Summary: X complained the Council had taken too long to control unlawful developments on land near X’s home. We did not investigate further because the planning application and enforcement processes are ongoing. In relation to what has happened so far, we are unlikely to find fault, provide a remedy for X or provide any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council has taken too long to control unlawful developments on land near X’s home.
3. X said the new uses are likely to increase traffic movements in his area and cause damage to the greenbelt.
4. X also complained about how the Council responded to their complaints.

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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
• we cannot show any alleged fault has caused injustice to the person who complained, or
• we cannot show that any alleged injustice is 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 no worthwhile outcome achievable by our investigation.

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

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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.
7. I gave the Council and X an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

8. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant and approved by the council before development begins.
9. If the development is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has already been constructed. Planning enforcement officers sometimes ask developers to submit retrospective applications where they find evidence that development is not lawful.
10. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
12. 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.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
14. 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.
15. Some areas of land are designated as ‘green belt’ land. Green belt land is subject to enhanced planning controls, the purpose of which is to prevent urban sprawl by keeping the land open.
16. Government guidance says that inappropriate development in green belt should not be allowed except in very special circumstances, where the harm is clearly outweighed by other considerations.
17. Councils should regard construction of new buildings in green belt as inappropriate, but there may be exceptions, which could include:
• buildings for agriculture and forestry;
• facilities for sport and recreation;
• alterations to or replacements of existing buildings;
• limited infilling or redevelopment of previously used sites (brownfield sites).

What happened

18. A landowner carried out development works on land near X’s home.
19. X complained to the Council’s planning enforcement officers.
20. The Council’s planning enforcement officers visited the site. The developer submitted a retrospective planning application.
21. The planning application was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• a summary of planning history considered relevant;
• comments from neighbours and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including the part of the site that was within green belt, design and layout, impact on residential amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
22. The Council’s planning committee decided to defer its decision to allow more time to consider information that had been submitted late in the process. The application has not been decided yet or a decision issued.
23. In relation to other works, a Council planning manager sent me copies of enforcement notices and copies of updates sent to X.
24. The documents showed the Council was aware of the planning issues, had found evidence of a breach of controls and had taken action by serving an enforcement notice on the developer. The notice remains valid, and the enforcement file is still open, so the Council is maintaining planning control over the works.

My findings

25. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
26. 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?
27. 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.
28. 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.
29. I should not investigate X’s complaint further because:
• the planning application and planning enforcement processes are ongoing;
• I have seen no evidence to suggest fault in the way the Council has acted so far. The Council followed the decision-making process we expect;
• there is no obvious evidence of delay that amounts to fault in process. Planning enforcement can often take a long while, as councils must give developers an opportunity to regularise breaches and will normally only enforce as a last resort. Though these matters have been going on over some time, I have seen nothing to suggest the outcome would have been different, and it is clear the Council has maintained planning control; and
• even if there was evidence of fault, I would not be able to assess whether it caused an injustice to X, because the planning process has not completed, and so we cannot know what the outcome will be.
30. X also complained about how the Council dealt with their complaints.
31. We do not routinely investigate complaints that are just about complaints procedures. There are several reasons for this, but the main reasons are as follows.
32. Our focus is mainly on the issues and decisions that caused the original complaint. We are a stage beyond the Council’s own complaints processes and can remedy any injustice it has failed to address when it has had the chance to do so.
33. We do sometimes investigate complaints procedures, even if there is no personal injustice to the complainant. We may do this if we think it is likely there are significant or systemic complaints process failures that could cause injustice to others.
34. We keep records of complaints handling issues, and if it is clear systemic problems exist within complaints procedures, we can investigate further to see if service improvements are necessary.
35. I checked our records and found no evidence of systemic failure in the Council’s complaints handling processes.

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Final decision

36. I ended my investigation because planning application and enforcement processes are ongoing. In relation to what has happened so far, we are unlikely to find fault, provide a remedy for X or provide any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman