Summary: the complainant, Mr X, complained the Council failed to properly consider a planning application or use its planning enforcement powers to control unauthorised development resulting in hazardous material spilling onto his land. The Council says it followed the correct procedures and considered all the information presented. We found the Council acted without fault.

The complaint

1. The complainant, whom I shall refer to as Mr X complained the Council failed to properly exercise its planning and enforcement powers to prevent unauthorised development.
2. Mr X says the Council’s failure resulted in rubber crumb from neighbouring land to spill onto his property creating a potential environmental hazard. Mr X wants the Council to exercise its statutory powers to resolve the breach of planning and environmental protection controls.

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The Ombudsman’s role and powers

3. 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)
4. 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 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. In considering this complaint I have:
• Contacted Mr X and read the information presented with his complaint;
• Put enquiries to the Council and examined its response;
• Researched relevant, law, guidance, and policy.
7. I shared with Mr X and the Council my draft decision and reflected on the comments received before reaching this my final decision.

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What I found

Hazardous waste

8. Responsibility for managing the disposal of hazardous substances usually rests with the local waste planning authority. This is usually the council with responsibility for waste management. In this case it is the Lincolnshire County Council (the County Council). The Health and Safety Executive and Environment Agency also have powers to regulate waste disposal.

Planning consents and enforcement

9. Developing land (including its material change of use) needs planning permission. Councils may grant planning permission subject to conditions about the development and use of land.
10. A breach of planning control is defined in s.171A 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 limit subject to which planning permission has been granted.
11. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under s187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates’ court
12. 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 2021, paragraph 59)

13. When deciding whether it is expedient to begin enforcement action, councils will consider several different matters. These include national and local planning policies and whether the development is likely to be granted planning permission. The Council will consider the need to achieve a balance between protecting amenity and allowing development which the Council finds acceptable in planning terms.

What happened

14. Mr X lives next door to a house which has attached to it a manege (an enclosed area for horses and riders). Mr X objected to a retrospective planning application to keep the manege which the Council granted in June 2016 and on which the Ombudsman gave a ruling in March 2017.
15. In July 2019 Mr Q, the owner of the manege applied for planning permission to move the manege. He proposed moving the manege away from the boundary with Mr X’s land.
16. The Council gave publicity to the application. While Mr X supported the application Mr X asked the Council to ensure the applicant returned the land to its original level. Mr X also raised concerns about the proposed drainage scheme, lighting, and parking. Mr X wanted the Council to include the same boundary screening in the planning conditions as those in an earlier planning permission.
17. The Highway authority and the Parish Council offered no objection to the proposal. In the planning case officer’s report, they set out in summary the objections received and the case officer’s professional view of the application.
18. The Council granted planning permission. The planning conditions attached to the planning permission said the applicant must present details for approval by the Council of the soakaway drain and erect fencing with ivy to provide screening.
19. In 2020 Mr Q moved the manege. However, Mr X says Mr Q did not move the part next to his land, instead he buried it. This meant burying the manege’s rubber crumb surface. Mr X says that raised the ground level causing the rubber crumb to spill out onto Mr X’s property. Mr X complained to the Council about the resultant rise in ground level and Mr Q’s installation of unauthorised lighting.
20. Mr X says that in August 2020 a Council officer advised him to use masks and gloves to move the rubber crumb because in his view it is hazardous. Mr X says a planning officer on visiting the site told him to record a breach of planning controls. Mr X says the officer told him the planning permission did not allow Mr Q to raise the ground. Mr X complained to the Council that Mr Q had acted in breach of planning controls.
21. In the Council’s records legal and planning officers show they considered the question of the approved ground level. In their professional view the ground level shown in the 2016 planning application settled the approved ground level. That meant they could only consider any increase above that ground level.
22. As part of their enforcement investigation the Council’s officers considered:
• The planning records and history;
• The sales details for Mr X’s property and Mr Q’s property,
• Photos taken in 2016 and afterwards to see if the ground levels had changed;
• The expert report commissioned as part of a civil dispute;
• The conditions on site through a site visit to both Mr X’s and Mr Q’s property when the officer heard from Mr X his view on the issues.
23. The Council’s planning enforcement officer visited the site and in March 2021 took a photograph. The Council said in response to my enquiries the site visit and photograph show an increase above the 2016 ground level. However, the Council decided Mr Q had not raised his land by such a degree that it crossed the threshold of ‘development’ needing planning permission.
24. Therefore, in April 2021 the Council told Mr X it would not issue a formal notice against Mr Q or ask him to make a further planning application to approve the increased ground level. The Council explained its reasons. Mr X complained. Mr X says that in reviewing how the Council had dealt with the issue the complaints service did not visit his property or measure the ground level.
25. When it considered Mr X’s complaint the complaints service reviewed the procedure by which officers had decided the application. The service did not visit the site because the service is not qualified to reach the necessary professional judgements to challenge the merits of the planning officers’ views.
26. Mr X sought advice from the Environment Agency which told him the rubber crumb buried under his neighbour’s land may be considered a waste product. It advised him to contact the local waste authority. The Council says that it does not class the rubber crumb as hazardous waste. It says the County Council which is the local waste planning authority similarly does not class the rubber crumb as hazardous waste. Both councils took no further action about the rubber crumb. In a letter to Mr X the County Council (as the local waste planning authority) says use of waste materials needs planning permission. The planning case officer’s report says covering the rubber crumb is an unauthorised development with a new description. The County Council agreed. This meant the unauthorised development could be subject to enforcement if the Council decided that was a proportionate response.

Analysis – was there fault leading to injustice?

27. My role is to decide if the Council properly considered the planning application and its enforcement powers in response to the concerns raised by Mr X. If I find the Council acted with fault I must decide if that caused an injustice to Mr X and if so, what the Council should do to address that.
28. The Council gave due publicity to the planning application. This enabled Mr X to comment on the conditions he believed the Council should place on the planning permission. It is for the planning officer in the exercise of their professional judgement to decide what weight to give to the material planning considerations when exercising delegated authority to grant planning permission. When deciding the planning permission, the Council had before it all relevant information including Mr X’s comments on what conditions it should attach. Therefore, I find the Council acted without fault in considering the application.
29. Where breaches of planning control or breaches of planning conditions occur, it does not follow they will automatically be the subject of enforcement. Enforcement powers are discretionary. Councils should use the powers in proportion to the planning harm resulting from a breach. The Council noted the increase in ground level but decided the degree of increase did not warrant enforcement action. That is a matter of professional judgement. The escape of rubber crumb they did not consider a planning harm. The enforcement officers must decide if it is expedient and proportionate to issue enforcement proceedings. Before deciding if the Council should issue enforcement proceedings, officers considered what they found when they viewed the site and the views expressed by Mr X. Plus they considered the expert advice set out in a report commissioned for use in a separate court action and information put forward by the applicant. They had before them all relevant information on which to decide if they should exercise their enforcement powers. Therefore, I find the Council decided whether to exercise its enforcement powers without fault.

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Final decision

30. In completing my investigation, I find the Council acted without fault in exercising its planning and enforcement powers.

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Investigator's decision on behalf of the Ombudsman