Summary: The Ombudsman will not investigate this complaint about the Council not pursuing planning enforcement action against an alleged breach of an occupancy condition attached to a dwelling. This is because the alleged fault by the Council has not caused the complainant a significant personal injustice.

The complaint

1. The complainant, whom I refer to as Mr B, says the Council was wrong to decide not to enforce an occupancy condition on the planning permission for a dwelling linked to a cricket club. In particular, Mr B says:
• The Council was initially unaware that there were two versions of the decision notice for the application;
• The Council has failed to have regard to case law about when planning conditions should be deemed void.
2. Mr B believes that if the condition had been enforced then he, as a contracted groundsman for the cricket club, would have been entitled to permanent employment and accommodation as part of his remuneration over the last few years.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I have considered:
• Mr B’s complaint to the Ombudsman;
• The Stage 1 and 2 complaint correspondence between Mr B and the Council;
• The decision notices relating to the planning permissions for the dwelling.
• Mr B’s comments on a draft version of this statement.

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What I found

Planning enforcement

5. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework July 2018, paragraph 58)

“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.” (www.gov.uk/guidance/ensuring-effective-enforcement)

Summary of what happened

6. Over 50 years ago, the Council granted planning permission for the erection of a dwelling house associated with a cricket ground. The planning permission said the occupation of the dwelling shall be limited to a person employed as a groundsman at the cricket club.
7. As I understand it, this permission was superseded by a second application for a similar development a year later. Again, the Council sought to attach an occupancy condition to the permission. However, two versions of the decision notice exist.
8. The unsigned version says:

“The occupation of the dwelling should [my emphasis added] be limited to a person employed as a groundsman at the ….Cricket Ground and the dependants of such a person”.

9. The signed version of the decision notice says:

“The occupation of the dwelling shall [my emphasis added] be limited to a person employed as a groundsman at the …. Cricket Ground and the dependants of such a person”.

10. Mr B has been a contracted groundsman for the cricket club for a few years, and he also occupies the dwelling as a private tenant.
11. In November 2019, Mr B asked the Council whether his occupation of the dwelling was in breach of the occupancy condition, as he had a separate short hold tenancy for the dwelling, and was only employed on a contractual (rather than a permanent) basis by the cricket club.
12. The Council explained the existence of two decision notices was probably due to a human error in the 1960’s. As a result, it was unable to confirm which was the correctly issued version. Therefore, the Council felt it would be unable to sustain formal enforcement action in these circumstances, so it would not be expedient to pursue enforcement action if the occupant of the dwelling was not a groundsman for the cricket club. The Council also noted that irrespective of whether Mr B was a self-employed contractor, he was still acting as a groundsman for the cricket club, so he would comply with either wording of the condition.
13. In January 2020, Mr B informed the Council that his contract with the cricket club had expired.
14. The Council reiterated that because of the critical variation in the wording between the two decision notices, and because it could not now establish which was the correct copy, it would not pursue enforcement action if the occupant of the dwelling was not a groundsman for the cricket club. So, it would not take any action against Mr B if he continued to occupy the dwelling following the termination of his groundsman contract.

Assessment

15. Even if there was fault in the way the Council reached its decision (e.g. not considering the case law identified by Mr B), the Ombudsman may still not investigate a complaint if the alleged fault has not caused the complainant a significant personal injustice.
16. The Council has confirmed that whilst Mr B was acting as a groundsman for the cricket club, his occupation of the dwelling complied with both versions of the planning condition. As the condition does not specify the required terms of any employment/accommodation contractual agreements between the cricket club and the groundsman, the Council would have had no power to insist that the cricket club provide Mr B with the accommodation for free or pay his Council Tax during that time.
17. And now that Mr B is no longer the groundsman for the cricket club, the decision not to pursue enforcement action means the Council will not insist on him leaving the dwelling. Whether the cricket club asks Mr B to leave is a separate, private matter between those two parties.
18. I therefore do not consider the Ombudsman should investigate Mr B’s complaint because the Council’s actions have not caused him a significant personal injustice.

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Final decision

19. The Ombudsman will not investigate Mr B’s complaint. This is because the alleged fault by the Council has not caused Mr B a significant personal injustice.

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Investigator's decision on behalf of the Ombudsman