Summary: Ms B complained that the Council failed to take enforcement action against an agricultural building near her property. We have not found fault with the actions the Council took.

The complaint

1. Ms B complains that Herefordshire Council (the Council) failed to take enforcement action against agricultural development near her property. She considers it was not permitted development due to its size and the fact it was being used for lambing and sheep shearing for many months of the year, not fodder storage as originally stated. These activities caused her significant noise and disturbance.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms B 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

Permitted development

6. Permitted development rights are a national grant of planning permission which allow certain development (both building works and changes of use) to be carried out without making a planning application to the council as local planning authority. 
7. The Town and Country Planning (General Permitted Development) (England) Order 2015 sets out the details of what is permitted development.
8. Under the section relating to agricultural development on units of 5 hectares or more, it says development is not permitted if it would be larger than 465m2. It goes on to say that development is permitted in this class subject to the following conditions:
• where development is carried out within 400 metres of the curtilage of a protected building, any building, structure, excavation or works resulting from the development are not used for the accommodation of livestock except in the circumstances described below:
• that no other suitable building or structure, 400 metres or more from the curtilage of a protected building, is available to accommodate the livestock; and
1. that the need to accommodate the livestock arises from quarantine requirements, or an emergency due to another building or structure in which the livestock could otherwise be accommodated being unavailable because it has been damaged or destroyed by fire, flood or storm; or
2. in the case of animals normally kept out of doors, they require temporary accommodation in a building or other structure because they are sick or giving birth or newly born, or to provide shelter against extreme weather conditions.

Enforcement

9. 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)

What happened

10. In December 2017 the Council approved the construction of a polytunnel for fodder storage on agricultural land near to Ms B’s property. The Council said it was a permitted agricultural development.
11. Following construction of the polytunnel in early 2021 Ms B complained to the Council in February 2021
12. The Council acknowledged the complaint setting out the relevant permitted development regulations and saying it would clarify the situation with the land-owner.
13. On 10 February 2021 Ms B said to the Council in an email that it was not a personal issue as her house is fully insulated and will probably not be affected by livestock being housed in the polytunnel.
14. The Council visited the site on 15 February 2021 and spoke with the landowner. They explained they were using the polytunnel under the exception rule which allows structures to be used for lambing purposes if there is no other alternative suitable structure or building available.
15. The Council wrote to Ms B explaining that it had visited the site and spoken to the landowner who said they were in the process of moving 250 sheep into the polytunnel for lambing for approximately three to six weeks which made it a temporary situation, after which the polytunnel would be empty. The Council said it was a temporary, acceptable use of the building and there was no planning breach.
16. Ms B complained again saying it was not permitted development because the polytunnel and some nearby hardstanding exceeded 1000m2 and was being used for lambing purposes. She said a full planning application should have been considered so she and other residents could have objected.
17. The Council agreed it should have measured the polytunnel and considered the hardstanding. It notified Ms B in March 2021 that it would investigate the issue again.
18. It carried out a second site visit. It confirmed the lambing use was temporary and although the hardstanding was slightly bigger than it should be it was not causing harm and it was not expedient to take enforcement action.
19. It notified Ms B and the other residents that the height and width of the polytunnel were within the permitted development limits, the hardstanding was technically a breach but not expedient to take action and the polytunnel was being used in accordance with the permitted development regulations to provide emergency accommodation for animals during lambing.
20. In June 2021 the Council received a further complaint that the polytunnel was being used for sheep-shearing. The Council visited again and found no sheep in the polytunnel. It also said the owners were moving and intended to dismantle the polytunnel.
21. Ms B then complained to us. She said the Council only considered the size of the polytunnel and not the development as a whole, it was not constructed in accordance with the details submitted but to be used permanently as a livestock shed. She said it should have been subject to the full planning process and the failure to do so had caused them 24 hour noise and nuisance, the detritus of lambing being carried by birds into their garden, along with unacceptable odours and flies.

Analysis

22. I have not found fault with the way the Council dealt with the enforcement investigation. It responded promptly to Ms B’s complaints and visited the site on three occasions. It considered the polytunnel in accordance with the relevant legislation. It explained to Ms B why it was satisfied, that it fitted the criteria for permitted development in terms of its height, size and area (the polytunnel itself, and even with the hardstanding did not exceed 1000m2) and that the structure did not constitute development of land. Finally, it explained why it was satisfied that the polytunnel, even though it was within 400 metres of residential properties, fitted the exemption for lambing for a temporary period.
23. It visited a third time to investigate the allegation of sheep-shearing but did not find any evidence to support this.
24. Ms B may disagree with the conclusion the Council reached but I do not find fault with the way it was made. It has considered the law, and Ms B’s view as to why it did not meet the permitted development criteria. It has responded to her points and given reasons why it does not agree with them. I have not concluded that the decision should be changed or that a planning application should have been submitted.

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Final decision

25. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Ms B.

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Investigator's decision on behalf of the Ombudsman