Summary: Mr B complains the Council has not taken enforcement action against a neighbouring property for breach of planning conditions. He says this allowed regular noise nuisance from motor racing and stopped his business being able to operate. The Ombudsman does not find fault in how the Council considered and managed enforcement action.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council has not taken enforcement action against regular motor sporting events on neighbouring land, in breach of planning permission. Mr B says he started a wedding events business, which could not continue due to the noise from the motor racing. Mr B says this meant he suffered a significant loss of income and a loss of amenity to his home.

Back to top

What I have investigated

2. I have investigated the Council’s actions since it identified a breach of planning control and issued an enforcement notice in October 2020. I have referred to the history of the site going back to 2015 for background purposes. A significant part of Mr B’s complaint is about the decision the Council took in 2015. I have not investigated this far back for the reasons set out in the final paragraphs of this statement.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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)

Back to top

How I considered this complaint

6. I considered the information Mr B provided and spoke to him about the complaint, then made enquiries of the Council. I sent a copy of my complaint to Mr B and the Council for their comments before making a final decision.

Back to top

What I found

Law and Guidance

7. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.

8. 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.
9. Government guidance says: “Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework July 2021, paragraph 59)
10. Councils have a range of options for formal planning enforcement action available to them, including Planning Enforcement Notices where there is evidence of a breach, to require action to remedy it.
11. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, local planning authorities have no control over these matters. Permitted development rights include the use of land for motor car and motorcycle racing, and the provision of any moveable structure on the land for this purpose, for no more than 14 days in a calendar year.

Background

12. Mr B complained the Council about the use of neighbouring land for motor racing in 2015. The Council did not take enforcement action against the motor racing. It asked the owner to apply to regularise works that were already completed to resurface access to the land. However, it did not consider it was expedient to enforce this, as there was already an existing access. It had only been resurfaced. The Council says that in the past motor racing took place in line with the 14-day allowance under permitted development rights.

13. Mr B says that around that time he started a wedding events business on the site of his home and held three successful events. However, due to the frequency of motor racing, and the noise created, it was not viable to continue with the business, which led to a significant loss of income. He says the Council was wrong not to take enforcement action against the owner and that caused the loss of income.
14. In 2020 Mr B made a further complaint to the Council about racing at the site. The Council visited the site and found there were several buildings adjacent to the racing track and land for was significantly re-contoured. The Council therefore found the owner had carried out a development that permanently changed the use of land from agriculture to a motor racing track. It also found evidence the frequency of events may have exceeded the permitted development rights
15. The Council served an enforcement notice on the owner in October 2020. The notice required the owner to cease the use of land for motor sport activities, remove the associated buildings and restore the land to its original levels.
16. The owner appealed the enforcement notice to the Planning Inspectorate. In 2021 the owner informed the Council of works completed to satisfy the terms of the enforcement notice. The Council visited the site in May 2021. It found that all the buildings and paraphernalia associated with the motor sport activities were removed. However, the track had not been recontoured to its original state.
17. The Council took legal advice on whether the remaining physical changes, forming the track, would make it difficult or impossible to return to its normal, agricultural use. It found it did not have sufficient evidence that the land was in agricultural use prior to the track being created or that the land could no longer be farmed. Therefore, it could not make the argument that the remaining track represented a permanent change of use.
18. The Council also considered whether the works to create the track amounted to engineering works without planning permission. It found that it would be difficult to successfully make this argument and that, in any case, it would not be expedient to enforce against the existence of the track, while any motor sport activities did not take place with sufficient frequency to exceed permitted development rights. The Council therefore withdrew its enforcement notice. It informed Mr B and said it would continue to monitor the frequency of any motor sports going forward. The owner then withdrew its appeal to the Planning Inspectorate.
19. Mr B says the number of events has significantly reduced. However, he asks that the Council enforce the complete end to the activities and removal of the track.

Findings

20. I do not find fault in how the Council went about enforcement action in 2020 and 2021.

21. The Council identified a breach of planning control and took enforcement action against this. Following the enforcement notice, the owner removed all associated buildings and significantly reduced the number of events.
22. The enforcement notice required the owner to remove the racing track, which has not happened. However, the Council needed to consider this in the context of the other steps taken to comply with the enforcement notice.
23. I can see no evidence of fault in how the Council went about making its decision not to continue enforcement action for removal of the track. The Council has clearly set out how it considered this issue based on the current law and its own legal advice. I cannot question the merits Council’s judgement on this point or its legal advice.
24. There are permitted development rights that allow motor sport racing for up to 14 days a year. So, I cannot find the Council must enforce a complete cease to any motor sport activities taking place.
25. Both parties confirm the frequency of events are now low and likely do not exceed the 14 day permitted development rights. The Council has confirmed it will continue to monitor this and investigate further if the number of events increases.

Back to top

Final decision

26. I do not find fault in how the Council considered and managed enforcement action.

Back to top

Parts of the complaint that I did not investigate

27. Mr B complains the Council did not take enforcement action in 2015. He says the fact the Council found the motor racing was a planning breach in 2020, demonstrates that its decision in 2015 was wrong.
28. I have not investigated Mr B’s concerns about the decision in 2015 as this is out of time. Mr B could have made a complaint about the Council’s decision, firstly to the Council and then the Ombudsman in 2015.
29. I do not consider there are grounds to exercise discretion to investigate further back. Due to the passage of time, it is unlikely I could meaningfully investigate how the Council made its decision not to take enforcement action in 2015. The fact it made a different decision then, compared to 2020, does not necessarily mean there was fault with the 2015 decision. The circumstances, such as the frequency of races and level of development on the land were subject to change over time. The Council would have made its decision in 2015, based on different information and circumstances than it did in 2020.

Back to top

Investigator's decision on behalf of the Ombudsman