consider there was maladministration regarding the Equality Act.

Finding

13. The Ombudsman cannot investigate Mr X’s complaints about the Town Council. This is because the Town Council is not a body in our jurisdiction according to the Local Government Act 1974. Nor can we hold the Council responsible for its actions in its place.
14. Mr X’s concerns about the decision including whether there was any public consultation; equality and human rights issues; prior consultation with the Council’s archaeology team; due process in the decision making process prior to demolition; and the taking of measurements of the toilet block were allegations about the omissions or actions of the Town Council.
15. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the Council decides there is a breach of control, as it did in this case, it must consider what harm is caused to the public before deciding how to react. Providing the Council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
16. I am satisfied that the Council was aware of the implications of the demolition and the Town Council’s reasons for the work. Namely that the toilets had been used for drug use, the toilets had been closed for over a year and there were alternative toilets nearby. Its decision not to take planning enforcement action was taken properly.
17. I appreciate that the loss of the toilets is a problem for Mr X but, in the absence of fault, the Ombudsman cannot be critical of the Council.

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Final Decision

I closed this complaint because I do not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman