Summary: There was no fault by the Council in a complaint which alleged it incorrectly refused to take planning enforcement action against the owner of a property close to the complainant’s daughter’s home.

The complaint

1. Mr X complains on behalf of his daughter. Mr X complains the Council refused to take planning enforcement action against the owner of a neighbouring property due to its dilapidated state and alleged breach of a planning condition.
2. Mr X says the Council refused to:
• invoke a ten year rule for an ‘in perpetuity turning circle requirement;
• invoke an untidy land notice under section 215 of the Town and Country Planning Act 1990;
• liaise with Wessex Water to enforce demolition of an illegal building over a water main and public footpath

Back to top

The Ombudsman’s role and powers

3. 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)
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. I reviewed the complaint and background information provided by Mr X and the Council. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

Back to top

What I found

Planning enforcement law and government guidance

6. Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan.
7. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 58.
8. Paragraph 58 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate”.

9. In most cases, development becomes immune from enforcement if no action is taken:
• within 4 years of substantial completion for a breach of planning control consisting of operational development;
• within 4 years for an unauthorised change of use to a single dwellinghouse;
• within 10 years for any other breach of planning control (essentially other changes of use).
10. These time limits are set out in section 171B of the Town and Country Planning Act 1990.

Section 215 notice

11. Under section 215 of the Town and Country Planning Act 1990 (as amended) the local planning authority can deal with untidy land. This section of the Act allows a local planning authority to take enforcement action via an untidy land notice where the amenity of a part of their area, or of an adjoining area, is adversely affected by the condition of land.

Complaint background

12. Mr X’s daughter lives close to a privately owned plot of land. Mr X says the owner allowed the plot to become dilapidated. There are abandoned vehicles on the land, pots of flammable liquid that have rusted and ooze liquids. There is a public footpath through the land which is overgrown. Mr X says the landowner neglects the land in an attempt to positively influence approval of planning applications for redevelopment of the land.
13. Mr X asked the Council to serve a section 215 notice on the landowner to tidy up the land. Mr X also challenged what he considered to be an illegally built garage over a public footpath and water main.
14. The Council’s planning enforcement team paid a visit to the site. The senior enforcement officer decided not to serve a notice because the appearance of the land did not adversely affect the amenity of the area to a degree that warranted a notice. The officer explained the Council would keep the matter under review and if the condition of the land deteriorated then the Council would consider further action.
15. Officers also explained the Council could not take enforcement action against the garage as the time period for action had expired. The garage was therefore immune from action.
16. Mr X made a formal complaint to the Council in June 2019. He asked whether the any officer of the Council would like to walk over or live next door to a disgusting sight. He queried why officers considered the land was acceptable.
17. Mr X had done research into the planning history of the site and the planning permission which led to the erection of the garage. Mr X queried why the Council had not approached Wessex Water during the consultation period in 1985/86. Mr X had consulted Ofwat about planning regulations for the building and reports that body as saying the building was illegal. Mr X queried why the planning enforcement team told him it could only take enforcement action against planning irregularities and not building control matters.
18. Mr X said the 1985 planning application documents showed a turning circle had to be established before any building could take place due to the narrowness of the land. Mr X says the landowner and the then owner of his daughter’s property reached an agreement which involved using part of what is now his daughter’s property to create the turning circle. The arrangement stopped when his daughter bought the property in 2015. Mr X said there was a breach of a condition of the 1985 planning permission since 2015. He said the landowner should be forced to remove all abandoned vehicles and be refused vehicular access until a turning circle was restored. The enforcement team told him it could not take action because the garage had been built in 1990 but Mr X maintained the breach occurred in 2015 and so was still actionable. He said the turning circle was required to be maintained in perpetuity.
19. On the matter of the section 215 notice, the Council maintained its view enforcement officers had visited the site and concluded service of a section 215 notice was not necessary or reasonable. The Council pointed out the landowner had recently been granted planning permission for a new dwelling on the site and so it was satisfied development would likely follow shortly.
20. On the garage, the Council maintained it could not take enforcement action to require demolition of the garage as more than ten years had passed since it was built. It said building regulations enforcement had similar time limits and it would not be possible to pursue a case from 1985.
21. On the turning circle, the Council explained the 1985 planning permission required the area shown for vehicle turning to be laid out before the garage and access were used and it was to be maintained in perpetuity. The Council said the turning area shown in the approved documents was within the plot of the neighbouring property. So, the arrangement involving use of land within Mr X’s daughter’s plot meant the turning area was not in accordance with the approved planning permission. However, the Council’s view was that it could not take enforcement action because the 1985 permission was superseded by the more recent planning permission.

Finding

22. 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.
23. I do not find fault with the Council’s decisions on Mr X’s requests for enforcement action. In terms of the section 215 notice, it was for the Council’s enforcement officers to make a judgement on the state of the land when they visited the site. That judgement is necessarily subjective. I note Mr X disagrees with their judgement but it is not now for the Ombudsman to substitute his judgement for that of the Council’s officers in the absence of fault in the process leading to that judgement. I am satisfied officers made a justifiable decision having observed the condition of the site.
24. As to the matter of the turning circle, I do not share Mr X’s view that the breach of planning control started in 2015. The planning permission required a turning circle within the curtilage of the neighbouring property. The arrangement with the previous owner of Mr X’s daughter’s property was effectively the development. This occurred more than ten years ago and so is immune from enforcement action.
25. Since 2015, the owner of the neighbouring property does not have a turning circle as required by the planning permission. In considering this point the Council said there is a new planning permission which overrides the 1985 permission. I find this to be reasoned justification for its decision not to take enforcement action. If the landowner does not act on the 2018 planning permission and it expires, then the Council may revisit the matter on the basis of the 1985 permission.
26. In terms of an omission to liaise with Wessex Water in 1985, Mr X found out about this matter in 2019. However, I consider the matter is a historic one and should not be pursued by this service. The true facts of the matter cannot be established by this investigation because the Council does not have any documentary evidence on any consultation with Wessex Water.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman