Summary: Ms X complains the Council failed to take planning enforcement action swiftly enough to prevent unauthorised development at a site near to her property. We have found no evidence of fault in the way the Council considered these matters so we have completed our investigation.

The complaint

1. The complaint whom I shall refer to as Ms X complains about the way the Council dealt with her concerns about unauthorised development on a site near to her property. Ms X says the Council allowed hardcore materials to be delivered and drainage pipes installed. Ms X says the Council failed to stop and remove the unauthorised development, so it has become established at the site. Ms X expresses concern the development may result in water flooding her land and property with contaminated materials from the hardcore. Ms X says the matter has caused her distress.

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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 have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Councils comments on the complaint and the supporting documents it provided.
5. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning enforcement

6. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
7. Councils have a range of planning enforcement options available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Injunctions – by application to the High Court or County Court, the council may seek an order to restrain an actual or expected breach of planning control.
8. 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, 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.
9. Government guidance indicates that formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.

The Council’s planning enforcement policy

10. The Council has a planning enforcement plan for any enforcement action. It says it will investigate complaints about a possible breach of planning permission or unauthorised development. The Council has discretion over whether to take any formal action and it will act proportionately to the breach of planning control. The policy says any action it takes will be ‘expedient’, meaning it is the right thing to do.

Events leading to the complaint

11. The Council became aware the owner of site near to Ms X’s property was depositing hardcore materials on the land to create a road and hardstandings. This would enable use of the site for residential purposes. The Council’s planning enforcement officers visited the site. The site was rural and located in the green belt. The Council considered there was a breach of planning control on the land and quickly issued a temporary stop notice to the owner to immediately cease bringing materials onto the site and developing it.
12. The site owner submitted a planning application to allow residential use and keep the hardstandings. The Council refused the application as it considered it inappropriate development in the greenbelt. The Council immediately issued the site owner with an enforcement notice saying there had been a breach of planning control. The enforcement notice required the site owner to take actions within six months. This included ceasing to bring hardcore materials to the site and laying hardstandings. The Council needed the owner to remove it instead.
13. The site owner appealed to the planning inspectorate about the Council’s decision to refuse planning permission. This meant the Council had to place a hold on the enforcement notice until the planning inspectorate decided the appeal. As the site owner continued to develop the land the Council sought a Status Quo injunction from the court to prevent any further development until completion of the appeal hearing.
14. The Council says Ms X has not directly contacted its planning enforcement officers about the site. It confirms it has taken enforcement action according to its planning policies, obligations, and legal advice. It sought the Status Quo injunction as a fair and reasonable response to prevent the unlawful development continuing. This was because of the site owner’s stated intent to continue to develop the land despite the enforcement action taken so far. The Council says the High Court has granted the injunction which it believes supports the Council’s position in seeking the injunction. The Council’s enforcement action is continuing.
15. Ms X contacted the Council’s environmental health officers about the works on the site. Ms X expressed concern the site owner had laid drainage pipes allowing water to flow onto her land. Ms X also raised concerns about the hardcore materials brought to the site, what they were made of and the possibility it could contaminate her land.
16. The environmental health officers visited the site. The officers confirmed to Ms X they did not have access to inspect the materials when they were first delivered to the site. But they would not have inspected the materials as part of their normal work in any event as they do not take samples for testing. The officers checked the supplier of the hardcore. The officers were satisfied the supplier was genuine and held correct operating permits.
17. The Council says Ms X’s property does not adjoin the site at any point where any of the imported material could be in contact or would be likely to drain, flood or leach into. The officers advised Ms X there was no evidence of any contaminated materials or flooding onto any adjacent land. The officers confirmed the site owner had installed and laid drainage pipes without permission. But the pipes do not appear to be connected to any installations on the site.

My assessment

18. The documents provided by the Council show it has responded to the unauthorised development of the land. Planning enforcement officers have inspected the site and sought legal advice. This has resulted in the Council carrying out enforcement action through a stop notice and an enforcement notice after it refused the owner’s planning application. This action is in accordance with the Council’s planning enforcement policy. There is no evidence of fault by the Council and it has acted as swiftly as it could according to the advice received. We do not criticise a Council for acting on the legal advice it receives.
19. The Council has also taken court action and gained an injunction in response to the site owner failing to take the required action. The Council’s enforcement action is continuing.
20. The Council’s documents also show environmental health officers responded to Ms X’s concerns and inspected the hardcore materials delivered the site when possible. The officers consider there is no evidence the materials are contaminated or draining onto her land.
21. Ms X disagrees with the Council’s decision there is no evidence of contamination from the hardcore materials, but the decision is a matter of the officers’ professional judgement. We cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in this case. This is because the officers have visited the site to check on the materials. The officers do not consider there is evidence the materials are contaminated. This is a decision the officers are entitled to make. There is no evidence of fault in the way the Council reached this decision from the documents I have seen.

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Final decision

22. I am completing my investigation. I have found no evidence of fault in the way the Council has dealt with Ms X’s concerns about an unauthorised development near to her property.

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Investigator's decision on behalf of the Ombudsman