Summary: The Council has delayed in deciding how to respond to breaches of planning control on land close to Mrs Y. This fault has caused injustice which the Council will remedy with the actions set out at the end of this statement.

The complaint

1. The complainant, whom I will call Mrs Y, complains about the unlawful use of a site close to her home. She says the Council has failed to take action, despite the site breaching planning control and creating nuisance.
2. Mrs Y says the Council’s inaction has affected her quality of life because of the visual impact of the site and intrusion from noise, light, pollution and general nuisance.

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What I have investigated

3. We have investigated matters from 2019 when Mrs Y became aware of a large motorhome on the land complained about. Mrs Y reported her concerns to the Council in December 2019. We have exercised discretion to investigate matters from this point but will not investigate the older matters for the reasons explained at the end of this statement.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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. During my investigation I contacted Mrs Y to discuss her complaint and considered any information she provided.
8. I made enquiries of the Council and considered its response. I also consulted the relevant law and guidance around planning and planning enforcement, which I have cited where relevant in this statement.
9. I issued a draft decision statement and gave the Council and Mrs Y an opportunity to comment on my findings. I considered their comments before making a final decision.

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What I found

What should happen

10. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
11. Breaches of planning control are defined in S171A of the Town and Country Planning Act 1990 (the Act) as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
12. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under S172 of the Act. It is for the planning authority to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
13. Alternatively, a planning authority may invite a retrospective application under S73A of the Act. In circumstances where the authority considers an application is the appropriate way to regularise the breach, the owner or occupier of the land should be invited to submit their application without delay. When taking this approach, it should not be assumed that permission will be granted. Any application must be considered in the normal way.
14. The National Planning Policy Framework 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”

What happened

15. Mrs Y lives close to a field which she says has been unlawfully developed over the past 14 years. The field is now used as a campsite which sometimes hosts rallies and festivals. Because of the development Mrs Y says her quality of life is negatively impacted from noise, light and visual intrusions.
16. The site has a contentious history and has previously been subject to various notices for statutory nuisance and breaches of planning control.
17. On 4 December 2019 Mrs Y notified the Council about the addition of a large unit on the site which she suspected was being used for residential purposes. Mrs Y did not receive any response, so she contacted the Council several times in early 2020. The records also show the Council was receiving correspondence from the Parish Council about the site.
18. Mrs Y also contacted the Council’s Environmental Health team in June 2020 about fires on the field. Records from the Council show it contacted the owner of the site about the reports. He explained that he had recently burned some tree branches. The Council warned the owner that it was not appropriate to burn waste and advised him of his legal obligations about waste disposal.
19. A local Councillor contacted the Council’s Planning Enforcement team in August 2020 to raise concerns about advertisement of the site on social media. The Councillor explained the owner had advertised use of the field as a campsite for £5 per night with showers, toilets, washing facilities and a clubhouse. The local warden also reported lots of activity and development at the site. The owner did not have planning permission to use the field for this purpose.
20. Mrs Y also contacted the Council’s licensing department to query the site’s advertisement of events which she said included references to the provision of entertainment and alcohol.
21. In October 2020 two planning enforcement officers visited the site. The Council’s records show the officers advised the site owner not to undertake any further development. The Council also followed up in writing to the owner.
22. After reviewing some photographs of the site, the Council’s ‘Historic Environment Officer’ told the planning department, “the pictures clearly show the scale of what has been happening on site. If a planning application were submitted to use the land for such purposes on this scale I would most likely advise refusal on grounds of adverse effects on the character, appearance and setting of the historic character contrary to [policy] LC14”. Another officer from the ‘Natural Environment’ team also commented, “I fully support your conclusion – it’s about as adverse as you could get”.
23. Mrs Y contacted the Council on several occasions to seek an update on the Council’s considerations. In December 2020, the planning department said:

“… we have already advised the site owner that the Local Planning Authority (LPA) do not agree with the interpretation contained within the documentation supplied by the club regarding the exemptions granted to certificated sites. We have advised that a planning application instead be submitted covering the whole use of the site; and they have engaged a planning consultant to act on their behalf with regards to this matter. I am hopeful that an application will be submitted and be determined before the summer, and subject to its approval there are mechanisms to control the development through the imposition of conditions”

