Summary: The Ombudsman found no fault by the Council on Mr K’s complaint about it failing to act against the owners of a plot of land in the green belt near his home on which machinery and rubble, for example, are stored. The Council investigated his reports, contacted the site owner, and visited the site before deciding formal action is not required.

The complaint

1. Mr K complains about the Council failing to take enforcement action against the owners of a plot of land near his home on which they store plant hire equipment including construction machinery, a dumper truck, a steel container, and rubble, all on green belt land over the last few years: as a result, the amenity of residents is affected.

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What I have investigated

2. I have investigated the Council’s actions from March 2020. The paragraph at the end of this draft statement explains why I have not investigated any earlier.

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The Ombudsman’s role and powers

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)
4. 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)
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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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Planning policy

6. Under the National Planning Policy Framework:

• 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. (paragraph 58)
• The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open. The essential characteristics of Green Belts are their openness and permanence. (paragraph 137)
• One of the purposes of the Green Belt is to assist in safeguarding the countryside from encroachment. (paragraph 138 (c))
• Inappropriate development is harmful to the Green Belt and should not be approved except in very special circumstances. (paragraph 147)
• A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt with several exceptions, one of which includes buildings for agriculture and forestry. (paragraph 149 (a))

7. The Council’s own planning enforcement policy has 3 guiding principles:

• Expediency: whether it is appropriate to take action considering the degree of harm the works are causing;
• Proportionality: action needs to be proportionate to the seriousness of the harm caused; and
• Consistency: taking a similar approach in similar circumstances to achieve similar results.

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How I considered this complaint

8. I considered all the information Mr K sent, the notes I made of our telephone conversation, the photographs he sent, and the Council’s response to my enquiries, a copy of which I sent him. I did not send him a complete copy. This is because some of it contains information about third parties which needs to remain confidential. I sent a copy of my draft decision to Mr K and the Council. I considered their responses.

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What I found

9. Mr K has lived in his home for about 20 years. To the side of his house is a gate to some land which is in the green belt. Green belt land is a specially designated area of countryside protected from most forms of development. It is protected to prevent urban sprawl, keeps the land ‘open’, and aims to preserve the character of existing settlements. The site is within the metropolitan district of Bolton, but residents’ houses are in the metropolitan district of Salford.
10. About 10 years ago, the land was sold to the present owner. The owner began to move items on to the land including a large steel container, an excavator, about 200 tonnes of rubble, and a dumper truck. Mr K worries the owner uses the land for tipping. When he reported the site to the Council, an officer claimed there was nothing to suggest its use as a scrap yard despite derelict machinery on site. Mr K says the Council is now arguing this is agricultural land, which it has not done before.
11. Mr K is unhappy the Council refuses to act against the owner despite threatening the previous owner with legal action for storing machinery on site. It now claims the machines are for agricultural purposes rather than construction.
12. In response to my enquiries, the Council confirmed the land is classed as agricultural. A few years ago, it granted planning consent for the erection of an agricultural building on site. There are 2 tree preservation orders (TPO) covering the site. Whenever it received a report of works and damage to trees, it investigated. A TPO is an order by a local planning authority to protect specific trees, groups of trees, or woodlands, in the interests of amenity. An order prohibits the cutting down, topping, lopping, and the wilful damage/destruction of the tree, without consent.
13. The Council also explained why it took enforcement action against the previous owner and not the current owner. It decided the previous owner used the land solely for vehicle storage. The current owner’s main use is agricultural with vehicle storage ancillary to this use.
14. The Council received reports of nuisance from the site but, as each complainant lived in Salford, it passed it to that council to investigate.
15. The evidence shows:

2020:

• March/April: Mr K contacted the Council about the owner parking a tractor and 2 large tyres up against a tree protected by a TPO.

He also reported the felling of a tree on site. The Council responded saying because of Covid-19 restrictions, officers could not visit the site.

• May: Mr K reported the felling of another tree. This time officers promptly visited the site and were satisfied the owner had consent to remove it. Officers were satisfied no other trees appeared to have been felled or removed. Tyres propped against a tree were not causing damage. Officers decided there was no breach of planning control.

Following further contact from Mr K, officers arranged a site meeting with the owner to walk through and check the entire site.

• June: The Council received a report about the dumping of building waste near the gate entrance. Mr K also contacted the Council about the owner not having consent to run a business from the site. He claimed the owner stored machinery on it and sold eggs from the site.
• July: The Council told Mr K a tree and woodland manager and a planning enforcement officer visited the site. They saw some trees blown over with the weather, 3 trees dying of natural causes, and a tree felled near Mr K’s property. Another tree on site was damaged. Officers were satisfied there was no breach of planning control. They also recognised there were evidential problems proving who had damaged the tree.

They advised the owner about the need for caution when working near protected trees or when leaving stationary farm equipment close to them. They were told the trailer would be moved off site for repairs.

Officers also considered Mr K’s report of the owner building a fence. They found no breach of planning consent. The owner did not need consent to store timber and 2 liquid containers on site. The stored timber did not amount to a fence.

The officers: saw several machines on site, most of which were in poor condition; understood the machines are used as part of the lawful use of the site; saw no scrap machines or evidence of the site used as a scrap yard; and were satisfied there was no change of use of the site.

Mr K disputes this assessment and notes: the digger on site has not been moved since the sale of the land; the mini-excavator and larger one have not moved for 2 years; the large excavator has no engine; these are construction machines, not agricultural ones; they are stored in the open against green belt rules.

• October: The Council received another report about damage to trees. This is still under investigation. There is evidence of an officer contacting the owner to arrange a site visit.
• December: Officers carried out a further site visit. This found some earth works were done on a bund and a drainage channel. There was no tree damage. The Council decided planning consent was not needed for the works. It noted the removal of machinery previously stored in the centre of the site.

Analysis

16. The Council has discretion about whether to take enforcement action or not. The first stage is to establish whether a breach of planning consent has taken place or not.
17. I found no fault on this complaint and in reaching this decision, took the following in to account:

Agricultural use

18. The Council decided the land has an agricultural use which has important consequences for how it approached and considered Mr K’s reports about what the owner was doing on site. Although some of the evidence I considered predates the March 2020 cut-off date for this investigation, I consider it necessary to refer to some evidence before this date to put the Council’s approach in to context.
19. I read a planning officer’s report on an application for the site submitted a few years ago for an agricultural building. The land has no building on site to use. The building’s purpose was to store machinery, tractors, trailers, as well as animal fodder. It noted the presence of breeding sows on site with pigs reared for the meat market. The owner sold more than 100 pigs in the previous year.

The report referred to section 336 of the Town and Country Planning Act 1991 which defines ‘agriculture’ for planning purposes as, ‘the keeping and breeding of livestock’, which includes any animal kept to produce food and the use for woodlands where that use is ancillary to farming the land. The building was needed to meet the codes of practice issued by the department of environment, food, and rural affairs for livestock.

20. The report confirmed the land’s use for agricultural purposes and improved grassland which allows for grazing.
21. The report also noted guidance sets out machinery and equipment ancillary to agricultural activity must be stored and maintained in an appropriate manner to support the delivery of the necessary conditions for livestock. This means suitable development is needed for the storage of equipment and machinery needed to manage the land and herd. The Council granted consent.
22. This evidence, therefore, shows why the Council considers the site to have an agricultural use.

Machinery/vehicles

23. I am satisfied the Council properly considered Mr K’s reports about machinery on site and decided there was no change of use. The evidence I have seen shows this is an issue dating back many years. Officers visited the site in 2018, for example, following a report about stored scrap and redundant construction vehicles. The Council found no breach.
24. In 2020, officers could not initially visit the site because of national Covid-19 restrictions but, later did so. In July, for example, officers again visited, saw a trailer had been moved and noted the poor condition of the machinery left in the open on site.
25. In its complaints response, the Council noted the machinery was not in permanent use. It told Mr K it was not unusual for farmers to repurpose machines and remove their engines while stored, reinstalling them when needed. In planning terms, the presence of an engine makes no difference.
26. I have also noted while Mr K complains the owner is running a plant hire business from the site, he also complains machinery not moving for several years.

Containers

27. I am satisfied the Council properly considered reports about containers on site and decided their presence was not a change of use and were ancillary to its main use as agricultural.
28. This is another long running complaint. I say this because again, while outside the time frame for this investigation, I note the Council investigated Mr K’s reports about containers on the site as far back as 2014 when it decided to take no further action. It decided the container was mobile, as it was on a trailer, so would not need planning consent.
29. The evidence shows the Council’s acceptance of a small amount of machinery and container not amounting to a breach of planning consent because they are ancillary to the land’s main use.

Rubble

30. I note from 2014, the Council decided the presence of rubble was not a breach. This is because the laying of hardcore to make a passage over muddy areas for agricultural purposes requires no consent.
31. I am satisfied from correspondence I have seen, which I cannot disclose, that the Council considered this report and satisfied itself this is not currently a breach of consent.
32. The Council wrote to Mr K explaining the owner is in the process of constructing a hard standing to a pond to help erect a fence on the land. The letter also explained the provision of a hard surface on agricultural land does not require planning consent as it comes within permitted development rules. Permitted development means certain types of works can be done without the need to apply for planning consent, provided they fall within certain limits.

Trees

33. The Council provided information dating as far back to 2012 of reports received of damage and the felling of protected trees.
34. Since 2020, it received, and investigated 2 reports, one in April and the other in October. One found no breach and the other is still under investigation.
35. The evidence satisfies me the Council took reports about damage to protected trees seriously by visiting the site, contacting the owner about it, and investigating the reports.

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Final decision

36. I found no fault on Mr K’s complaint against the Council.

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Parts of the complaint that I did not investigate

37. I investigated the Council’s actions about which Mr K complains from March 2020. I have not investigated any earlier complaint because 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.
38. Mr L complained to us in March 2021. I saw no good reason to investigate any earlier Council action.

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Investigator's decision on behalf of the Ombudsman