Summary: Ms X complains about the Council’s failure to enforce a condition of a planning permission granted by the Planning Inspectorate. There was fault by the Council because of unreasonable delay in dealing with the matter. The Council agreed to act to remedy the injustice.

The complaint

1. I refer to the complainant here as Ms X. Ms X complains about the Council’s failure to enforce a condition of a planning permission granted by the Planning Inspectorate.
2. A Planning Inspector granted permission for the use of land as a residential caravan site subject to conditions. Ms X’s land has been affected by the discharge of effluent material from the neighbouring site. Ms X is unhappy the Council failed to enforce one of the conditions of the planning permission which appears to require cessation of use of the site as a residential caravan site.
3. Ms X wants the Council to enforce the condition.

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The Ombudsman’s role and powers

4. 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)
5. 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

Planning enforcement guidance

6. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control is defined in section 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 limitation subject to which planning permission has been granted.
7. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action.
8. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2019) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’.

‘’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.”

9. Councils have a choice of different enforcement options so as to secure a satisfactory remedy for a breach of control. Not all cases will, therefore, be dealt with in the same way. The options range from taking no formal action to issuance of an Enforcement Notice.

Government guidance on planning conditions

10. Paragraph 55 of the National Planning Policy Framework makes clear that planning conditions should be kept to a minimum, and only used where they satisfy the following tests:
• necessary;
• relevant to planning;
• relevant to the development to be permitted;
• enforceable;
• precise; and
• reasonable in all other respects.
11. These are referred to in the guidance as the 6 tests, and each of them need to be satisfied for each condition which an authority intends to apply.

What I found

Background

12. The owner of a site adjacent to Ms X’s land applied for planning permission to retain use of the land as a residential caravan site for gypsy families in 2016. The Council refused planning permission in 2017. The landowner appealed.
13. In 2018, the appeal was considered by the Planning Inspectorate. The Planning Inspector allowed the appeal. This was subject to conditions. One of the conditions, condition 7, stated:

“the use hereby permitted shall cease and all caravans, structures, equipment and materials brought onto the land for the purposes of such use shall be removed within 3 months of the date of failure of to meet any one of the requirements set out in i) to iv) below:

1. within 3 months of the dare of this decision a scheme (hereafter referred to as the Site Development Scheme) shall have been submitted for the written approval of the local planning authority for:

1. hard and soft landscaping. Hard landscaping shall include means of enclosure and surfacing materials. Soft landscaping shall include identification of all trees, shrubs and hedges to be retained showing their species, spread and maturity; and new tree, hedge and shrub planting including details of species, plant sizes and proposed numbers and densities;
2. external lighting within the site;
3. details of foul, surface and waste water drainage (including grey waste water from washing/shower facilities) either by connection to a public sewer or by discharge to a properly constructed sewage treatment plant, septic tank or cesspool. All drainage and sanitation provision shall be in accordance with all current legislation and British or European Standards;
4. details of the means by which a wholesome and sufficient water supply shall be provided to all the occupied pitches within the development;
5. communal storage and collection area for refuse and recyclables; and
6. play space for children

2. if within 12 months of the date of this decision the local planning authority refuse to approve the Site Development Scheme or fail to give a decision within the prescribed period, an appeal shall have been made to, and accepted as validly made by, the Secretary of State.
3. If an appeal is made in pursuance of (ii) above, that appeal shall have been finally determined and the submitted Site Development Scheme shall have been approved by the Secretary of State.
4. The Site Development Scheme shall be implemented in full in accordance with the approved details no later than 6 months from its written approval.

Upon implementation of the approved Site Development Scheme specified in this condition, that scheme shall thereafter be maintained. No lighting, hardstandings or means of enclosure other than those forming part of the approved scheme shall be constructed or erected on the site.

14. The landowner submitted an application to discharge condition 7 in 2018. The Council advised the landowner that if a decision was not made by January 2019, and no agreement had been reached to extend the decision making period, there would be a period of 6 months in which the landowner could appeal to the Planning Inspectorate.
15. The Council is yet to decide the application. No appeal was made by the landowner.
16. In terms of condition 7, the Council told Ms X it was seeking legal advice on its interpretation of the wording of condition 7. It said it would review the Planning Inspector’s decision to determine how best to deal with the Site Development Scheme.
17. The Council told Ms X that she was out of time to complain about the matter because she knew about the decision in 2018 and there was no good reason for a delay in making a complaint.

Finding

18. I find there has been unreasonable delay by the Council in determining the application to discharge condition 7. This was fault.
19. However, I cannot say Ms X suffered a significant injustice in consequence of the delay. This is because status of condition 7 is uncertain. The wording of condition 7 is not precise.
20. Condition 7 says “the use hereby permitted shall cease and all caravans, structures, equipment and materials brought onto the land for the purposes of such use shall be removed within 3 months of the date of failure of to meet any one of the requirements set out in i) to iv)”. However, clause (ii) implies an appeal is deemed to have been made to the Secretary of State if the local planning authority fails to make a decision within the prescribed period. Clause (iii) further implies that if an appeal is made, that appeal shall have been finally determined by the Secretary of State and the submitted scheme approved by the Secretary of State.
21. While Ms X is unhappy that the Council has not enforced the part of condition 7 that suggests the use of the land should cease and the associated structures removed within 3 months of the date of failure to implement clauses (i) to (iv), clauses (ii) and (iii) are imprecise. The drafting of condition 7 does not appear to meet the requirements of paragraph 55 of the National Planning Policy Framework.
22. As the condition was drafted by the Planning Inspector, fault for its imprecision does not lie with the Council. However, it is now for the Council and the Planning Inspectorate to resolve the status of the condition.

Agreed action

23. It may be that condition 7 is unenforceable. However, Ms X and other neighbours affected by the use of the subject land should not be left in limbo. The Council said it was seeking legal advice on its interpretation of condition 7. It has since agreed to the following recommendations:
• Within four weeks of the date of the Ombudsman’s final decision on this complaint, the Council will seek its own legal opinion on the enforceability of condition 7 and, on the basis that the legal opinion provides that the condition is unenforceable, it will within a further two week period contact the Planning Inspectorate to raise the opinion and seek to agree a legal position on the condition.
• It will register a planning enforcement complaint on Ms X’s behalf. This will be done within a week of the Ombudsman’s final decision. The Council will write to Ms X to confirm the planning enforcement complaint and will keep her updated on progress of the matter.

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Final Decision

24. There was fault by the Council because of unreasonable delay in dealing with condition 7. It agreed to remedy the injustice to Ms X through action to resolve the status of condition 7.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman