Summary: X complained about the Authority's handling of planning matters relating to the development and use of land next to their home. We decided we should not investigate X’s complaints further. This was because there is an ongoing planning enforcement investigation, and further investigation is unlikely to result in a finding of fault, a remedy for X or any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Authority's handling of planning matters relating to developments on and the use of land next to their home.
3. X complained that the Authority:
• failed to take enforcement action in relation to a large area of hardstanding used as a car park, and access over it is a public right of way. X said the use of the hardstanding affects their amenity as it is directly next to their garden;
• allowed unlawful development, including structures erected without planning permission;
• allowed the commercial use of the land in breach of planning conditions. X said the landowner advertises the site for commercial use. X also said the intensification of use on the land caused by the change, led to a significant increase in visits and traffic generation;
• failed to follow the law, including a leading case on the interpretation of planning conditions;
• wrongly validated a planning application, because the incorrect ownership certificate had been completed on the application form.
4. X also alleged that one of the landowners had personal and professional relationships with planning officers, in particular a senior officer. X believes this affected how the Authority used its discretion.

Back to top

The Ombudsman’s role and powers

5. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any alleged fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

6. I read the complaint and discussed it with X. I read the court case X referred to us. I considered X’s comments on my summary of their complaint.
7. I read the Authority’s response to the complaint and considered documents from its planning files. I made enquiries of the Authority and considered its response. I shared the Authority’s enquiry response with X and considered their comments. I have discussed the case with a planning enforcement officer. I interviewed a senior officer.
8. I gave the Authority and X an opportunity to comment on a draft of this decision and took account of the comments I received.

Back to top

What I found

Planning law and guidance

9. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.
10. If the development is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed. Planning enforcement officers sometimes ask developers to submit retrospective applications where they find evidence that development is not lawful.
11. Before planning authorities consider planning applications, they must check what information they are likely to need. When they are satisfied they have the information they need to consider an application, they ‘validate’ the application and the planning process begins.
12. Planning application forms include an ownership certificate relating to the application site and this must be completed by the applicant. The purpose of the certificate is to ensure that the owners of land are aware of the application. The applicant should certify whether they are the sole owner of land within the application site (certificate A).
13. If the applicant is not the sole owner/tenant, they must complete other certificates to show the ownership status of the land, and provide;
• the names and addresses of the other owners/tenants (certificate B);
• the names and addresses of some of the owners/tenants where not all are known to the applicant (certificate C);
• a statement where none of the names and addresses of other owners/tenants are known (certificate D).
14. Applicants must also certify whether the land is part of an agricultural holding.
15. If it is proven that the applicant completed the wrong certificate or provided false or misleading information, they may be found guilty of an offence and the Authority may treat the application as invalid. Any individual who is affected may seek judicial review in the High Court – the court can, at its discretion, quash the decision. Meanwhile, developers are entitled to rely on a grant of planning permission as valid and lawful, unless a court decides otherwise.
16. Authorities should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
17. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
18. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
19. Authorities may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
20. 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, authorities 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.
21. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind’ or ‘unique’.
22. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Authority to decide.

What happened

23. X lives on a house next to land that was once used for agriculture purposes. The access to the site is near X’s house. A building on the land was used for storage and offices. Just inside the entrance is an area of hardstanding.
24. X has made complaints to the Authority about the use of the site. X said the use of the hardstanding as a car park so close to their home caused them to feel unsafe.
25. X also complained that a number of planning decisions made by the Authority were affected by undeclared relationships between the site owners and a senior officer.
26. Its original position was that, because no change of use had occurred, no enforcement action was justified. However, the Authority said that if it received evidence that a change of use had occurred, it would reconsider the matter.
27. I discussed the case with a planning enforcement officer, who told me:
• this summer, the current landowners moved out, and a business moved in which advertises its service on the internet;
• the Authority consider that a change of use has occurred, and it has re-opened its case file. Its investigation is ongoing;
• they had considered allegations about buildings and mobile structures, but found no breach of planning control. The closest building to X’s home was about 50 metres away and views towards it are screened by a mature hedge, and so unlikely to cause significant harm to X;
• the hardstanding, if used for a car park for a commercial use might increase traffic flows. This could cause disturbance to X and others who shared the access road to the site.
28. I interviewed a senior officer about the allegation, that they knew and had once worked with the owner of the land, and this had affected the outcome of the planning decisions made by the Authority.
29. The senior officer said:
• as a member of the Royal Town Planning Institute, and the Chartered Institute of Housing, they were obliged to act without fear of favour. They denied the allegation and have no knowledge or recollection of working with this individual;
• after the allegation was made, they discussed it with the monitoring officer, and had followed their advice;
• it is possible the landowner/applicant had once worked for the Authority as a contractor, but the senior officer was not aware of this;
• they (the senior officer) had always held strategic roles within the Authority and had never been involved directly in planning application or enforcement decision making.
30. I also asked the Authority about X’s allegation that the wrong planning application certificates had been completed by the applicants/landowners. The Authority said:
• the Authority’ solicitor had advised that the planning authority is not an investigator of land title, but it would clearly be helpful to seek clarification where doubts were raised;
• its case officer had contacted the agent and applicant about the names in the application certificates;
• on two occasions amended certificates were sought, received, and accepted;
• on one occasion where an application was validated and decided without further clarification about ownership, this did not render its decision unlawful. This was because a challenge in the high court would be necessary before a decision could be declared unlawful, and this had not happened.
31. X sent a detailed response to an earlier draft of this decision, the main points of which are as follows:
• X did not complain about a change of use or planning applications. Their complaint was about the Authority’s role in ‘regularising’ unauthorised development.
• There are other residents affected by developments on the site.
• The Ombudsman should clarify why the Authority had previously concluded there was no breach of planning control on the site.
• The fact a new business was operating on the site was irrelevant, as the original landowners remained in control.
• Buildings on the site were erected for commercial use.
• We should name the senior officer referred to in the paragraphs above.

My findings

32. We are not an appeal body. Our role is to review the process by which decisions (including those by local planning authorities) are made. We look for evidence of fault causing a significant injustice to the individual complainant.
33. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
34. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
35. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
36. I should not investigate this complaint further, and my reasons are as follows:
• The Authority has re-opened its investigation about a breach of planning control, because evidence suggests there has been a change of use of the land. We do not normally investigate complaints where enforcement action is ongoing. This is because enforcement action can lead to further applications, appeals to the Planning Inspectorate and challenges in the courts. We cannot assess injustice caused by alleged fault until the planning process has run its course.
• I interviewed a senior officer about allegations made by X and I was satisfied with the answers they gave. I have seen no evidence to substantiate the allegations.
• As I understand, no formal complaint was made to the Authority’s monitoring officer. The monitoring officer is responsible for matters relating to the conduct of officers and members. If X has evidence to support their allegations, they can send it to the Authority’s monitoring officer.
• The purpose of completing the correct planning certificate on an application form is to ensure that those with a legal interest in the land have been notified. X was notified separately as a neighbour and was not caused a personal injustice by information provided in ownership certificates that I could remedy. In any event, whether an application is valid or not is a matter for a court to decide.
• X may come back to us after the planning enforcement process has run its course. However, we may not investigate every complaint that is made to us. This is because we normally only investigate complaints of fault that lead to a significant injustice we can remedy. Our remedies generally focus on the impact developments and land use have on residential amenities. While I can see the use of the hardstanding might impact X, the buildings and other structures they complain about are a significant distance away from X’s home, and I consider it unlikely they cause an injustice we would remedy.
37. X made comments on an earlier draft of this decision, but they made no difference to my view of this complaint. My reasons for saying this are as follows:
• X did not complain about a change of use of the land, but I have mentioned it as it was relevant to the Authority’s reason for re-opening its enforcement case.
• I am aware that other people live near the site, but X does not represent them. Other individuals may make their own complaints and/or nominate representatives to speak for them.
• I do not consider it appropriate or necessary to determine why the Authority had concluded there was no breach of control until recently. The reasons for this are twofold. First, we are not an appeal body and cannot make planning judgements on the merits of enforcement decisions. Secondly, I decided to end my investigation, mainly because there is a planning enforcement investigation ongoing. Until the planning enforcement process has run its course, along with the expiry of any right of appeal or legal challenge, we cannot begin to assess the potential injustice caused by any alleged fault.
• Though X may disagree with the Authority’s judgements, it does consider the changes brought about by the new business relevant, and it is because of these changes that it has re-opened its enforcement file.
• X believes the site has been used for commercial purposes for some time, but the Authority does not agree. The Authority may consider the status of any buildings or use of land during its current enforcement investigation.
• X would like us to name the senior officer interviewed during my investigation. We do not usually name officers in our decisions.

Final decision

38. I decided to not investigate this complaint further, because the Authority’s planning enforcement action is ongoing. In relation to other matters X complained about, I consider it unlikely I would find fault, provide a remedy or achieve any other meaningful outcome.

Back to top

Investigator's decision on behalf of the Ombudsman