Summary: We will not investigate Mr X’s complaint about the Council’s decision not to remove a planning Enforcement Notice (EN) from his land, its refusal of his Certificate of Lawful Development (CLEUD) application, and its pre-application planning advice. There is not enough evidence of fault in the Council’s retention of the EN, or of significant injustice to Mr X caused by the decision, to warrant investigation. Mr X has the right of appeal against the CLEUD refusal, which it is reasonable for him to use. There is not enough evidence of Council fault in its pre-application planning advice process, or of injustice caused to Mr X by the advice, to justify investigation.

The complaint

1. Mr X inherited land from his father Y in 2019. Y’s land had been the subject of a planning Enforcement Notice (EN). Y had been fined and received a conditional discharge at court, on the condition he would apply for permission to regularise his use of the land, which he was living on. Y did not do this. The Council decided not to enforce further due to Y’s circumstances, but the EN remains in place, which Mr X discovered during probate.
2. Mr X complains the Council:
1. has not removed the EN from the land;
2. refused his Certificate of Lawful Development (CLEUD) application for the land;
3. has indicated in pre-application advice that it would refuse planning permission to develop the land;
4. wrongly considers the land to be agricultural, and at a high risk of flooding.
3. Mr X says he could not get the CLEUD because of the EN and cannot get planning permission due to the Council believing the land is in a high flood risk area. He says the matter has left him very stressed. He wants the Council to remove the EN and allow him to live on the land, in a caravan, house or cabin.

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The Ombudsman’s role and powers

4. 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
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement.

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

5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
6. 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.

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How I considered this complaint

7. I considered information from Mr X, and the Ombudsman’s Assessment Code.

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My assessment

8. A person with an interest in land with an EN can apply to a council for its removal. But there is no statutory requirement for a council to withdraw an EN. Councils are much less likely to agree to revoke an EN if the previous breach could be easily committed again. In those circumstances, removing an EN would not be expedient for a council. If the planning breach happens again, officers can enforce without the need for a new EN. Mr X has complied with the EN but the BinJ has not removed it. The Council says it is not its policy to remove ENs. I recognise Mr X disagrees with the Council’s decision, but there is not enough evidence that it was fault by the Council to follow its policy and decide not to revoke the EN. Even if it was fault for the Council not to revoke the EN, there is not enough evidence that decision caused Mr X a sufficient personal injustice to warrant us investigating. There is no significant impact on Mr X’s land and his plans for it caused by the EN.
9. Mr X applied for a CLEUD for the land, which the Council refused. We will not investigate this part of the complaint because Mr X has the right of appeal against that CLEUD refusal, an appeal to the Planning Inspectorate. If Mr X disagrees with the Council’s CLEUD decision, it is reasonable for him to use his appeal right to challenge it. I say this because the Inspectorate is the body created by national government to consider and determine such appeals. It provides the appropriate process for Mr X to pursue the permission he seeks. Unlike the Ombudsman who can only make recommendations, the Inspectorate can also make a binding decision on the matter. Mr X may wish to take his own independent planning advice before pursuing an appeal against the CLEUD decision.
10. Mr X disputes the Council’s pre-planning advice on his application to develop the land. The Council says it gave its view the development Mr X asked for advice on would not comply with relevant policies. Officers also said they would not support the development because they consider the plot is agricultural land, and at high risk of flooding. The Council provided its advice on the information available to it at the time of the request, which it was entitled to do. There is not enough evidence of fault in the Council’s pre-application advice process to warrant us investigating. Even if there has been Council fault, it does not cause a significant personal injustice to Mr X which justifies investigation. The Council giving Mr X its opinion on his proposals and the planning issues related to the land does not cause him a significant injustice.
11. I recognise Mr X disagrees with the Council’s pre-application advice, including its view on the planning designation of the land as agricultural use, and that the land is at high risk of flooding. He believes the land should be designated as garden land because the plot previously included a house, and says the land has never flooded. But the way for Mr X to test the Council’s pre‑application advice and opinions is by making a planning application for what he wants put on the land. That is the appropriate route for him to challenge the Council’s current views. If the Council refuses the permission on land use, flood risk, or any other reasons, or places conditions on the permission with which he disagrees, he would then have the right of appeal to the Planning Inspectorate.

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Final decision

12. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault by the Council in its decision not to revoke the EN; and
• the Council’s decision not to revoke the EN does not cause Mr X enough personal injustice to warrant us investigating; and
• Mr X has the right of appeal against the Council’s CLEUD refusal, which it is reasonable for him to use; and
• there is not enough evidence of Council fault in its pre-application planning advice process to justify an investigation; and
• he is not caused enough personal injustice by the Council’s pre-application planning advice to warrant us investigating; and
• the appropriate way for Mr X to test the Council’s planning advice is by submitting a planning application for the development he seeks, and then appeal against any refusal decision to the Planning Inspectorate.

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Investigator's decision on behalf of the Ombudsman