Summary: Mrs W complains the Council has failed to take enforcement action in respect of an alleged breach of planning condition. She also says the Council has failed to take action relating to both an obstruction and damage to a public right of way. We found the Council failed to properly consider enforcement action relating to an alleged breach of planning condition. This caused Mrs W a degree of uncertainty and distress and so we have recommended a remedy. We did not identify any fault by the Council with respect to any alleged interference with the public right of way.

The complaint

1. The complainant, who I refer to as Mrs W, is making a complaint in relation to her local bridleway becoming unsafe. She says this is due to a Golf Club tipping soil and waste on its land which is adjacent to the public right of way. The Council leases the land to the Golf Club on which it operates and granted planning permission in March 2019 for the Golf Club to undertake landscaping works. In summary, Mrs W alleges the following:
1. When landscaping works commenced in 2021, this affected use of the bridleway as large motor vehicles blocked the path, a gate was placed across the path, signage was removed, and a large trench was created.
2. Although the obstructions to the path have now gone, the surface of the path has not been returned to its original condition and now becomes waterlogged to the point it cannot be used.
3. The mounds of earth that have been created are over 30 feet high and that rubble sometimes falls off onto the bridleway itself.
4. The landscaping works do not conform to the planning conditions attached to the Council’s planning permission.
5. Since concluding her complaint with the Council, the Golf Club has now started tipping earth on the other side of the bridleway which is not Golf Club land. Mrs W adds that other sections of the bridleway have since been worse affected with tipping on the bridleway itself causing the width of the public right of way to be narrowed.
2. Mrs W says the mounds take away from the amenity of the area and has affected her use of the bridleway. She also says the way the landscaping works were conducted has destroyed the natural habitat of various wildlife. As a desired outcome, Mrs W wants the Council to stop the Golf Club using the land illegally, and for the actions of the Council to be investigated for allowing the above interferences to continue unchecked.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6).
6. 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).
7. If there has been fault by a council which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).

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How I considered this complaint

8. I read Mrs W’s complaint to the Council and Ombudsman. I also had regard to the Council’s responses, supporting documents and applicable policy and legislation. I invited both Mrs W and the Council to comment on a draft of my decision. All comments received were considered before a final decision was made.

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My findings

Background and legislative framework

Application for development

9. Section 55 of the Town and Country Planning Act 1990 provides that planning permission is needed if the work being carried out meets the statutory definition of ‘development’. ‘Development’ includes building operations (e.g. structural alterations, construction, rebuilding, most demolition).
10. An application for planning permission for development is made to the local planning authority (LPA). This will normally be the district council or London Borough. Planning application procedure is set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015 (the Order), SI 2015/595, (in England) (the 2015 DMPO). The LPA must provide a determination on the matter following a consultation.
11. The Planning Inspector acts for the responsible Government minister. The Planning Inspector considers appeals about:
1. delay by an authority in deciding an application for planning permission;
2. decision to refuse planning permission;
3. conditions placed on planning permission and;
4. a planning enforcement notice.

National and local planning policy

12. The National Planning Policy Framework (the Framework) sets out the Government’s planning policies and how these should be applied. It provides a framework within which locally prepared plans for housing and other development can be produced.
13. Planning law requires that applications for planning permission be determined in accordance with the development plan, unless material considerations indicate otherwise. The Framework must be taken into account in preparing the development plan, and is a material consideration in planning decisions. Planning policies and decisions must also reflect relevant international obligations and statutory duties.

Planning enforcement

14. A breach of planning control is defined in Section 171A of the Town and Country Planning Act 1990 (“the TCP Act 1990”), as follows:
1. The carrying out of development without the required planning permission; or
2. Failing to comply with any condition or limitation subject to which planning permission has been granted.
15. Where there is a breach of planning control, the authority may serve an Enforcement Notice if it is expedient to do so under Section 172 of the TCP Act 1990. It is for the planning authority to decide whether it is expedient to act. Importantly, enforcement action is discretionary and a local authority cannot take enforcement action against itself. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. This provides:

‘’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 act where appropriate.’’

Rights of way

16. The relevant legislation concerning complaints about rights of way is mostly covered by the Highways Act 1980. A council’s Rights of Way team has a responsibility to ensure the public can use the rights of way network within the area it covers. The main responsibilities are:
1. to maintain the surface of a right of way suitable for its intended use.
2. to clear excess vegetation from the surface of a route.
3. the maintenance of bridges intended for use on a public right of way.
4. to enforce the removal of obstructions along rights of way that are found or reported to the team.
17. Under Section 130(a) to (d) of the Highways Act 1980, a person has the right to serve a notice on the Council requiring it to clear an obstruction. If the Council fails to do so, the complainant can ask the Magistrates Court to order it to do so.

