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Bolton Metropolitan Borough Council (21 003 923)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 10 Dec 2021

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s failure to protect his amenity from a business that has changed the use of land without planning permission. We ended our investigation as the enforcement action is ongoing and there is no evidence of fault in the way the Council has acted so far.

The complaint

  1. Mr X complained about the Council’s failure to protect his amenity after a nearby business changed the use of their land without planning permission.
  2. Mr X said the use of the site causes noise, smells and general disturbance to him.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • further investigation would not lead to a different or meaningful outcome, or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

  1. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and discussed the case with a planning manager.
  2. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

  1. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • Access to the highway;
    • Protection of ecological and heritage assets; and
    • The impact on neighbouring amenity.
  3. Planning considerations do not include things like:
    • Views from a property;
    • The impact of development on property value; and
    • Private rights and interests in land.
  4. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  5. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
  6. Councils have a range of options for formal planning enforcement action available to them, including:
    • Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
    • Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
    • Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
    • Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
    • Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.

What happened

  1. Mr X noticed a change in the way a business near his home used its land, just before the COVID-19 lockdown in 2020. Mr X said that the use of the site caused disturbance from noise and smells.
  2. Mr X reported what had happened to the Council’s planning enforcement department in June 2020.
  3. A planning manager checked records on the Council’s document management system and gave me details and dates from the Council’s enforcement files. The information related to investigations, a site visit, discussions and assurances from the site owner and their agent, and details about planning applications.
  4. The planning manager explained that although liaising with the owner and agent, and waiting for the outcome of planning applications had inevitably taken time, officers had maintained planning control by serving a Planning Enforcement Notice in September this year. The Council provided an account of its actions, which I have discussed with Mr X. The notice had now come into effect and the Council was waiting for a 90 day time limit to expire before deciding what action it would take if the breach continued.

My findings

  1. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
  2. Before we begin or continue our investigations, we consider two, linked questions, which are:
    • Is it likely there was fault?
    • Is it likely any fault caused a significant injustice?
  3. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
    • not to investigate; or
    • to end an investigation we have already started.
  4. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
  5. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act. We expect councils to act without undue delay.
  6. I should end my investigation because the enforcement action is ongoing. Further investigation is unlikely to result in a finding of fault. This is because the Council has followed the decision-making process we would expect and I have seen no evidence of delay, so far, as the Council can account for its actions and activity throughout its involvement.

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Final decision

  1. I ended my investigation, because the Council’s enforcement action is ongoing and there is no evidence so far of fault in the decision-making process.

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Investigator's decision on behalf of the Ombudsman

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