Summary: X complained the Council lost planning control of a site on land next to their home that affects an area of outstanding natural beauty. We found fault, and the Council has agreed to apologise for the disappointment and frustration it caused to X. It will also review its service so that it may avoid recurrence of the fault.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained that the Council failed to take planning enforcement action within statutory time limits, and so lost control of an unlawful development on land near their home.
3. X said the main impact will be on an area of outstanding natural beauty (AONB), because the site is untidy and unsightly.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I discussed the complaint with a planning manager.
7. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning enforcement powers

8. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
9. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
10. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.
11. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning inspectors act on behalf of a government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

12. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

What happened

13. X lives next to an area of open land, on which buildings were erected without planning permission. The landowner had applied for planning permission to change the use of the land and to build a number of low-level buildings. The Council refused permission and the landowner appealed to the Planning Inspectorate.
14. The planning inspector refused the appeal, and the main reason for refusal was the adverse impact the development had on the scenic beauty of the AONB.
15. The Council’s records show that after the appeal, it wrote to X to say it intended to serve an enforcement notice. Later, the Council wrote to the parish council and said that an enforcement notice had been served and it had been upheld on appeal.
16. However, the Council said it has since reviewed its files. It said:
• no enforcement notice had been served;
• it has no record to show what happened and can only assume the claim that a notice had been served was an error or misunderstanding;
• it is now too late to serve an enforcement notice on several buildings on the site;
• it has received a planning application for other structures on the site, which has not yet been validated; and
• once this application has been validated, X will have the opportunity to comment on the use and it will consider the proposal against its local planning policies.
17. I discussed what had happened with a planning manager, who told me:
• there is about 90 metres between X’s home and the nearest buildings on the site, and there are trees on X’s side of the boundary which afford some screening;
• the Council was formed in 2019 and at the time the error occurred, it was in a state of transition;
• at this time, its enforcement team was short-staffed because of vacant posts and sickness absence;
• the Council has made significant changes recently. It now has more staff, a clear sign-off process for cases, regular one-to-one staff reviews, bi-monthly management reviews and a training programme for new staff;
• the Council has a backlog of cases that it is slowly reducing. It is working on a plan to reduce the backlog further still;
• it is also in the process of drafting a new planning enforcement policy which it intends to present to the relevant scrutiny committee at the first available meeting after the elections in May 2024.
18. In response to an earlier draft of this decision, X said:
• The trees provide effective screening in summer, but little in winter months;
• Other people are affected by the development;
• X is closer and more affected when using their garden;
• The Council ignored many of the emails X sent over the last five years.

My findings

19. We know that the Council intended to take enforcement action but did not do so. It seems likely its enforcement officer had assumed the Planning Inspectorate decision was an appeal to an enforcement notice. However, it was an appeal on a refusal of planning permission and no enforcement notice had been served. Because the Council did not serve its notice in time, it lost planning control of some of the buildings on the site. This is fault.
20. When we find fault, we must decide whether it caused an injustice that should be remedied.
21. The buildings are low, a significant distance from X’s home and their view is partially screened by trees on their land. Because of this, I cannot say X is caused a significant injustice in terms of the impact that uncontrolled development has on their residential amenities. However, X was concerned about the impact the development has on the AONB and is disappointed and frustrated by the Council’s failure to assert planning control.
22. I recommended the Council apologises for its failures and continues its review of its planning service to avoid recurrence of the fault I have found. The Council accepted my recommendations.
23. I considered X’s comments on my draft decision, but they made no difference to my view of the complaint. My reasons are as follows:
• X may be able to see the buildings from the garden, but this does not cause a significant injustice we would normally remedy. I cannot say it is unacceptable for buildings of this kind to be visible from residential areas.
• The harm caused by the development is its impact on the visual amenity and character of the area.
• I can only consider X’s complaint as an individual. We do sometimes investigate complaints from groups of people who nominate a representative. This has not happened here.
• Generally, our investigations are time limited to the period starting12 months from before the complaint was brought to our attention. We do not usually investigate complaints processes or responses unless there is evidence of widespread, systemic service failure. I checked our records and found no evidence to suggest I should begin an investigation into complaint responses or processes.

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Agreed action

24. To remedy the injustice caused to X and avoid recurrence of the fault I found, the Council has agreed to:
1. apologise to X for the disappointment and frustration caused by its failure to retain control of some of the development on the site; and
2. continue and complete its review of its service and drafting of its new enforcement policy so that it is ready to present to the first available meeting of the relevant scrutiny committee following the elections in May 2024. The review will include work practices and procedures, staffing levels and other resources necessary for the Council to deliver its planning enforcement service.
25. The Council will complete the first part of the remedy within 2 weeks of our final decision.
26. The Council will provide us with details of the outcome of its review after it has been presented to the relevant scrutiny committee. This will happen by the end of June 2024.
27. The Council will provide us with evidence it has complied with the above actions.

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Final decision

28. I found fault causing an injustice to X and which might recur. I have completed my investigation because the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman