Summary: We found fault on Mr J’s complaint about the Council’s processing of his neighbour’s planning application. It delayed chasing the Environment Agency for its response and delayed telling the applicant about objections it and Highways raised. It also failed to make and keep a record of its assessment and decision not to take enforcement action. The agreed action remedies the injustice caused.

The complaint

1. Mr J complains about the Council delaying:
1. processing of the application for planning permission for the site which was submitted in 2021 and remains undecided; and
2. taking enforcement action for a planning breach at the neighbouring site.
2. As a result, the amount of vehicle movement along his private lane is affecting his amenities and causing financial loss as the lane is damaged.

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What I have and have not investigated

3. Usually, we would not investigate late complaints which are when someone takes more than 12 months to complain to us about actions by a council. As we received the complaint in January 2023, we would usually only look back at events from January 2022.
4. We exercised discretion to investigate the Council’s actions from February 2021 as this was the date the evidence shows Mr J making a report about unauthorised activities on the site. In addition, the issue remains ongoing, and Mr J has pursued the matter throughout that period.

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The Ombudsman’s role and powers

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)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means we look at the available relevant evidence and decide what was more likely to have happened.

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Council’s Planning Enforcement Strategy

9. The policy explains enforcement is discretionary and should only be taken where ‘expedient’. Expediency considers whether the unauthorised development causes planning harm, taking account of the Development Plan and other material considerations, such as the emerging Local Development Framework. The existence of a breach is not, in itself, a good reason to take enforcement action.
10. Government advice is that generally, formal action against a breach of planning control is the last resort. A council should first give those responsible an opportunity to put things right. Its approach will always be commensurate with the seriousness of the breach. When there are serious harmful effects, protracted negotiations will not normally delay formal action.
11. The developer has the right to submit a retrospective planning application which must be considered no more or less favourably than if the development had not already been carried out.
12. If the Council’s actions are considered unreasonable or legally unsound, then its decisions can be overturned by the Planning Inspectorate or the courts.
13. There are several possible outcomes to a report depending on the circumstances. These include inviting a retrospective planning application where there is a reasonable prospect of getting consent.

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How I considered this complaint

14. I considered all the information Mr J sent, as well as the Council’s response to our enquiries. I sent a copy of my draft decision to Mr J and the Council. I considered their responses.

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What I found

15. Mr J is unhappy because of the time taken for the Council to decide his neighbour’s planning application for consent to run a business on the site, construct buildings, and make physical alterations to the land. He is also unhappy with its failure to take enforcement action against the neighbour to stop unauthorised business activities on site in the meantime. His neighbour, and the traffic generated by his business, gains access to and from the site by passing along Mr J’s privately owned lane. The neighbour has the right of access along it.
16. The site is in an Area of Outstanding Natural Beauty. These are areas of countryside which are allocated for conservation because of their significant landscape value. It recognises their national importance and exceptional landscapes. They are also protected by law. Natural England must be consulted on development proposals which might have a significant impact on them.

Complaint a): Planning application

17. In May 2021, the neighbour (the applicant) applied for planning consent. This was for consent for the construction of several buildings connected to a business, along with access and landscaping improvements. The existing site consisted of a paddock with unmanaged and mixed grassland bordered by trees.
18. The description of the application was altered in July to include a change of use from agricultural.
19. I set out some of the chronology for the processing of this application. I have not set out every event. The aim is to show what was generally happening with the application. References to the applicant also means the applicant’s agent.

2021

• May: The Council received the planning application.
• June: It started the statutory consultation process. This involved consulting with: the Environment Agency (responded in October); the local town council (responded in July); Highways (responded in December); the Council’s own Ecology team (responded in October); Thames Water (responded in July); Natural England; Historic England (responded in March 2022).
• July: At the end of the consultation and notification period, it received 22 letters of objection. Highways raised concerns about access.
• August: Historic England objected.
• September: The Council chased the Environment Agency which had not replied.
• October: The applicant provided information about the highways which was sent to the case officer and to the Highways team. The Environment Agency objected because of the absence of an acceptable Flood Risk Assessment.
• November: There was communication with the applicant about comments from Highways.
• December: The Council told the applicant about the Environment Agency objections. Highways confirmed it had no objections.

2022:

• January: Highways wanted further information because of comments received. The applicant sent further information for Highways.
• February: There was consultation with Historic England and Conservation. Mr J sent his barrister’s opinion on the application to the Council.
• March: Historic England objected. The applicant sent updated information about biodiversity, a heritage report, and site layout, for example. Highways wanted a revised drawing for visibility splays.
• April: The Council received a revised Flood Risk Assessment from the applicant. The Council decided to reconsult because of this document. The Environment Agency wanted more time to comment as it did not have the resources to meet the deadline given. During the same month, the Council received further objections and comments from other consultees. Historic England removed its objection.
• May: The Council’s own Landscaping team responded with no comments. The Environment Agency still objected.
• June: Letters of support and objection were received as well as communication with Mr J’s agent. The Conservation officer decided there was no impact on designated heritage assets.
• July: There was further correspondence with the agent.
• August: Information about biodiversity received was sent to the ecologist for comment who wanted to wait for comments from Natural England before commenting. The Environment Agency alone was consulted again after the Council received information from the applicant.
• September: The Environment Agency asked for more time to comment because of resourcing issues.
• October: The Environment Agency still objected. The Council sent it back to the applicant to review.
• November: The Environment Agency said it would continue with its objection about flood risk until further information was sent.

2023:

• January: The applicant sent revised information to the Council to address the Environment Agency’s concerns. The Council passed this on to the Environment Agency for it to consider within 21 days.
• February: The Environment Agency maintained its objection.
• May: The Environment Agency had no objection subject to a condition.

20. In response to our enquiries, the Council explained it had not yet decided the planning application because of:

• objections from statutory consultees, which it does not consider are ‘in principle’ objections to the proposal. The case officer was happy to let the applicant resolve the technical objections by allowing requests for further information. It gave the applicant the opportunity to address the concerns raised. It accepted this has taken a considerable amount of time, mainly due to resourcing issues;
• outstanding issues which included ecology, flood risk, and archaeology;
• meetings which were needed with Historic England. It received revised statements, surveys were done, and submitted. There were numerous discussions with the applicant; and
• current resourcing issues at the Council and government bodies. This meant it took a lot longer than usual to resolve or receive comments on.

21. It also explained the case officer liaised with the Environment Agency and Ecology to try and finalise matters.
22. The Council confirmed it had no action plan which involved monitoring the application to prevent delay. It said its resources were stretched and it could not handle planning applications within normal timescales. External bodies also delayed responding because of resource problems.
23. It argued had it refused the application, the applicant could have appealed it. This would have taken more officer time on issues it believes could be resolved.

My findings

24. I make the following findings:
1. The Council was slow to chase the Environment Agency for its response once the period for consultation expired in July 2021. It only chased it in September, about 2 months later.
2. The Council was also slow to notify the applicant of the Environment Agency’s initial objections it received in October 2021. It notified the applicant in December, about 2 months later.
3. When considering the injustice these failures caused, I took account of the Environment Agency maintaining its objection to the proposal until May 2023. I also took account some of the overall delay was outside of the Council’s control as statutory consultees asked it for more time to respond.
4. Having considered this, on balance, I am satisfied the delay caused some injustice to Mr J. This is because he has the uncertainty of not knowing whether the Environment Agency might have reached the point where it had no objections to the proposal sooner but for the delay. This means the Council might have eventually reached a decision on the application sooner. In turn, this also means Mr J would then have known earlier whether it was either going to proceed with enforcement action if it was refused or, it would take no further action if it gave consent.
5. The overall delay flowing from the fault found is about four months. The Council correctly pointed out objections from Highways and Natural England continued past these time periods. While I accept this, the objections from the Environment Agency took the longest to resolve. They were not resolved until well past the resolution of the objections from Highways and Natural England.
6. It was also slow to pass the concerns raised by Highways in July 2021 to the applicant. It did not pass these on until November, about 4 months later. I am satisfied this has not caused Mr J any significant injustice. This is because the main objection which needed resolving was from the Environment Agency. Its continuing objection to the proposal only ended in May 2023, more than a year after Highways confirmed it had no objections. This means this delay did not prolong its consideration of the application overall.
7. The Council accepted it delayed dealing with this application and noted the reasons for this were lack of resources as well delay by external bodies which it believed was due to the same reason. It pointed out the application is complex, it received holding objections from external bodies, and had to consider the limited resources available to it.
8. It is too soon to decide whether the delay impacted on enforcement and caused additional injustice. At the moment, it is speculative to say the delays identified caused further injustice because this would only arise if the Council went on to refuse the application.
9. Mr J needs to consider taking legal advice about his neighbour’s use of his lane. Any dispute about the use and cost of maintaining this lane is a private civil matter that is for the courts to decide, not the Ombudsman.

Complaint b): planning enforcement

25. Mr J complains the Council failed to stop the applicant from continuing to use the site without planning consent. He argues it should have taken enforcement action as the current business use is effectively run from a residential dwelling.
26. He claims he first contacted the Council about it in July 2019 and the breaches started the year before. The Council has no record of this contact and I have seen no evidence of it either.
27. Records show Mr J first contacted it about the site use in February 2021 saying a business was being run from the property. I have seen a copy of an internal email from a non-domestic rates officer to planning enforcement alerting it to a call from Mr J about his neighbour running a business from home. An officer contacted the neighbour and discovered there was a breach of planning consent.
28. In April, Mr J’s planning agent wrote to the Council about the neighbouring property. It provided details of works being done on site including the felling of trees and asked for enforcement officers to visit. The Council visited, although I have not seen a formal record of it, and considered a material change of use had taken place on the site.
29. In May, the neighbour sent the Council a planning application.
30. The Council has not taken enforcement action against the applicant as it is waiting for a decision on the planning application. If planning consent is granted, with conditions the applicant complies with, then this would resolve the situation. If planning consent is refused, with planning issues not resolved through negotiation, and the applicant continues to use the site, then the enforcement team will press ahead with formal enforcement action.
31. Mr J raised several issues with the Council’s approach to enforcement which included:

Previous consent:

• The Council granted planning consent more than ten years ago for the use of stable buildings on the neighbour’s site. A condition on the consent said this was granted only for their private use and enjoyment. He noted the reason for this condition was because any commercial use would give rise to fresh planning considerations. As such, he argued the Council could have considered taking enforcement action as the current use breaches this condition.
• The Council explained that application was only for the retention of the stable/hard standing area for the personal use of the neighbour. He was not looking to use it commercially. The planning officer only considered the private use and, as a matter of good practice, restricted it to that use. No assessment of its commercial use was done, and a standard condition was included in the consent. This condition said there were wider planning considerations of a commercial use which would need a fresh assessment. While it accepted a commercial use of the stables would be a breach of this condition, it would be limited to this part of the site only. It considered the correct way to proceed with enforcement was by way of wider material change of use rather than a Breach of Condition Notice.

Planning Policy Guidance (para 003 Ref ID 17b-003-20140306 and 005 Reference ID: 17b-005-20140306):

• Mr J argued the Council should have taken account of the potential impact on those affected by the breach. This is because this guidance says planning councils should, where relevant, consider the potential impact on the health, housing needs, and welfare, of those affected.
• The Council did not accept the condition anticipated potential harm if not restricted to personal use. The enforcement case would remain open while it considered the planning application. The Council also noted Mr J had never claimed the breach harmed his amenities. It noted the separation distance between the two properties is about 161 metres. It queried how, at this distance, Mr J’s residential or visual amenity was affected.
• The Council also said it was common practice, where the planning merits may be considered acceptable, for an application to be requested. This would be the appropriate way to decide material planning considerations. It maintains it would be unreasonable to take enforcement action while the received planning application is being actively considered. Taking enforcement action would likely lead to a costs application against it.

