Summary: X complained about the Council’s decision not to take planning enforcement action after it found a neighbouring business was operating in breach of planning conditions. We found no fault in the way the Council made its decision.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision not to take enforcement action against a neighbour, who is operating their business in breach of planning controls.
3. X said the breaches of control are causing parking and vehicle movement problems in the area.

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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, considered documents from its planning files, and discussed what had happened with a planning manager.
7. I gave the Council and X an opportunity to comment on my draft decision and took account of the comments I received.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. 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.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Planning enforcement powers

12. 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.
13. 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.
14. 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.

What happened

15. X complained about a neighbour, who was operating their business in breach of planning controls.
16. The Council investigated X’s allegation and found there was a breach of two planning conditions, one that controlled storage of goods outside buildings, and another that controlled areas laid out for parking and access.
17. The Council made enquiries of the site owner, a limited company, and found it had been dissolved and so was no longer trading. The Council considered whether it should take further action, and it decided not to. The planning manager I spoke to explained this was because:
• enforcement officers had visited the site, met with the parties and discussed the case with the Council’s lawyers. It agreed it could serve notice on the land and/or the occupiers of the business units on the land, but it had decided it would not be in the public interest to do so. This was because the breaches of condition were not causing significant harm to the public;
• the Council had recently been told that a new landowner had taken responsibility and was willing to work with the Council to address its concerns. In these circumstances, taking enforcement action was not necessary or proportionate;
• the problems X was experiencing with parking and access were private matters between neighbours, and it was not in the public interest for the Council to become involved.

My findings

18. 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.
19. Before it made its decision not to take planning enforcement action, the Council considered X’s allegation, investigated the situation on the site, considered its powers and, though it found a breach of control, decided not to take enforcement action. This is the planning enforcement process we would expect and so I find no fault in the way the Council made its decision.

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Final decision

20. I found no fault in the way the Council made its planning enforcement decision and so have completed my investigation.

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Investigator's decision on behalf of the Ombudsman