Preston City Council (21 008 374)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 28 Apr 2022

The Ombudsman's final decision:

Summary: Mr X complained that the Council failed to take enforcement action in relation to unlawful developments on land near his home. Mr X said that the unlawful uses affect his amenities. We did not investigate the complaint further because the planning decision making process is ongoing.

The complaint

  1. Mr X complained that the Council failed to take enforcement action in relation to unlawful developments on land next to his home, including:
    • an agricultural building that had changed its use to become a storage facility;
    • a stable that had been converted to an office; and
    • an open area that was used for recreational/training activities.
  2. Mr X said that his residential amenities are affected by increased noise, light pollution and traffic movements on the private access road to his home.

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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
  • we cannot show that any alleged fault has caused injustice to the person who complained, or
  • any injustice is not significant enough to justify our involvement, or
  • further investigation would not lead to a different outcome.

(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 complaint with a planning manager.
  2. Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments 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. 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.
  5. 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.
  6. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
  7. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
  8. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:
  • delay – usually over eight weeks – by an authority in deciding an application for planning permission
  • a decision to refuse planning permission
  • conditions placed on planning permission
  • a planning enforcement notice.
  1. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

Background

Unlawful storage

  1. The Council said that nearly 4 years ago, it received complaints about change of use of an agricultural building to a storage facility. Its enforcement officer visited the site but was told the use was temporary. The Council decided to take no further action.
  2. A year later, the Council received a second complaint about the same issue. After visiting the site, the Council decided there was a breach of planning control. The site occupier submitted a planning application to change the use, but this was refused. The main reason for refusal related to highway authority concerns about access to the public highway.
  3. The applicant appealed to the Planning Inspectorate, asking for the use to be approved. The appeal was dismissed. The Inspector agreed that more information was needed to ensure the access to the highway was safe.
  4. The storage use continued and after meetings with its lawyers, the Council served a planning enforcement notice.
  5. The site operator has appealed against the enforcement notice, but the case has yet to be heard by the Planning Inspectorate.

Unlawful Office and training/recreation area

  1. The Council said Mr X raised his concerns about these issues in July last year. The Council served a Planning Contravention Notice in November, and there followed discussions with the site operator and their representative.
  2. The Council has recently received planning applications for both uses. Once the applications have been validated, they will be publicised so Mr X and others may comment. The Council said it will decide the applications in due course.

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. I should not investigate further at this time because the planning processes for both the Enforcement Notice and the recent planning applications are ongoing. Until these processes have been completed, along with any time limit for rights of appeal, we cannot fully assess what has happened and how Mr X or others were affected.
  6. I should note that I have reviewed the decision making process so far, and there is no obvious evidence of delay or other fault.

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Final decision

  1. I ended my investigation because the planning decision making processes relating to enforcement action and planning applications are ongoing. Because of this, further investigation is unlikely to result in a meaningful outcome for Mr X.

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Investigator's decision on behalf of the Ombudsman

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