Summary: Mr B complains that the Council failed to take appropriate action in respect of breaches of planning control relating to a nearby mobile home site. The Ombudsman has found no fault in the way the Council has decided to take no further action, so we cannot question the merits of that decision.

The complaint

1. Mr B complains on his own behalf and on behalf of other residents of his road that the Council has failed to take appropriate action to deal with repeated breaches of planning control and trespass on Council land by the owner of an adjacent mobile home site. Most recently these involve the removal of the fences around the site, the destruction of trees and other vegetation, the construction of unauthorised accesses, and the enclosure of Council land with planters/wooden enclosures.
2. He says that, as a result, the Council has allowed the site owner to change the character of his road from a scenic and secluded lane to an extension of a mobile home site. This has affected residents’ amenity and resulted in a loss of value to their homes.

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What I have investigated

3. I have investigated Mr B’s complaint about the Council’s response to residents reports from October 2018 onwards about the creation of new accesses, the removal of trees and fences, and the installation of new planters/wooden enclosures on highways land. For the reasons set out below, I have not investigated Mr B’s complaints about earlier events.

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The Ombudsman’s role and powers

4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, 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 have considered Mr B’s written complaint and supporting correspondence and discussed his complaint with him. I have had regard to relevant legislation and guidance. I have made enquiries of the Council and considered its response and supporting papers relating to the recent and previous enforcement investigations. The amount of information provided by Mr B and the Council was considerable. In this decision statement, I have not referred to every element of that information, but I have not ignored its significance. I have also sent Mr B and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

8. The Council is both the Local Planning Authority and Highways Authority. It has separate powers and duties in respect of each of these roles, which are governed by different legislation.

Planning permission

9. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.

Permitted development

10. Parliament has given a blanket planning permission (“permitted development”) for many minor works. Subject to the specific nature of the works, local planning authorities have no control over these matters.

Decision making and material considerations

11. All decisions on planning applications must be made in accordance with the council’s development plan unless material considerations indicate otherwise.
12. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise. Government statements of planning policy are material considerations.
13. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
14. General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Enforcement

15. 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.
16. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
17. 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 2021, paragraph 59)

Time limits for enforcement

18. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• there was development on, over or under land without permission, no enforcement action may be taken after four years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after four years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

Planning Enforcement Options

19. Councils have a range of options for formal planning enforcement action 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.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• 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.
20. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance, or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Tree Preservation Orders

21. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as cutting down; topping; lopping; uprooting; and wilful damage and destruction. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority.

Obstruction of highways

22. As a highways authority, a council has a responsibility to ensure that the public can use the rights of way network within the area it covers. This includes enforcing the removal of obstructions along rights of way that are found or reported to the team.
23. Where the council identifies an obstruction, it should begin by asking the landowner to clear the obstruction. It may have to give a statutory time frame to allow for its removal before formal enforcement action can be taken. If a council is not satisfied with the action taken, the penalty for non-compliance could include removal of the obstruction, with reasonable costs being recovered from the offender. If the landowner fails to comply the council can start court proceedings to force the owner to comply.

What happened

24. Mr B lives in a quiet tree-lined road on the edge of a village. There is a site with fixed mobile homes on the opposite side of the road. This was built following the grant of planning permission in the 1980s.
25. The planning permission was subject to conditions including the following condition concerning site access from Mr B’s road:

“Condition 2 - Notwithstanding the provisions of the Town and Country Planning general Development Order 1977 – 1985 there shall be no direct means of vehicular access or pedestrian access to the development hereby permitted from [Mr B’s road].”

26. The reason for imposing condition 2 is given as:

“In the interests of highways safety.”

27. Following the grant of planning permission, the Council provided further clarification to the applicant:

“With regard to Condition 2 any further vehicular or pedestrian access direct onto [Mr B’s Road], other than those longstanding access points existing, will need to be the subject of planning application, and planning permission for such access points may not be readily forthcoming.”