Assessment of expediency to take enforcement action:

• The Council noted an appropriate course of action is taken on a ‘fact and degree’ basis, depending on individual circumstances. The case officer decided the appropriate response was to consider the planning merits through the submission of a planning application. The Council received this application and it will include a full record of its consideration of the planning merits when it makes its decision on it. If it refuses it, the Council will move to consider whether to take formal enforcement action. It does not consider it reasonable or proportionate to take such action while it is still deciding the planning application.
• It receives more than 1,500 reports each year about planning breaches which means it is not necessary or justified, in terms of costs, to produce a written report on each one. It produces reports where expedient to pursue formal action by way of serving a notice or, when it closes a case, or on a planning application.

Use of an undertaking from the neighbour:

• Mr J raised the possibility of the Council requiring an undertaking (a formal promise or commitment) from his neighbour restricting use of outbuildings until it decided the planning application.
• The Council’s response was it cannot impose enforceable conditions through communications with the neighbour which would only raise Mr J’s expectations unrealistically.

My findings

32. I make the following findings on this complaint:
1. Councils can take enforcement action if they find planning rules have been breached. They should not take enforcement action just because there is a breach of planning control.
2. 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)
3. 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.
4. The Council was under no obligation to take formal enforcement action against the applicant.
5. I am satisfied while I have not seen evidence of an officer visiting the site following Mr J’s report, it is clear the applicant sent a planning application to the Council in May 2021.
6. From this point, the Council tried to assist the applicant with the application when statutory consultees objected and/or asked for more information or clarification. I am satisfied this follows its own policy and government guidance.
7. I would expect to see a record of the Council’s assessment of the case when it decided not to take enforcement action against the neighbour. While it said it decided it could take account of the planning merits when it considered the planning application itself, there is no formal record showing this is what it decided or why. Again, while it said Mr J had never specifically raised the potential impact the breach would have on his amenities, I would nevertheless expect to see evidence of this being taken into account anyway when reaching its decision. These failures amount to fault. I consider the injustice to Mr J from this is the uncertainty of not knowing whether a proper assessment was made when it decided not to take enforcement action.
8. On balance, I am satisfied it was not fault for the Council to consider the likelihood of the applicant successfully arguing, as a defence to any formal enforcement action, that he had made a planning application, which it had failed to decide. This is because it would have left the Council vulnerable in terms of costs had this defence been accepted. Until the planning application is decided, the applicant could argue he may very well get consent. Again, I would expect to see a record of this consideration being taken into account when it reached its decision not to take enforcement action.

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Agreed action

33. I considered our guidance on remedies.
34. The Council will carry out the following within four weeks of the final decision on this complaint:
1. Send Mr J an apology for failing to: promptly chase the Environment Agency for its response to consultation; promptly tell the applicant of the Environment Agency’s response; show a record of its assessment and decision not to take enforcement action.
2. Pay £150 to Mr J for the distress the injustice caused.
3. Provide Mr J with a likely timescale within which it will decide this application.
35. The Council will take the following action within 12 weeks of the final decision on this complaint:
1. To review what improvements it can make, both in terms of additional resources and technology, to ensure: i) the planning department chases responses from those consulted promptly without delay when overdue; ii) responses received from those consulted are passed onto applicants promptly where appropriate to do so.
2. Remind planning and enforcement officers of the need to make and retain a record showing the assessment and decision made to not take enforcement action.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I make the following findings on Mr J’s complaint against the Council:

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Investigator's decision on behalf of the Ombudsman