Summary: Mrs Y complains about the way the Council has taken enforcement action for breaches of planning control at a development near to her property. We have found no evidence of fault in the way the Council considered these matters so have completed our investigation.

The complaint

1. The complainant whom I shall refer to as Mrs Y complains about the way the Council has taken enforcement action for breaches of planning control at a development near to her property. In particular Mrs Y complains:
• The Council failed to consider comments made by residents in 2016 about the suitability of the proposed landscaping scheme for the development and suggesting a more practical planting scheme in keeping with the local landscape.
• The Council failed to enforce a landscaping scheme it approved for the development in 2016 and to prosecute the landowner for failing to comply with the enforcement notices it issued. Mrs Y says the Planning Board granted planning permission based on the Council requiring the landscaping scheme as a planning condition. The condition was to lessen the visual impact of the development as it is in a Special Landscape Area (SLA). Mrs Y says the Council should not be pursuing and agreeing a lesser landscaping scheme now.
• The Council failed to act on reports from residents in 2017 and 2018 of a breach of planning control at the site. And require the landowner to remove a hardcore platform and return the land to its original state.
• The Council failed to enforce the two enforcement notices it served on the landowner in 2018, so has failed to give enough weight to its landscaping planning policies to protect the SLA.

Mrs Y says she has been put to time and trouble in reporting matters and pursuing her complaints to the Council for many years. Mrs Y says the Council’s failure to act has impacted on her visual amenity and the SLA causing her distress. Mrs Y wants the Council to ensure the landowner removes the unauthorised platform, returns the land to its former state and plants a suitable landscaping scheme to lessen the adverse visual impact of the development.

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What I have investigated

2. I have investigated Mrs Y’s complaints from April 2019 onwards when the Council decided not to prosecute the landowner for not complying with the enforcement notices it issued. I have explained within the statement below my reasons for not investigating any concerns Mrs Y has raised about the planning application in 2016 and the Council’s enforcement action to 2019. I have included information about the 2016 planning application and the Council’s enforcement action before 2019 to provide background information and context to Mrs Y’s complaints.

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The Ombudsman’s role and powers

3. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. 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

6. I have read the papers submitted by Mrs Y and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
7. Mrs Y 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

8. 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)

The Council’s Enforcement Policy

9. The Council’s enforcement policy refers to the ‘principles of good regulation’ in the Legislative and Regulatory Reform Act 2006. This includes being proportionate. Under this point the Council states its activities will reflect the level of risk to the public and enforcement action taken will relate to the seriousness of the offence.
10. The policy also has a section on dealing with non-compliance. It says the Council considers a range of factors when deciding the appropriate and proportionate action or penalty applicable in a particular set of circumstances. When the Council considers pursuing a prosecution it looks at two tests. These are whether there is enough evidence against the defendant and if it is in the public interest for the case to be brought to court.

Key events leading to the complaint

11. In 2016 the Council granted planning permission for a development at a site about 600 metres away from Mrs Y’s property. Mrs Y cannot see the development from her property.
12. The applicant submitted a landscaping scheme to help assimilate the proposed development into its surroundings. The Council’s landscape service did not object to the planting scheme. The Council granted planning permission including a condition for the landowner to provide and complete the landscape scheme before occupying the development.
13. The landscaping scheme included a 2-metre-high planted earth bund on the east and south of the site with a row of heavy trees on either side. The landowner was required to carry out grass planting and add extra hedges around the rest of the site.

Council site visits and enforcement investigation

14. Council officers visited the site in November 2016. The landowner had planted some small trees but not to the scale needed by the landscape scheme. The development was unoccupied and being built so not in breach of the planning condition. Officers advised the landowner of the need to comply with the landscaping planning condition.
15. The landowner occupied the development in January 2017 so breached the planning permission. Officers carried out site visits during 2017 and put pressure on the landowner to do planting and build the earth bunds. The landowner started building the eastern bund in summer 2017 so the planting needed to wait for the bund works to be finished and for the appropriate dormant season (October through to March).
16. Residents complained to the Council about works to the bund. Officers visited the site and found the landowner had extended the bund beyond the size approved so causing a breach of planning control. Officers told the landowner to either complete the works or submit an application to amend the permission. The Council says this was according to its enforcement policy as the breach impacted on the wider appearance of the landscape. It did not consider there was an immediate adverse impact on residents in terms or odour or noise. The Council updated residents.
17. In Autumn 2017 the landowner moved large trees from an existing wood to the rear of the eastern bund. Residents and the Council had concerns about the trees surviving, but the Council recognised the attempt to provide a landscape strip. The landowner asked the Council to allow time to see if they would establish. The Council agreed to allow to June 2018 to keep communication open with the landowner to try and resolve the breach of planning control. Because of this the Council did not carry out any formal enforcement action then.
18. Officers visited the site in June 2018 and found none of the trees had taken. The landowner raised concerns about the scale of the landscape scheme submitted by his agent. The Council also considered the scheme complex and expensive for such an agricultural development and more suited to an urban setting.
19. The Council comments it is at its discretion whether to take enforcement action and it uses it when considered appropriate. In this case the Council decided to continue trying to persuade the landowner to comply with the condition rather than take formal enforcement. The Council’s reasoning was because the landowner could appeal to the courts if it took formal enforcement action. The courts may scrutinise the requirements of the landscaping scheme and uphold the appeal if consider the scheme excessive. The Council also needed to consider the courts may issue a small fine if it successfully prosecuted the landowner. This would probably not result in the landowner complying with the landscaping scheme.
20. The Council told residents that on reflection it had concerns about the requirements of the landscape scheme and did not consider enforcement action then a proportionate response to the breaches. It explained it was seeking to resolve the matter by the landowner voluntarily carrying out work and the Council’s main aim was to ensure planting to mitigate the impact of the building.
21. The landowner carried out more tree planting using a smaller species by 2018. This was not according to the approved landscaping scheme, but the Council decided to continue with persuasion rather than formal action.
22. In summer 2018 residents contacted the Council to report development on the land and lorries bring hardcore onto the site. Officers found the landowner had built a large hardstanding area as a platform to store hay bales on. Some engineering works at an agricultural site do not usually need planning permission. But due to the platform size and amount of development within two years the Council considered it a technical breach of planning control at the site. In addition, it considered the larger eastern earth bund needed planning permission. The Council told the landowner there was a breach of planning control.
23. The Council decided to pursue enforcement action to gain some planning control over the land. The Council told the landowner the unauthorised development compounded further the failure to resolve the landscaping breach.
24. In August 2018 the Council considered an enforcement report about the development and proposed enforcement action. The report referred to policy considerations including the site being in an SLA. The Council issued two enforcement notices to the landowner in September 2018 for failing to comply with the landscape scheme and creating the platform. The notices took effect in October 2018 needing the landowner to comply by April 2019.
25. The landowner submitted planning applications to the Council in December 2018 for landscaping and the platform. The Council puts a hold on enforcement action while it considers any planning applications for a site under investigation. The Council refused the applications in April 2019. In June 2019 officers carried out a site visit as the landowner failed to comply with the enforcement notices. The Council sought legal advice and considered how to deal with the non-compliance. Its consideration included:
• concerns how successful prosecution action may be to the long-term aim of achieving a landscape scheme.
• the court may only issue a small fine which would not help to get the landowner to carry out the extra planting needed.
• building the platform was a technical breach of planning control which could have been built without permission a few months later.
• whether the action met the tests required being the level of public benefit and potential success of prosecuting the landowner.
26. The Council decided the tests for prosecuting were not met in this case and to continue to persuade the landowner to remedy the breaches rather than pursue legal action.
27. The Council met the landowner in July 2019 to explain the potential legal consequences of the breaches and requested action by Autumn 2019. The landowner removed the unauthorised section of the eastern bund needed by the enforcement notice. The landowner lowered the height of the platform and carried out more planting. The Council visited the site in November 2019 and January 2020. It advised the landowner it would visit again in April 2020 to assess the planting and see if more planting was needed.
28. In February 2020 residents and a local parish council complained to the Council. They complained the Council had not enforced its decisions or acted to ensure the landowner carried out enough planting. They said the Council needed to set deadlines for the landowner to do the work. The Council responded to the complaints explaining the action taken and rationale behind the decisions. The Council explained it was seeking the implementation of a landscape scheme to help assimilate the development into the landscape.
29. Officers visited the site in September 2020. The landowner moved the hay bales nearer to the development and left some greenery to screen it from views from a nearby road.
30. The Council confirms work continues at the site and in 2021 it asked the landowner to lower the ground level further. Officers visited in June 2021 and found the landowner had reduced the platform land level further as requested. Officers reported wild grass and trees planted at the site continued growing well apart from the trees planted on the bund. The Council considers the extra planting around the rest of the site is also taking well and provides some additional screening.
31. The Council will continue to ask for extra tree planting to make the scheme more acceptable, stabilise the bund and add diversity to the planting already carried out.

