Summary: Mr X complained the Council failed to take appropriate and timely enforcement action regarding a breach of planning control near his home. He says his outlook is now unsightly and he has spent a significant amount of time and effort progressing the matter with the Council. We find the Council failed to update Mr X with the action it was taking causing injustice to him. We recommend it apologises to Mr X, pays him £300 and acts to prevent recurrence.

The complaint

1. Mr X complains the Council failed to take appropriate and timely enforcement action between 2018 and 2021 regarding the:
• placement of hard standing
• use of heavy plant machinery and scrap, and;
• conversion of a poly tunnel into a solid roofed structure

on green belt land near his home.

2. He says his outlook is now unsightly and he has spent a significant amount of time and effort progressing the matter with the Council.

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What I have investigated

3. I have investigated Mr X’s complaint about the Council’s failure to take appropriate and timely enforcement action regarding a breach of planning control near his home from 2018 to 2021.
4. I have exercised discretion to investigate matters from this point but will not investigate the older matters for the reasons explained at the end of this statement.

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The Ombudsman’s role and powers

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. We cannot question whether an organisation’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)
8. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
9. If we are satisfied with an organisation’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

10. During our investigation we spoke to Mr X to discuss his complaint and considered any information he provided.
11. We made enquiries of the Council and considered its response. We also consulted the relevant law and guidance around planning and planning enforcement, which I have referenced where relevant in this statement.
12. Mr X and the Council had an opportunity to comment on a draft decision and I considered any comments before making this final decision.

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What I found

Planning enforcement

13. Breaches of planning control are defined in S171A of the Town and Country Planning Act 1990 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.
14. 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.

National Planning Policy Framework

15. The National Planning Policy Framework (NPPF) sets out the government’s planning policies for England and how these are expected to be applied.
16. The Framework says:
• 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.
• The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open. The essential characteristics of Green Belts are their openness and permanence. (paragraph 137)
• One of the purposes of the Green Belt is to assist in safeguarding the countryside from encroachment. (paragraph 138 (c))
• Inappropriate development is harmful to the Green Belt and should not be approved except in very special circumstances. (paragraph 147)

Council’s Planning Enforcement

17. The Council publishes information about planning enforcement on its website. This says:
• Its power to take 'formal enforcement action' is discretionary, and only to be used when it is 'expedient' to do so. Government advice is that any action taken should be appropriate to the scale and impact of the unauthorised development.
• It must make a judgement in each case about the extent of how a development harms the amenities of nearby residents and the special qualities of the landscape and buildings in the area.
• It is not always possible to anticipate how a particular case will develop and the timescale for resolving a complaint can be difficult to predict.
• Investigating complaints is often complex and time consuming. In order to make most effective use of staff resources, it is usually necessary to give priority to those cases where the greatest or irreversible harm is being caused. The following is a guide to how cases are prioritised:
• Category A: unauthorised demolition, substantial or irreversible alterations to a listed building; unauthorised works to protected trees or trees within a conservation area; unauthorised demolition within a conservation area causing irreparable harm.
• Category B: unauthorised removal of protected landscaping features; minor alterations to a listed building; ongoing unauthorised engineering works; non-compliance with approved plans; breaches of planning conditions
• Category C: material change of use, for example a business is being operated from a dwelling; unauthorised development which is complete; adverts; satellite dishes; untidy land; any other breach of planning control

Time limits for enforcement

18. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.

Green belt policy

19. Some areas of land are designated as ‘green belt’ land. Green belt land is subject to enhanced planning controls, the purpose of which is to prevent urban sprawl by keeping the land open.
20. Government guidance sets out exceptions to development in the green belt, which include:
• Buildings for agriculture and forestry;
• Facilities for sport and recreation;
• Alterations to or replacements of existing buildings;
• Limited infilling or redevelopments of previously used sites (brownfields sites).

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What happened

21. Mr X lives next to a field, on green belt land, which he says has been unlawfully developed over the past 16 years. He says the field is in two parts. One part (field A) is used for the owner’s landscaping business, with hardstanding areas, scrap metal, bricks, large machinery, skips and building materials. The second part (field B) closest to his property, is mostly field with some hardstanding that has increased in size over time.
22. Although I am not investigating matters prior to Mr X’s complaint in 2018, for background purposes I have viewed the Council’s records of visits to the field prior to 2018. The records say in February 2017 the Council visited the field and saw that topsoil had been scraped from it and hardstanding laid with skips standing on it. The Council advised the field owner, during the visit, to remove the hardstanding and put the topsoil back within three weeks.
23. The notes also say, ‘Aerial pictures show there was an area of hardstanding behind the hedge in 2011 and before, but not as large as the area that has been created’.

2018

24. Mr X complained to the Council about the hardstanding in field B at the end of 2018. Mr X says he received an initial response in November 2018 saying the department would aim to make in initial investigation within 28 days.

2019

25. Mr X did not receive any further communication, so he contacted the Council several times in early 2019, with no response.
26. In March 2019 the Council apologised and told Mr X it would provide him with an update on his complaint. He did not receive an update and emailed the Council again in May.
27. In June 2019 the Council contacted Mr X and arranged a meeting at his property. Mr X says the Council decided a visit to the field owner was necessary to view the site clearly.
28. Mr X heard nothing further and in August 2019 contacted the Council with more information about the use of heavy plant machinery on parts of the field. The Council apologised for the delay in responding and said it had now arranged a site visit.
29. The Council’s record of the site visit noted field B had topsoil spread over it, but the hardstanding had not reduced and had agricultural machinery and other materials stored on it. The record also said field B was less than one hectare in size, and it did not consider the hardstanding as permitted development.
30. On 13 August the Council wrote to the field owner. It said to avoid further action the hardstanding should be removed from field B and the land restored to its condition before the development took place, within three months.

2020

31. Mr X contacted the Council in January 2020 and said the hardstanding and associate machinery remained on field B. He received no response and emailed again in February. The Council responded saying it planned to visit the site again and would update Mr X after the visit.
32. The site visit did not take place and at the end of March the Council contacted Mr X explaining that because of Covid, there may be some delay in following up the complaint but did not say why.
33. Mr X waited for another update and then in November contacted the Council again. He complained about the hardstanding, continued use of machinery, and a poly tunnel now converted into a solid roof structure. He did not receive a response and contacted the Council again in December.
34. The Council emailed Mr X explaining the planning officer was away long term and it was assigning the case to another officer. It said the officer would ‘review the whole picture at the site and take the matter forward’.

2021

35. The Council visited the site in January 2021. Records from the visit show the hardstanding was still present on field B, with machinery and crates stored on it. It noted piles of earth in the far east of the field and a poly tunnel, which now had a metal roof. The Council spoke to the owner who agreed to move the machinery, other items and hardstanding within four months.
36. Mr X spoke with the new officer in January 2021 and followed up with an email providing some history to the field. He explained he could see from aerial photographs, hardstanding in field B which was not there before 2015.
37. The Council responded to Mr X advising field B contained a strip of hardstanding in 2011. Photographs and an ariel image from 2014 also showed the hardstanding, the same size then as it was in 2011. It said it would contact Mr X again in due course.
38. The Council sent a letter to the field owner in February after its site visit. It said it had found the following breaches:
• Laying of hardstanding and storage of machinery and other materials in field B- It explained aerial photographs showed the hardstanding had been ‘considerably extended within the past four years’.
• It accepted the narrow track which appeared to have been laid in 2010/2011 may have achieved lawfulness however, the recent development was liable to enforcement action.
• It directed the field owner to remove the increased area of hardstanding and for it to not extend more than 3.5 metres from the boundary.
• No machinery should remain on the field.
• Alteration of Poly Tunnel- It said evidence showed the alteration took place in the last four years and is liable to enforcement action. It directed the field owner to remove the solid roof.
• It gave until 1 June for the works to be done and said any failure would result in formal enforcement action to rectify the breaches and harm to the green belt.
39. The Council visited the site at the beginning of June but could not tell if its warning had been complied with. It wrote to the field owner to arrange another site visit.
40. In response, the Council received a letter from a planning consultant on behalf of the field owner. It said the owner planned to send a planning application to keep the strip of hardstanding in field B within 28 days. It agreed most of the items on field B related to the landscaping business and needed moving but gave no timescale for this.
41. On 24 June, the Council updated Mr X on the information received from the planning consultant. Mr X then contacted the Council as he was unhappy with further delay and expressed concern at any planning application for the hardstanding. He also asked what was happening with the solid roof on the poly tunnel.
42. On 30 June, the Council emailed the planning consultant and said it would await the planning application but planned to give the field owner three weeks to remove the items from field B. It also queried why it had not mentioned the poly tunnel.
43. The same day, the Council emailed Mr X. It said in summary:
• The current enforcement case concerns the laying of hardstanding within field B and the storage of scrap and landscaping materials in the same field.
• The hardstanding is operational development with a time limit of four years. Aerial photographs show an area of hard standing in 2016 which is now out of time to enforce. It will take no enforcement action as the hardstanding has now achieved lawfulness through time.
• The storage of scrap and landscaping material is a separate matter and is a material change of use of the land. Evidence shows this breach occurred within the last 10 years and within time to take formal enforcement action, in the event of non-compliance.
• It will carry out a site visit at the end of the extended timescale and if the breach remains, authorisation will be sought to serve a formal enforcement notice.
• The solid roof on the poly tunnel occurred in the last four years and it asked for the field owner to remove it, in its warning letter. The officer will decide whether it is expedient to take enforcement action when visiting the site.
• Any historic enforcement cases for the field have now achieved lawfulness and are immune from enforcement action.
44. In July the planning consultant emailed the Council. They said:
• The field owner cleared the hardstanding of machinery.
• They challenged the Council’s view on the poly tunnel roof and said poly tunnels are buildings which are maintained as permitted development. It asked the Council why a metal roof needed planning permission.
45. The Council visited the site on 3 August. Council records show the land was cleared of scrap and landscaping materials with only agricultural vehicles and equipment now stored on the field B. Photographs I have seen, taken at the time of the visit also show this.
46. The Council wrote to Mr X in August to provide an update after the site visit, it said in summary:
• It did not consider the breach of the metal roof on the poly tunnel to cause any material harm and does not consider it expedient to take enforcement action.
• The hardstanding next to the road is out of the four-year time limit for the Council to take action against operational development. Aerial photographs show a strip of hardstanding was present in 2011 and the expanded area was visible in 2017. It cannot take any action by enforcement as the hard standing has achieved lawfulness through time.
• The field owner complied with instructions for the material change of use and the land is clear of scrap and landscaping materials. There are one or two pieces of agricultural machinery on site which it considers lawful and suitable within the green belt.
• If Mr X has any future concerns about the land being used for anything other than agriculture, he can contact planning enforcement who can open a new case.
47. In a further response to Mr X, the Council said in summary:
• It understood Mr X felt aggrieved the field owner carried out adaptations to the poly tunnel without planning permission however, a breach did not mean enforcement action is an absolute. Formal enforcement action is at the discretion of the Council and should only be used if there is evidence of material harm.
• The increased hard standing was present in February 2017. Any appeal against an enforcement notice is likely to be successful, and satisfy the inspectorate, should the owner provide a dated photograph or aerial photograph showing the hardstanding in place.
• Use of the original site, field A, as a landscaping business is subject to the 10-year immunity rule. From aerial photographs and officer’s photographs from 2010 the site and associate buildings have been in place over 10 years and on that basis an appeal against an enforcement notice would likely be successful.
• Harm resulting from intensification is difficult to prove and any ongoing issues are best dealt with by the Council’s public protection department who can assess whether it constitutes statutory nuisance.
48. Mr X responded to the Council questioning its decision and asking, among other things, why the Council had changed its opinion now, from the opinion it had in 2019.
49. He did not receive a response, so sent a formal complaint through the Council’s online system in September.
50. Mr X chased the Council for a response to his complaint in November.
51. The Council provided a level 2 review of Mr X’s complaint in November. It said:
• The Council’s corporate complaints procedure cannot investigate planning breaches.
• The case is now closed and Mr X has been updated.
• Should noise disturbance occur the Council’s Environmental Protection Team may be able to help in the meantime.
• The planning enforcement service faced a growing number of reports and issues with staffing. In this case the team received a significant number of emails in relation to the site and it was not possible to respond to every email.
52. Mr X remained unhappy with the Council’s response as it did not address his questions from his last email and so brought his complaint to the Ombudsman.
53. Mr X says the Council made a decision about the hard standing, scrap and machinery in 2019 but then changed its position in 2021, saying it was out of time. He says he wants an admission from the Council, whether they were right or wrong. He says the Council has allowed the development of the site, not in line with green belt restriction on the land.
54. Mr X provided copies of aerial pictures of the land. The aerial picture from August 2015 shows a strip of hardstanding in field B. An aerial picture from 2016 shows the hardstanding strip has increased significantly in size.
55. In response to our enquiries the Council said:
• The breaches that occurred on the site were some distance from the complainant’s property.
• The cases are a low priority- category C of the Council’s enforcement policy.
• The storage of farming machinery on an unauthorised hardstanding does not create significant harm to residential amenity.
• Other alleged unauthorised works are at a significant distance from residential properties.
• The site is well screened and not generally visible from public view.
• Any harm to the green belt is extremely limited.
• The works to the poly tunnel roof are extremely insignificant and highlight the neighbour dispute element of this case as opposed to genuine harm to visual amenity.
56. The Council did not include any of the above explanations in the responses it provided to Mr X.
57. In response to a draft decision, the Council agreed communication with Mr X was not clear but said the delays were because it had been trying to work with Mr X’s neighbour on an informal basis after it decided formal action was inappropriate. It acknowledged leaving the complaint open rather than closing it and explaining its conclusions would have led to uncertainty for Mr X. It also provided system notes to show the actions taken and decisions reached regarding whether to take formal action.