Chronology of events

18. The Golf Club applied for planning permission for the erection of earth mounding to the north of the bridleway. This was granted in March 2019.
19. In late March 2021, Mrs W advised the Council that the approved works was being undertaken by the Golf Club. An officer of the Council visited the site and noted that while the bridleway path was open, it was being used by lorries and construction machinery and also had a layer of mud over the surface. Further, the officer observed that mounds of earth were being constructed on a strip of land next to the bridleway, though not on the bridleway itself.
20. The Council later emailed the Golf Club to advise that its actions on the bridleway were illegal. It added that this could have been avoided had the Golf Club contacted its officers to arrange a legal temporary closure and to agree the details for the reinstatement of the surface. The Council received no response to this email or a follow-up email later sent in April 2021. The Council later contacted the Golf Club by telephone and arranged a meeting with its representatives.
21. In early May 2021, a Council officer met with representatives of the Golf Club and was told that no machinery was used on the site. Further, the Golf Club explained that it had returned the bridlepath to its original condition and would attend to the mounds of earth in the coming months.
22. In mid-May 2021, the Council responded to Mrs W’s formal complaint. It said the Golf Club had left the bridleway in the same condition in which it was found. Further, the Council told Mrs W that the Golf Club was cautioned against carrying out works without a temporary path closure being put in place.
23. In early June 2021, Mrs W escalated her complaint as she remained dissatisfied with the Council’s first response. Mrs W said the impact of vehicles being used by the Golf Club on the bridleway had made it a hard muddy surface susceptible to flooding. She said before the works, the bridleway was soft and grassy. Mrs W wanted the Council to make the Golf Club return the bridleway to its original state.
24. In addition, Mrs W complained the mounds of earth erected on the land owned by the Golf Club represented a health hazard to those using the bridleway. She explained that while the mounds were not on the bridleway itself, they resulted in earth and other debris falling onto the bridleway. Due to the height of the mounds, Mrs W added that this concealed the area which made women and children in particular susceptible to harm.
25. Separately, Mrs W further explained the condition of the bridleway and surrounding area had resulted in a loss of wildlife. She added that there had also been a lack of landscaping to return the area to its original condition.
26. In July 2021, the Council issued its final response to Mrs W. It said that the works commenced by the Golf Club had breached regulations, though the matter was taken up with its representatives. The Council added that while the bridleway was impacted by the works, this had been restored. On the issue of landscaping, the Council noted the original planning application was subject to a landscaping plan. The Council therefore undertook to arrange an inspection to assess the nature of the landscaping works to see if any remedial action is required in order to secure compliance with the approved landscaping plan.
27. On the matter of wildlife, the Council noted there was no evidence to support harm to the ecology of the area. This assessment was made following a visit to the area in question.
28. In November 2021, the Council’s Right of Way officer visited the site with Mrs W in order to substantiate her concerns relating to the condition of the bridleway.

My assessment

Time limitations

29. I will not investigate any issue which is central to the determination of the planning application. By law, I cannot accept a complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion in this regard. The planning application was approved in March 2019. At the time of complaining to the Council in March and June 2021, Mrs W raised concerns relating to the mounds of earth created by the Golf Club. However, the creation of the mounds had planning permission and I believe Mrs W could have reasonably complained to us sooner about the manner in which the application was determined by the Council.
30. Specifically, I recognise Mrs W is dissatisfied with the Council’s determination of the planning application with respect to the height of the mounds. This part of the complaint is late because it is a matter which is central to the planning permission. I will not exercise my discretion and investigate this part of the complaint. That said, I can consider issues relating to a breach of planning conditions and any matter concerning an interference with a right of way (e.g. a bridleway) which is ongoing. This is because approved planning permission does not confer the right on a developer of land to cause an obstruction or damage to a public right of way.

Condition of bridleway

31. The Council’s planning decision does not give permission for the use of the bridleway by vehicles, and this is matter dealt with under highways legislation. The Council has a responsibility to ensure the public can use the rights of way network within the area it covers. The main responsibilities are (including to bridleways) to maintain the surface of a right of way suitable for its appropriate intended use. Further, the Council is responsible to enforce the removal of obstructions along rights of way that are found or reported to it.
32. I cannot say whether the bridleway has been obstructed or interfered with, this is the role of the Council’s officers exercising professional judgement. My role is to consider whether the Council has acted on the concerns raised and in accordance with its responsibilities about rights of ways. In my view, the Council identified a clear obstruction of the bridleway by the Golf Club while the works were being undertaken by vehicles. However, the Golf Club is not a body within my jurisdiction. I can only investigate the actions of the Council in how it addressed this issue. I am satisfied the Council made a number of attempts to raise this activity and cautioned the Golf Club against further illegal actions relating to the bridleway. There was no fault by the Council with respect to Mrs W’s concerns about an obstruction of the bridleway by vehicles.
33. As regards to the condition of the bridleway, Mrs W says parts of the right of way now becomes waterlogged and earth and debris fall from mounds on either side of the path which creates an obstruction. She also says the impact on the bridleway has meant a loss of wildlife in the area. In response to these concerns, a Council officer visited the site in March 2021 and considered the bridleway had been returned to its normal condition. Further, the Council’s Public Rights of Way Officer also visited the site in November 2021, along with Mrs W. The Council did not see any part of the bridleway obstructed and considered it had been returned to its normal condition. I do however note that Mrs W has expressed dissatisfaction to the Council with respect to the mounds of earth. That said, the Golf Club does have planning permission for the creation of these. As mentioned at Paragraph 29, I will not investigate any issue with respect to the determination of the planning permission due to time limitations.
34. I consider the Council has considered Mrs W’s concerns in relation to obstruction of the bridleway, as well as its condition. It has also visited the site on a number of occasions in order to consider and give effect to its duties under the Highways Act 1980. I recognise that Mrs W disagrees with the Council’s assessment and decisions in relation to these matters. However, I have not identified any fault by the Council in terms of how it considered her concerns. I therefore have no jurisdiction to question the merits of the Council’s decision which has been made by officers exercising their professional judgement.

Landscaping conditions

35. The planning application was approved subject to a landscaping plan and Mrs W has referenced a breach of this condition to the Council. Importantly, it is not my role to identify whether a breach of condition has occurred, or whether the Council should take enforcement action, this being entirely discretionary and where it is expedient to do so. My role is limited to identifying whether the Council followed the correct procedure, acted on concerns raised and gave consideration to the various enforcement options at its disposal.
36. Following Mrs W’s complaint relating to a breach of the landscaping condition, the Council agreed to arrange a site inspection to assess the nature of the landscaping works and to ascertain whether any remedial action was required. The Council accepts it has not determined whether the landscaping plan has been complied with. Moreover, the Council accepts this should have been followed up and compliance confirmed to Mrs W. I do therefore find fault by the Council as this omission is key to giving effect to the Council’s duty to consider enforcement action in respect of a breach of a planning condition.
37. In my view, I believe this failure has caused Mrs W a degree of uncertainty with respect to the concerns she has raised. I do find that Mrs W has suffered an injustice by reason of the Council’s fault and so I am recommending a remedy.

Premature complaint

38. As noted above, Mrs W says that since concluding her complaint with the Council, the Golf Club has started tipping earth on the other side of the bridleway which is not owned by the Golf Club. As I understand, Mrs W has not made an additional complaint to the Council in respect of this issue. The law says I cannot investigate in circumstances where the Council has not been given a reasonable opportunity to investigate the issues. I cannot therefore investigate this particular matter until such a time that Mrs W has exhausted the Council’s complaints policy and procedure. The restriction I describe at Paragraph 5 (above) applies.

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Agreed action

39. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions by 1 May 2022:
1. Provide Mrs W a written apology which acknowledges the fault and injustice identified.
2. Pay Mrs W £200 to acknowledge the uncertainty she has suffered.
40. By 1 June 2022, the Council will also determine whether the landscaping works conform to the requirements of the planning conditions. If not, the Council should give consideration to whether enforcement action is expedient in the circumstances.

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Final decision

41. The complaint is partially upheld. I found the Council failed to consider Mrs W’s concern relating to a breach of planning condition. This caused Mrs W a degree of uncertainty and distress. However, on the issues of the public right of way, the Council visited the area, conducted an assessment and did not identify any concerns under the Highways Act 1980. The Council took appropriate action to investigate Mrs W’s concerns and I have no jurisdiction to question the merits of the Council’s decision in this respect.

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Investigator's decision on behalf of the Ombudsman