28. A further condition concerned the enclosure of the site:

“Condition 3 - A fence, wall, hedge, tree screen or other means of enclosure of a type to the satisfaction of the District Planning Authority shall be erected or planted around the boundary of the site and the agreed fence, wall, hedge or tree screen shall be erected or planted at such time as may be agreed by the District Planning Authority and any plants which die during the first 3 years shall be replaced in the next planting season.”

29. The reason for imposing condition 3 is given as:

“In the interests of amenity and the appearance of the locality.”

30. There is a long history of planning enforcement complaints regarding the site. In 2017, one of Mr B’s co-complainants, Mr X, complained to the Ombudsman about changes to the site.
31. The Ombudsman noted that Mr X’s councillor first raised concerns about changes to the site in 2009. The Council had investigated and decided it could not take action because it was not clear when the changes had been made.
32. Mr X raised concerns with his councillor from June 2012 about changes to the site. The changes included erecting bollards, a new means of access, filling a ditch to create extra parking spaces and cutting down trees. Mr X wrote to his MP in September 2015 and the Council responded in October 2015.
33. The Council’s response to the MP also explained the difficulties in removing access to the highway. It said it had explained to Mr X’s councillor in 2010 and 2014 that it did not feel it could take enforcement action. The Council confirmed to Mr X’s MP in November 2015 that it did not think enforcement action was expedient. Mr X received copies of both of these letters.
34. The Ombudsman declined to investigate Mr X’s complaint because he could have complained to the Council about the alleged breaches of planning conditions as soon as he became aware of the problems. Mr X was aware of issues from at least 2012 and could have complained to the Ombudsman if he were unhappy with the Council’s response.
35. Following a similar complaint to the Council from a neighbour in October 2018, Mr B complained to the Council in November 2018 about the creation of two new accesses, the installation of new planters/wooden enclosures on highways land, the removal of trees and the lack of enclosure of the site.
36. The Council investigated these matters and there was extensive correspondence with Mr B, site meetings and the involvement of a local councillor. Mr B was dissatisfied with the Council’s response and complained to the Council through both stages of its complaints procedures.
37. I have not set out the detail of all the actions taken or these exchanges. Rather, I have considered below whether there has been fault and, if so, whether this has caused injustice.

My assessment

Creation of two new accesses

38. Mr B considers that the Council wrongly decided not to take action on the basis that the accesses are immune from action because they are not new. He considers that it is illogical for the Council to allow the new accesses on the basis that they will not present a risk to highways safety when the volume of traffic has increased considerably since the original condition was applied in the 1980s. He also considers that the Council has treated residents inconsistently compared with residents on the other side of the road.
39. The Council originally felt that the accesses may be immune from enforcement action on time grounds. Officers had seen what they understood to be the previous footings removed and piled up, so they considered that the accesses were not new but are improvements of existing accesses.
40. The Council now accepts that the accesses are new and so were not immune from action on time grounds. However, it considers that the reason for condition 2 of the planning permission was to prevent the construction of new accesses where this presented a risk to highways safety, not on amenity grounds.
41. It has therefore considered whether there are grounds to take action on grounds of highways safety. It notes that the accesses have a depth of 4.8m, good visibility, the road is unclassified and has low traffic, and there have been no recorded personal injury accidents in the road. Moreover, if the Council were to ask the site owner to apply for planning permission, it does not consider that there would be grounds to refuse permission as there are several historic precedents for accesses from the mobile home site. Given this, the Council does not consider it could recommend refusal on highways safety grounds.
42. I appreciate that there may well be increased traffic in the road since the condition was originally applied in the 1980s. However, the Council has to consider whether there are current grounds to take action having regard to the risk to highways safety and the planning history of the site, which now includes the other established accesses. I see no fault in the way that the Council has considered this matter so I cannot question its decision that there are insufficient highways safety or planning grounds to take action.
43. As to Mr B’s concerns about inconsistency, the new dwelling was the subject of a planning application. The Council accordingly applied a standard condition in order to secure off-street parking provision.
44. In the case of the new accesses to the site, the site owner has not applied for planning permission, so the Council had to consider whether there were grounds to take enforcement action. The new accesses provide off-street parking and, as set out above, the Council has concluded that there are insufficient highways safety or planning grounds to take action. I see no fault here; the Council has considered each case on its merits.

New planters / fence

45. Mr B considers that the site boundary is behind the trees as that is where the fence was previously situated. He says the trees within the planters are on highways land and the Council should take action to prevent its enclosure.
46. Following the complaint about the installation of the planters, the Council wrote twice to the site owner requesting their removal. The site owner moved the planters further back from the road to just in front of the trees.
47. The Council says that the planters are no more than 0.5m high so, from a highways perspective, they present no safety issues as they do not impede visibility. Moreover, in planning terms, they would be permitted development, so the Council does not consider it expedient to take enforcement action.
48. I see no fault here in how the Council has considered this matter from either a highways or planning perspective.
49. As to the position of the site boundary, it is not for the Ombudsman to determine private legal matters such as land ownership. However, the site owner said that the previous highways authority had asked him to trim the trees, so he considered that this indicated that the trees were on his land. The Council’s online map also shows a narrow strip of land between the metalled highway and the curtilage of the mobile home site. This appears to be around 1.2m across, which suggests that the trees (and therefore planters) may be within the curtilage of the mobile home site.
50. It is in any event for the Council to decide what action if any to take if it considers there has been trespass on highways land.

Removal of trees / enclosure / screening of site

51. Mr B has complained about the removal of trees and fences from the site. He considers that condition 3, which states that “A fence, wall, hedge, tree screen or other means of enclosure of a type to the satisfaction of the District Planning Authority shall be erected or planted around the boundary of the site…” has no time limit and is a therefore a condition in perpetuity. He also considers that there was bias in failing to take enforcement action against the site owner while not allowing residents to install their own fence to protect their amenity.
52. The Council has explained that trees were not subject to a Tree Preservation Order (TPO) so they were not protected from removal. It has since put in place a TPO to safeguard the line of remaining trees.
53. As to condition 3, this was considered discharged at outset of the planning application with the existing trees / foliage. Condition 3 makes no specific mention of maintaining or retaining the means of enclosure aside from the statement that “any plants which die during the first 3 years shall be replaced in the next planting season”. Accordingly, the Council does not consider that this condition allows it to require the site owner to reinstate either fencing or foliage to screen the site from the road. I see no reason to question the Council’s view that condition 3 does not allow it to take such action.
54. As to the suggestion of bias, I note that the Council secured the move of the planters further back onto what appears to be land within the curtilage of the site. It does not consider that they represent a risk to highways safety which would warrant enforcement action. It is for the Council to decide whether to allow residents on the other side of the road to install a fence on land which is clearly not within their ownership and which itself might raise issues of liability.

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Final decision

55. I have closed my investigation because I have found no fault in the way the Council considered these matters and decided not to take further action.

Parts of the complaint that I did not investigate

56. Mr B considers that the Ombudsman should investigate the way the Council responded to earlier complaints about planning breaches. He considers that the applicable time limit on enforcement action is 10 years rather than four years and that the Ombudsman can therefore consider matters dating back to 2012.
57. In 2015 one of Mr B’s fellow complainants, Mr X, complained to the Council about planning breaches relating to the site. The Council responded to the complaint and informed the local MP that it considered that earlier breaches were out of time and/or it was not expedient to take action. Mr X complained to Ombudsman about these matters in 2017 but the Ombudsman rejected his complaint, because he had not complained within 12 months of becoming aware of the matter.
58. The complainants were aware of the earlier site accesses and other activity on the site but did not complain to the Ombudsman within 12 months of becoming aware of these earlier matters. I therefore consider that complaints about these earlier matters are outside the Ombudsman’s jurisdiction. Given that the Council’s position remains unchanged, and I see no reason why residents could not have complained to the Ombudsman when they first became aware of the activities on site, I see no reason why the Ombudsman should now exercise discretion to consider a complaint about these earlier events.

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Investigator's decision on behalf of the Ombudsman