Summary: There was no fault when the Council decided to serve a temporary stop notice on Mr B to suspend the use of his land as a campsite.

The complaint

1. Mr B complains that the Council wrongly and unlawfully served a temporary stop notice regarding his short-term campsite. Mr B says the Council failed to enter into serious discussions with him before serving the notice. As such, the Council failed to act in accordance with government guidance and its own constitution, and failed to have regard to his human rights.
2. Mr B has also complained the Council has not acted fairly because it is encouraging other ‘pop-up campsites’. Mr B says the Council’s failures has caused him financial hardship.

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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. 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

5. I considered the information provided by Mr. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all comments received before issuing this final decision.

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What I found

The law and guidance

Planning matters

6. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
7. The law allows a person to use land as a campsite for 28 days a year as permitted development. However, under the Conservation of Habitats and Species Regulations 2017 (the Habitat Regulations), development in a protected environment must not begin without the written approval of the council. Local authorities are advised to take a precautionary approach where protected habitats might be affected. They should have sufficient information to assess the impact on the protected environment before approving the development, and the measures to mitigate the impact.
8. The Council adopted a mitigation strategy in May 2021. This set out various measures open to the Council to mitigate the impact of a range of development and to comply with the Habitat Regulations.
9. 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.
10. 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.
11. A council can serve a temporary stop notice where there is a breach of planning control, and the notice is necessary to immediately stop the breach to safeguard the protected environment. The notice lasts for 28 days and during this time the council must decide whether to take enforcement action. There is no right of appeal against a temporary stop notice but the person can make representations to the council. In some circumstances a person may be entitled to compensation if ceasing the activity has caused loss or damage. It is not payable where the council grants retrospective planning permission for the use or development that was subject to the stop notice.
12. Government guidance says that a temporary stop notice can have serious consequences for a business and so the council should ensure a quick but adequate assessment of the likely consequence of issuing the notice. It goes on to say:
• This does not have to be a detailed cost-benefit assessment but should examine the foreseeable costs likely to result from the notice.
• The council may choose to discuss with the person ways to overcome the objections to the use or development.
• The council should consider the extent of the adverse impact should it not issue a notice.
• A temporary stop notice cannot be used in a way that contravenes human rights. (ODPM Circular 02/2005 Temporary Stop Notice-sub heading ‘Use of Powers to Issue a Temporary Stop Notice’, paragraphs 36-41)

Planning reports

13. Councils often set out their assessments and decisions in planning reports. The purpose of the report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
14. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

Human Rights

15. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
16. We cannot decide if an organisation has breached the Human Rights Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

What happened

17. Mr B operates a campsite. It is in a special protection environment. Natural England has advised local planning authorities that any development in this area that includes overnight accommodation will have an adverse impact on the special aquatic environment. The Council says it received reports of the campsite in 2020. The Council says it had numerous discussions with Mr B telling him the use must cease. However, Mr B continued to run the campsite.
18. Mr B applied for approval in January 2021 to use the land as a temporary campsite. He needed approval to comply with the Habitats Regulations. Mr B had submitted information about how he would deal with waste from the site, and he told the Council that to his understanding, the application did not need a more in-depth assessment because it was too far from protected habitats.
19. In May, the Council refused permission. Natural England and the Council’s ecologist both objected to the application. The ecologist said Mr B had failed to address the disposal of effluent from porta-loos. Natural England said Mr B had failed to address the recreational pressure on the protected environment and there was not enough certainty about disposal of waste water.
20. The Council’s planning report says that mitigation can be secured to offset harm arising but Mr B had not given enough information for it assess what mitigation might be appropriate, because he had not given an in-depth assessment.
21. Mr B appealed to the Planning Inspector against the Council’s refusal. The Council is not obliged to suspend enforcement action while Mr B was waiting for his appeal to be heard. The Council says that it did not consider it would be appropriate to wait because of the potential impact on the protected environment.
22. Mr B told the Council he would clear the site by early June but then later said he would need to stay open for longer because he had accepted bookings. The Council warned Mr B that it might serve a temporary stop notice.
23. The Council served the notice on 2 June. The Council’s planning report for the notice says the campsite will have a detrimental impact on the protected environment. It said it had made Mr B aware on several occasions that the campsite use should not start without permission, and that it had discussed the planning situation with him.
24. During the 28-day period, Mr B gave an undertaking for mitigation of the impact of the campsite on the protected environment. Mr B applied for permission again and the Council approved this.
25. The Council has explained that it considered the government guidance which requires it to weigh up the consequences of issuing the notice against the benefit to the amenity. It says that it gave Mr B opportunities to stop using the land as a campsite. The main consideration was to safeguard the protected environment. It had not specifically requested that Mr B give an undertaking because Mr B had not given sufficient information about the impact of the campsite.
26. The Council says it also considered the impact of the notice on Mr B’s human rights. But that it had to weigh up the potential detrimental impact of the campsite. The Council discussed the issues with Mr B before it served the notice. However, Mr B had not been able to offer the Council any mitigation against the impact on the protected environment until after it had served the notice. The Council says it tried to avoid serving the notice.
27. Mr B says the Council has not served notices on other sites and encourages pop up sites. The Council has explained that it served a temporary notice on another site that too had been able to offer assurances to mitigate impact.
28. The Planning Inspector dismissed Mr B’s outstanding appeal in November. The Inspector noted that there was no evidence that the impact of the site would be significant, but they must take a precautionary approach and assume it would be so due to the protected status of the local area.

Analysis

29. The Council’s report setting out its reasons for issuing the temporary notice could have shown how it had assessed the consequences to Mr B against the benefit of safeguarding the protected environment. The Council might want to consider including this in future reports so that it can demonstrate clearly how it has complied with the government guidance.
30. In addition, Mr B says that he was using a fully licensed contractor to remove waste and there was never any risk of harm to the protected environment or to the public.
31. However, the Council had already given detailed consideration to the information Mr B had given in support of his application earlier that year, and decided that this did not adequately deal with the impact. It knew there was a lack of mitigation and that the impact had not been assessed fully. So the Council was aware of the benefit of serving the notice and the risk of not doing so. The Council must take a precautionary approach and this was noted by the Inspector on appeal. It also had to have regard to the advice of Natural England. The impact on Mr B was unlikely to outweigh the risk of the Council failing to safeguard the protected environment.
32. The Council did consider that Mr B had a pending appeal but the law is clear that the use must not start without approval and so it was open to the Council to decide that it could not hold off the temporary stop notice on the basis of the appeal.
33. The Council had discussed the planning issues with Mr B and he was aware that it might serve the temporary stop notice. Mr B says the Council did not meet with him to discuss the notice or the mitigation after it refused the planning application. Had Mr B provided the in-depth assessment required as part of the planning application, then the Council would have been able to discuss mitigation more fully. The Council was not obliged to discuss the notice with Mr B, and he had made his position clear in the planning application and appeal.
34. Again, the Council could have more explicitly referred to how Mr B’s human rights were engaged and should consider referring to this when it decides whether to serve any future temporary stop notice. However, this does not mean that it did not consider the impact on him.
35. There is no evidence that the Council served an erroneous notice, nor that it failed to follow its processes.
36. Mr B has raised concerns over whether the undertaking and mitigation were necessary. However, Mr B used the right to appeal against its refusal to give approval without this and the Ombudsman has no remit to consider his concerns.

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Final decision

37. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman