Summary: We will not investigate Mr X’s complaint about the Council deciding not to take enforcement action against a firm which leases a site near his property, allowing the firm to apply for retrospective planning permission, and delay in that application process. There is not enough evidence of fault in the Council’s enforcement process to warrant investigation. Even if we were to investigate, there is insufficient significant injustice stemming from the enforcement decision to justify us investigating. Investigation of the planning application process would not lead to a different outcome. We also cannot achieve the outcomes Mr X wants from his complaint.

The complaint

1. Mr X lives near a site leased by a local firm (‘the firm’) from the company which owns the land (‘the owner’). The firm has been storing materials on the site which were not permitted by its planning permissions. Mr X complains the Council has:
1. failed to apply a temporary stop notice to the firm’s activities;
2. allowed the firm to submit a retrospective planning application for the land’s current use;
3. extended the time for the firm to make the application by months.
2. Mr X says his garden was flooded with water contaminated by the materials on the site, including carcinogenic substances. He says he is anxious about further flooding and contamination when it rains. Mr X wants the Council to enforce the terms of the original planning permission and make sure the firm removes all unauthorised materials from the site.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement; or
• further investigation would not lead to a different outcome; or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

5. I considered information from Mr X, relevant online maps and planning documents, and the Ombudsman’s Assessment Code.

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My assessment

6. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
7. Planning enforcement is a discretionary power held by local authorities. It is for those authorities’ officers to make decisions on whether to use their powers. National government guidance advises authorities to use enforcement as a last resort and only where they consider it warranted by an identified planning breach.
8. In response to Mr X’s concerns, the Council visited and reviewed the site’s planning record and the permissions granted. Officers found the site did not have permissions for all the materials the firm stored there. The Council agrees the firm breached the original planning permission. Once the breach was found, it was for officers to use their professional judgement to decide how to respond to it. They have taken an approach recommended by national government. Where a planning breach has been identified, planning authorities may invite the party in breach to apply for retrospective permission. This planning application process tests whether the activity not covered by current permissions can be made acceptable in planning terms. There is an active planning application for the site dealing with the materials which can be stored there, how it will be managed, and a drainage scheme. It is now for the Council’s planning officers to decide whether the permission should be granted or refused. While there is an active planning application, a council would not be able to enforce because the body in breach is seeking to regularise their site’s planning uses.
9. Officers gathered and assessed the relevant information to inform their decision not to use their discretionary enforcement powers and to invite a retrospective application, in line with national government guidance. There is not enough evidence of fault in the Council’s planning enforcement process to warrant investigation. We recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
10. Even if there were Council fault in the enforcement process, we will not investigate. It is not a personal injustice to Mr X for the firm not to be the subject of enforcement action. The injustice of the contamination of his garden is being rectified by the site’s owner, providing a remedy for this issue. We recognise Mr X fears future floods. But we cannot remedy injustices for incidents which have not yet happened, and the fear of them is insufficient injustice to warrant us investigating. Works are ongoing by a different local authority to repair drains affected by the materials washed from the site.
11. We understand Mr X considers the Council has given the firm too long to submit its planning application. But the application is soon to be considered at its planning committee. The Council might have been able to receive the firm’s application sooner. But given the stage the process has reached, investigation of it now would not lead to a different outcome, so we will not do so.
12. Mr X wants the Council to enforce the terms of the original planning permission and require the removal of all materials not covered by that permission. The Council says the firm has removed one of the unauthorised materials. In respect of the other materials, the ongoing planning application is considering what can or cannot stay on the land and how the site must be organised and drained. Achieving the outcome Mr X wants, a return to the terms of the original permission, would require us to intervene in the planning process, which we cannot do. That we cannot achieve the outcomes Mr X wants from his complaint is a further reason why we will not investigate.

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Final decision

13. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s enforcement process to warrant an investigation; and
• there is not enough significant injustice to him from the enforcement process to justify us investigating; and
• investigation of the time taken by the planning application process would not achieve a different outcome; and
• we cannot achieve the outcomes he seeks.

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Investigator's decision on behalf of the Ombudsman