Summary: X complained about the Council’s failure to take planning enforcement action to control an energy generation facility. X said the failure has affected the environment and local residents. There was delay, which was fault and caused X frustration, the Council has already apologised. The delay could also cause injustice to others in the future. The Council will arrange and hold a meeting with X to explain its enforcement decision and carry out service improvements to prevent recurrence of the faults identified.

The complaint

1. The person that complained to us will be referred to as X. X represents a charity that works to protect the countryside.
2. X complained the Council failed to take enforcement action to control conditions placed on an energy generation facility. X said the Council’s failure to act affects the environment and the amenity of local residents. X also complained about delayed complaints handling.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 application plans and a planning inspector’s decision. The case was also discussed with a planning manager.
7. I considered relevant law and guidance, as set out below, the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
8. X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Planning law and guidance

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
11. 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.
12. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
13. 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.
14. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
15. Some permitted development proposals require an application so the Council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications.

What happened

16. Over 10 years ago the Council granted planning permission for an energy generation facility. The permission included a condition about the amount of material that could be processed at the facility.
17. Over three years ago X complained to the Council about its failure to enforce the planning conditions at the energy generation plant.
18. Several years ago, the Council refused a planning application at the energy generation site because it did not consider the development was permitted development. The applicant appealed to the Planning Inspectorate.
19. X said it endured delay and confusion from the Council about its initial complaint and in mid-2023 X made a formal complaint to the Council. X complained the Council failed to take enforcement action, had changed its interpretation of a planning condition, and had taken too long to make its enforcement decision. The Council said it would not respond to X’s complaint until the outcome of the Planning Inspectorate appeal. About a year ago, the planning inspector dismissed the appeal. The Council considered the inspector’s decision and decided that there was no breach of planning control.
20. The Council did not revisit the complaint from X after the appeal was decided. X contacted the Council several times in March and April 2024 for an update from the Council and said it would meet the Council to discuss their complaint, but the Council did not send X a stage 2 complaint response or set up a meeting. In June 2024 X complained to us.
21. The planning manager told us in late 2024:
• there was now no breach of planning control, because it had considered and accepted the evidence provided by the applicant about the size of the agricultural unit;
• the Council has a staff shortage which has affected its work and caused delays. At the moment the Council only has four enforcement officers to cover the entire county;
• the Council has been working with an independent advisor on how its planning service could be reviewed. Once the review is completed, it will be shared with officers, and leaders in the Council, including officers and members; and
• it would apologise to X for the delays and set out the Councils current position on the planning control of the energy generation facility.
22. In mid-March 2025 the planning manager wrote to X and said:
• the Council apologised for the lack of engagement with X following the formal complaint to the Council. It said it was sorry for the unnecessary delay and distress caused because of staffing shortages; and
• it had undertaken an internal review and concluded it was not appropriate to undertake formal enforcement action in the way X wanted. It offered X a meeting in late March 2025 to explain its views further.

My findings

23. 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.
24. The Council accepts it took too long to conclude its enforcement investigation and that the cause of the problem is staff shortages. It has already begun a review which aims to improve the planning service. The delay was fault. The Council has agreed to take action to help avoid the same fault happening again. I do not find the fault caused a significant injustice to X given the Council decided not to take enforcement action.
25. The Council was at further fault when it told us in late 2024 it would apologise and update X on its current position in relation to the planning control of the energy generation facility site, but it did not do so until Spring 2025. This caused X frustration.
26. In mid-March 2025 the Council apologised to X for the lack of engagement after X’s formal complaint. The Council recognised it caused unnecessary delay and distress. This apology was appropriate and remedied the injustice caused to X. The Council also explained to X it carried out a review and concluded it was not appropriate to undertake enforcement action on the energy generation facility. Before it made its planning decision, the Council considered the law, the circumstances on the site, the outcome of the appeal and its powers under the Town and Country Planning Act 1990. This is the decision-making process I expect and so other than delay, I find no fault in the way it made its decision. It is a decision the Council is entitled to make. The Council agreed to explain its enforcement decision in a meeting between the Council and X. This is appropriate action by the Council given the time it has taken to respond to X.

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Action

27. There was fault which caused X frustration and could cause injustice to others in the future. To avoid the same fault happening again, the Council will:
1. arrange and carry out a meeting with X within one month of the final decision to explain why the Council considered it was not appropriate to undertake enforcement action on the energy facility;
2. complete its service review without undue delay. The review will include both plans to improve the service and to deal with any backlog caused by staff shortages in the past. This will happen within three months from the date of our final decision.
3. share the outcome of its service review with the Ombudsman and the relevant Council oversight and scrutiny committee. This will happen within one month from the date the review is completed.

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Final decision

28. I have completed my investigation finding fault which caused injustice to X and could cause injustice to others in the future. The Council has agreed to take action to remedy the injustice and prevent recurrence of the faults.

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Investigator's decision on behalf of the Ombudsman