The Council’s response to the complaints

32. The Council comments it granted planning permission for the agricultural development as it considered it acceptable on its planning merits not just based on a need to complete the landscaping scheme. This took account of the development being in an SLA and the Council’s landscape policies. The Council says the intention of the landscaping scheme was to provide a screen and soften the building’s appearance, not to hide the development. It says even if the landowner planted the full landscape scheme the development would still be visible from some viewpoints.
33. The Council acknowledges the landowner has not implemented the landscaping scheme according to the planning permission. But the Council does not consider the landscaping scheme the only way to screen the site. The Council decided the proposed scheme was too detailed and unreasonable and made residents aware of its view.
34. The Council says it has sought to ensure the landowner plants a scheme that will help assimilate the development into its surroundings. It acknowledged residents’ concerns and complaints about the delay in carrying out the planting. But says the landowner can only plant successfully at certain times of the year which reduced the time in which the breach could be resolved. The landowner also carried out some planting and the Council waited to see the screening it provided. The Council acknowledges it is a longer process, but it is trying to ensure the planting is carried out. It says it ensured the landowner completed the bund along the eastern side and asked the landowner to plant more trees and hedges. The Council considers the trees will grow to reduce the impact of the development.
35. The Council confirms the enforcement case remains open and it has actively pursued the matter with officers carrying out many site visits. The Council will continue to ensure the landowner carries out suitable planting to bring matters to an end for the benefit of all involved.
36. The Council acknowledges some residents may have certain views of the development, although it is some distance away from properties, so there is a visual impact to the wider environment. But it does not directly impact on to the amenity of the residential properties in the area.

My assessment

37. Mrs Y complains about the Council’s consideration of the planning application for the development in 2016 and says it failed to consider comments from residents about the suitability of the landscaping scheme. As paragraph three explains we will not investigate late complaints due to the passage of time. This restriction applies to Mrs Y’s complaint. I see no ground to warrant exercising discretion to do so now. This is because Mrs Y could have complained to us in 2016 if she was unhappy with Council’s decision to approve the development and any conditions it decided to impose.
38. Mrs Y complains about a lack of enforcement action by the Council in 2016 and 2017. Again, I consider the restriction on time applies to these matters as Mrs Y could have complained to us in 2016 and 2017.
39. The Council’s documents show it took enforcement action in 2018 and issued enforcement notices. If Mrs Y had any concerns about the way the Council carried out enforcement action and issued the notices Mrs Y could have complained to us at the time. I consider it reasonable to expect Mrs Y to do have done so. Because of this I do not consider there are grounds for us to exercise discretion and pursue any concerns about this now.
40. Mrs Y complains about the Council’s decision not to pursue the landowner for non-compliance in April 2019. However, enforcement action is discretionary, and councils are not obliged to take enforcement action when a planning breach occurs. Councils will decide whether, in a particular case, such action is required. So, it is for the Council to decide what action it wants to take.
41. In this case the Council sought legal advice about the issue of non-compliance with the notices. We do not criticise a council for following the legal advice it receives. And we do not criticise a decision made by a council if there is no evidence of administrative fault in the way it was made. I do not consider there is fault in this case. This is because the evidence shows the Council considered its enforcement policy and legal advice received before making a decision. The Council decided the matter did not meet the tests it requires before pursuing a prosecution. So, the Council decided not to take court action against the landowner and to seek compliance by continuing to persuade landowner to carry out the work and planting required.
42. I am aware Mrs Y disagrees with the Council’s decision not to enforce the notices. But it is one the Council is entitled to make, and we cannot review the merits of it in the absence of any fault.
43. The decision on what is an acceptable landscaping scheme for the development and the SLA is decision for the Council to make. The Council acknowledges it has taken some time to ensure an acceptable planting scheme due to restricted times the landowner can carry out successful planting and need to see what screening any planting provides. The Council also has been mindful that while some residents can see the development from the distance it does not have direct impact onto their amenity.

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Final decision

44. I am completing my investigation. I have found no evidence of fault in the way the Council has dealt with Mrs Y’s complaints about its enforcement action over a development near to her property.

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Investigator's decision on behalf of the Ombudsman