Summary: We will not investigate this complaint about an alleged lack of action by the Council to take enforcement action in respect of alleged breaches of planning consent. This is because there is insufficient evidence of fault by the Council to warrant an investigation. The Council is actively considering its enforcement powers and taking decisions accordingly as it is expected to do.

The complaint

1. The complainant (Mr W) complains about an alleged lack of action by the Council to take appropriate enforcement action in respect of purported breaches of planning consent. Specifically, he says the Council opened two enforcement investigations into land owned by a farm operator:

• One relating to the change of use with respect to agricultural land.
• The other concerning the widening of the farm’s access and removing a public footpath and right of way.

2. In Mr W’s view, and despite opening the above investigations two years ago, the Council has failed to determine what action to take and, in turn, remedy the breaches of planning consent.
3. In summary, Mr W says the loss of the public footpath and right of way has created unsafe conditions as residents in the area now have to walk on the road which has also impacted on traffic. He further says the change of use and planning breach has led to increased noise activity which is affecting his and other residents’ quiet use and enjoyment of their properties.
4. As a desired outcome, Mr W wants the Council to enforce the relevant planning laws and put a stop to the unlawful activity. He also wants the Council to enforce the public footpath and other changes made be put back to their original state.

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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 per-son making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide there is not enough evidence of fault to justify this. (Local Government Act 1974, section 24A(6), as amended, section 34(B).

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How I considered this complaint

6. I also considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

Repositioning and widening of the existing farm access

7. The available evidence shows the Council has made a number of visits to identify any breach of planning consent and has addressed concerns with the farm operator. However, as the Council says, the owner of the land in question has applied for part retrospective planning permission to gain consent for the repositioning of the farm’s access. If approved, this would have direct effect on any assessment as to whether there has been a breach of planning consent which justifies enforcement action by the Council.
8. The Council is under no legal duty to commence enforcement action in respect of a breach. Instead, it has the right to exercise its power and take enforcement action. This type of action is therefore discretionary. Before making a decision not to take planning enforcement action, the Council has considered the allegations raised, investigated the situation on the site while having due regards to its powers. The Council subsequently decided it would not be expedient to take enforcement action at this moment on account of the live planning application which I note is still pending a decision. This is the planning enforcement process we would expect the Council to follow and I see no evidence of fault in the way it has made its decision.

Change of use

9. As Mr W is already aware, the Council has a live enforcement investigation in respect of the change of use allegation. The records show the Council has again engaged in the enforcement process and the Council’s enforcement officer has since drafted a detailed Planning Contravention Notice (PCN) which is to be served on the owner/operator of the land. As the Council says, the purpose of the PCN is to secure relevant details of the activities being carried out on the land and within each individual building. The responses the Council receives are necessary to identifying relevant planning breaches. The Council says this will accurately inform any Enforcement Notice to be served. In my view, the evidence shows the Council both considering and taking actions as part of the enforcement process. I see no evidence of fault to warrant an investigation.

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Final decision

10. We will not investigate this complaint. This is because there is insufficient evidence of fault by the Council to warrant an investigation. The Council is actively considering its enforcement powers and taking decisions accordingly as it is expected to do.

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Investigator's decision on behalf of the Ombudsman