“With regard to the large motorhome, we are monitoring the situation with its potential sale/removal. Again, we have communicated with the owner recently expressing our concerns and advising regarding this. Whether it will be removed voluntarily as indicated is yet to be seen, however should it remain we will look to take appropriate formal actions to seek its removal. Such action would be subject to a right of appeal, which not only could overturn a Notice but also lengthens the whole process significantly; hence our preference (as with all such developments) to seek voluntary removal initially”

24. Another officer reiterated this approach, “In reference to the very large motorhome, I understand [site owner name] is seeking to sell the unit in order for it to be removed from site, and whilst we have not given a specific timescale, we will continue to monitor this in the short term and consider future actions in conjunction with any applications received more longer term”.
25. The Council contacted the site owner in January 2021, “You have previously advised that you have engaged the services of a planning agent to act in relation to the proposed planning application for the site; although to date neither an application has been submitted nor have I received any communication from an agent advising that the application is in preparation. I would appreciate if you could therefore ask your chosen planning agent to update me accordingly”.
26. A senior officer reassured Mrs Y,”... this enforcement investigation is being actively pursued. Should no planning application be forthcoming then the LPA will have to consider what enforcement action is appropriate”.
27. On 5 February 2021 the site received authorisation to operate under certificated caravan and camping exemptions. Consequently, it can have five caravans on site and up to 30 caravans or tents for specific registered events. The certificate states the site’s overall capacity must not exceed 35 units and any ‘registered event’, such as rallies and festivals, must not last for more than 28 consecutive days or 100 days in any 12-month period.
28. The certificate was granted by an organisation authorised by government to administrate campsite certificates. These enable sites to be used as caravan and camping parks without need for planning permission or a licence from the Council.
29. The organisation wrote to the Council by email on 22 December 2020 to advise, “[we] have received an application for exemption under paragraph 5 of The Caravan sites and Control of Development Act 1960 and Section 269 of The Public Health Act 1936 in your area of authority. Please find a consultation letter and map of the proposed site under consideration by the club attached”.
30. The Council did not respond to the consultation. Internal emails from March 2021 suggest the lack of response was due to error, “you may want to chat with [officer name] in enforcement. It looks like the original email was sent from planning to the planning duty officer the same day, but now sits in 'calls complete', no response having been sent seemingly” and “if a valid objection had been made the exemption could have been prevented. We perhaps need to consider what a valid objection might have looked like if one had been made? The presence of a noise abatement notice may have been a valid objection for example. My understanding is that none was made and therefore the exemption was granted in Feb 2021”.
31. Following the grant of exemption, Mrs Y reported the site owner had:
• Built a breeze block structure in the open field
• Continued to allow several caravans and motorhomes on site contrary to COVID-19 restrictions in place at the time
• Erected a new sign advertising entrance to the site
• Promoted a ‘luxury log cabin’ for rental on social media
32. Dissatisfied with an apparent lack of action, Mrs Y contacted the Council again. In February 2021 the Council advised: “I am aware of the history of the site and your concerns in respect of immunity periods and can confirm that this enforcement investigation is being actively pursued. Should no planning application be forthcoming then the LPA will have to consider what enforcement action is appropriate”.
33. Mrs Y complained to the Council. In its response the Council repeated that it was trying to resolve matters with the site owner on an informal basis but that formal action may ultimately be needed.
34. Mrs Y then complained to the Ombudsman because she felt the Council was not doing enough to resolve the problems she had reported. Mrs Y explained to us the site had continued to develop, despite the previous warnings given by the Council. Mrs Y says she knows this to be true because the site is advertising rental of a unit which Mrs Y believes has been subject to recent development.

Was there fault in the Council’s actions causing injustice to Mrs Y?

35. The Ombudsman is not a planning authority and cannot determine whether a breach of planning control has occurred and, if so, what action should be taken to resolve the breach. Instead, we investigate how the Council has considered matters and whether it has acted in accordance with the law, guidance and its own enforcement objectives.
36. We expect councils to carry out thorough investigations into enforcement complaints and consider the full range of enforcement options open to them. This can include ‘under enforcing’ which may give permission for parts of an unauthorised development but control the parts which have an impact on neighbouring properties. Even if a council decides not to take enforcement action, we expect it to record its reasons and explain its decision to any complainants. We would expect the council to do so without unnecessary delay.
37. In my view the Council is responsible for significant drift in this case. I understand the site owner is now seeking pre-application advice with a view to submitting a retrospective application to regularise some or all the breaches identified by the Council. However, I am mindful the applicant first engaged with the pre-application advice service in April 2021; we are now five months on, but the Council has not yet received a planning application. Despite this, there is little evidence of the Enforcement team taking proactive measures to progress the case.
38. This is concerning given the significance of some of the breaches and the effect on Mrs Y and other nearby residents. Internal emails reveal that Council officers have expressed concern about the impact of the campsite on the historic character of the local area. A recent consultation response sent to the local police force following the licensing application also highlighted the controversial history of the site and the previous reports of nuisance. There is no doubt the Council is concerned the use of the site is impacting others.
39. I find further fault with the Council because internal emails suggest it overlooked a consultation received in December 2020 from the organisation which granted the camping exemption. The Council did not raise any objections it had before the deadline and the organisation was not made aware of the site’s contentious past. We cannot say whether the organisation would have made a different decision had the Council responded, nor can we make any recommendations of the organisation because we have no jurisdiction to do so. However, this fault has created injustice in the form of uncertainty because we do not know if the site has been permitted to hold rallies and festivals as a result of Council fault. The Council should therefore contact the organisation on a retrospective basis to provide its consultation comments. It will then be for the organisation to decide whether it reviews the site’s status in light of those comments.
40. There is also evidence throughout the Council’s files that the officer responsible for dealing with this case has, at times, either delayed or failed to respond to correspondence about the case. This includes correspondence from Mrs Y, but also other interested parties such as Councillors.
41. In mitigation, the Council expressed some difficulties in an internal email which explained the enforcement team has, at times, operated with just one officer. In previous years, the email explains the Council had four ‘active’ officers and one assistant. The Ombudsman sympathises with the Council’s difficult situation, which was further impacted by the COVID-19 restrictions. However, there is considerable drift in this case which we consider to be service failure irrespective of the reasons.

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Agreed action

42. Within four weeks of my final decision the Council will pay £250 to Mrs Y for the time and trouble caused by its repeated failure to respond to her correspondence and provide regular and substantive updates on the enforcement case.
43. Within twelve weeks of my final decision, the Council will also:
• Arrange for a senior officer to review the enforcement case and decide upon the next course of action. This timescale should allow reasonable opportunity for the owner to submit a planning application following receipt of the Council’s pre-application advice. The Council should write to Mrs Y every four weeks to provide an update on the progress of the case; and
• Write to the organisation responsible for granting the certificated exemption. The Council should retrospectively set out what its response to the December 2020 consultation would have been, had it responded at the time.

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Final decision

44. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions I have recommended in the section above are an appropriate remedy for the injustice caused by fault.

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Parts of the complaint that I did not investigate

45. Some of the matters which Mrs Y complains about date back to 2006. The law says 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)
46. Mrs Y has explained she accepted the Council’s repeated reassurances that action would be taken, and for this reason she did not complain sooner. However, I consider there was reasonable opportunity for Mrs Y to complain about the older issues once it became evident that matters had started to drift. I do not consider there is sufficient reason to exercise our discretion further, so we have limited the scope of our investigation to matters from 2019 onwards.
47. Furthermore, the Ombudsman has not investigated the site’s recent application for a licence to serve food and drink because this was submitted in June 2021 and after Mrs Y’s complaint to the Council and us. Nor have we considered Mrs Y’s recent reports of noise nuisance. These are new matters which Mrs Y should complain to the Council about in the first instance if she has any concerns.

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Investigator's decision on behalf of the Ombudsman