Was there fault in the Council’s actions causing injustice to Mr X?

58. The Ombudsman is not a planning authority and cannot determine whether a breach of planning control has occurred and, if so, what action should be taken to resolve the breach. Instead, we investigate how the Council has considered matters and whether it has acted in accordance with the law, guidance and its own enforcement objectives.
59. We expect councils to carry out thorough investigations into enforcement complaints and consider the full range of enforcement options open to them. This can include ‘under enforcing’ which may give permission for parts of an unauthorised development but control the parts which have an impact on neighbouring properties. Even if a council decides not to take enforcement action, we expect it to record its reasons and explain its decision to any complainants. We would expect the council to do so without unnecessary delay.
60. The Council is responsible for causing Mr X significant uncertainty by failing to keep him updated. From when Mr X complained to the Council in 2018, there was a delay of almost seven months until he received any contact from the Council about his complaint and nine months until the Council visited the site.
61. The Council took no action to update Mr X on the complaint during 2020 and Mr X waited eight months to hear anything further, but only after chasing the Council, then in 2021 the complaint was closed. While the Ombudsman sympathises with the difficulties arising from the Covid pandemic, the delays remain significant.
62. The Council says in its policy, the timescale for resolving a complaint can be difficult to predict and it is usually necessary to give priority to those cases where the greatest or irreversible harm is being caused. However, waiting seven months for an initial response, and almost three years for complaint closure is significant undue delay and this is fault.

Placement of hardstanding

63. The above fault has created injustice to Mr X in the form of uncertainty because he did do not know, whether it would have taken formal enforcement action regarding the hardstanding before the four year limit for action was up. In its response to Mr X the Council simply said it was now out of time to take any action.

Use of heavy plant machinery and scrap

64. The Council did not need to decide whether enforcement action was expedient as the field owner removed the machinery. This satisfied the Council the breach was rectified.
65. It was rectified however, sometime later than it may have been, had the Council progressed the matter sooner. This is fault.
66. This fault caused Mr X undue frustration. This is injustice.
67. Mr X was also put to time and trouble in repeatedly following up his complaint over the period of the Council’s investigations.

Conversion of a poly tunnel into a solid roofed structure

68. After a site visit the Council decided the solid roof was not expedient to enforce. This was a decision it is entitled to make as formal enforcement action is discretionary. I find no fault in the Council’s decision making and it explained its decision fully to Mr X.
69. While Mr X says his outlook is now unsightly, I have not found the Council at fault for anything that affects his outlook. Machinery and scrap have been removed from the hardstanding and I cannot question the Council’s decision making on the poly tunnel roof.

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Recommended action

70. To remedy the injustice set out above, I recommend the Council carry out the following actions:
71. Within one month:
• Issue an apology to Mr X for the fault identified above.
• Pay Mr X £100 for the time and trouble caused by its repeated failure to respond to his correspondence.
• Pay Mr X £200 for the uncertainty caused by the Council’s drift in dealing with the enforcement case.
72. Within three months:
• The Council should ensure it updated complainants on key actions and decisions reached during an enforcement investigation and amend its policy to include this.
73. The Council has agreed to these recommendations.

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Final decision

74. I have completed my investigation and I find the Council at fault for failing to update Mr X with the action it was taking. The Council has agreed to the remedy set out above and I am satisfied this is a suitable resolution to Mr X’s complaint.

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Parts of the complaint that I did not investigate

75. Some of the matters which Mr X complains about date back to 2006. The law says we cannot investigate late complaints unless we decide there are good reasons.
76. Mr X says while the matters were still ongoing in 2011 he was unable to follow up the complaint until 2018. Mr X has given reasons for this, however I do not consider there is sufficient reason to exercise our discretion further, given the significant time period between complaints, so we have limited the scope of our investigation to matters from 2018 onwards.
77. I have not investigated Mr X’s complaints about noise created by the site, as this is a new matter which Mr X can complain to the Council about in the first instance.

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Investigator's decision on behalf of the Ombudsman