Summary: There was no fault in how the Council investigated a breach of planning control. It considered the relevant issues in reaching its decision to await the outcome of a planning application before taking any further action.

The complaint

1. Mrs B complains about the Council’s planning enforcement team. She complains it failed:

• in its duty to protect local residents and the environment from potential risks posed by ongoing work on a site that did not have planning permission. The site is a former landfill. But the Council has refused to take enforcement action despite development on the site. It says it was not its policy to do so;
• to check the documentation submitted as part of the planning application which reports there is a moderate risk of asbestos. However this should have been recorded as high risk.

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The Ombudsman’s role and powers

2. 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)
3. 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(1), as amended)

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How I considered this complaint

4. I considered evidence provided by Mrs B and the Council as well as relevant law, policy and guidance.
5. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

6. Planning is about the use of land. A developer should seek planning permission for work defined as “development” by section 55 of the Town and Country Planning Act 1990.
7. Applicants can seek a “permission in principle” to develop a site. This separates the principle of development from the technical details of the development.

Planning enforcement

8. Councils can take enforcement action if they find a breach of planning rules. 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.
9. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework December 2024, paragraph 60)

The Council’s Local Enforcement Plan

10. The Council’s Local Enforcement Plan says:

• the Council was committed to investigating all reported breaches of planning control;
• once the Council had investigated an alleged breach it might take action if it was causing harm;
• it had three principal courses of available action:
• to negotiate a solution. It would take that action when it saw that as the most reasonable way of dealing with a breach;
• submission of a “retrospective” planning application;
• formal action. When it appeared justified it would prepare a report to the relevant authorised person or committee, to seek permission to take formal enforcement action.
• it aimed to be proportionate in its response to breaches of planning control. In deciding what action to take, it would consider whether it was expedient to take action, based upon the harm the development was causing.

What happened

12. Mrs B lives near to a site that had permission in principle for a housing development. Later the owner of the site applied for a change in its use to a different type of residential development. As part of that application, the Council requested a land contamination assessment. The applicant submitted a geo-environmental report, which noted the potential for land contamination. The report recommended further investigation to assess the risks.
13. Towards the end of the summer, the applicant moved onto the land and started preparation of the site. Local residents and Councillors promptly reported this to the Council.
14. A Council enforcement officer visited the same day. His report noted:
• the site had a permitted in principle decision for its residential use; and
• a potential risk of contamination.
15. On that day the site owner moved onto the site and started to live in temporary accommodation.
16. The following day the Council served the developer with a temporary stop notice. This said:
• the Council considered there had been a breach of planning control;
• it was expedient to issue the notice due to the geo-environmental report that had identified the potential for harm from further works.
17. The temporary stop notice required that:
• all unauthorised ongoing development cease;
• the developer removed all equipment from the site.
18. In the following week the Council’s waste services manager visited the site. The Council also contacted the Environment Agency. Neither had any immediate concerns about contamination. The Council’s officer spoke to the site owner who advised he intended to commission a ground investigation to establish the contamination risk of the site.
19. An enforcement officer visited the site and noted that there was no excavation machinery on the site, removal of which was one of the requirements of the temporary stop notice. So the Council’s view was the site owner had complied with the notice’s conditions.
20. The Council’s enforcement team took the view that until it had considered the planning application, it would allow continued occupation of the site.
21. The Council’s enforcement officer visited the site in the autumn. His record noted no sign of any activity that breached the temporary stop notice. The site owner advised the officer of his intention for some limited extra development of the site, for the amenity of the residents. The officer advised the site owner he did so at his own risk that the Council might take enforcement action against any development.
22. Later in the same month the temporary stop notice expired. The Council’s view remained it was not expedient to take enforcement action while a decision was pending on the planning application.
23. Shortly after, the site owner commissioned a stage two environmental report. The Council’s enforcement officer conducted a site visit after receiving the report.

24. The Council responded to a complaint from Mrs B. This advised:
• it was managing the enforcement case in line with its established practice, through awaiting the outcome of the planning application;
• it had recently received the developer’s stage two contamination survey. The results of the report were consistent with the Council’s understanding of the past use of the site. This did evidence some contamination. This gave the Council the legal basis to stop any further works on site pending further investigation; and
• the Council might issue a stop notice if there was further development.
25. At the end of the year, the Environment Agency objected to any development, without further investigation, due to the risk of contamination.
26. In the early part of the following year, the developer commissioned a phase three “remediation strategy report”, at the request of the Council.
27. Mrs B complained to the Ombudsman.
28. The Council’s planning committee considered the application later in the year. It refused to grant planning permission. The site owner appealed the decision.

Analysis

29. The decision whether or not to take planning enforcement action is a statutory discretion. The Ombudsman’s role is to consider whether a council has taken all relevant factors into account, whether it has taken account of irrelevant issues, whether its decision was properly recorded and evidenced, whether it had had regard to any relevant guidance or policies, and whether its decision was reasonable and proportionate in all of the circumstances.
30. Planning authorities usually first try to deal with breaches informally, often through negotiation with the developer/landowner. Negotiations may take time and can result in a developer/landowner making a planning application for the unauthorised development that has taken place. This allows a local planning authority to give local people an opportunity to comment on that development and then assess it against planning policies. Normally, development meeting planning policies will get planning permission, unless there are other relevant planning reasons to justify refusal.
31. Taking account of the above, my decision is there was no fault by the Council. Although there were breaches of planning control, the Council’s records show it investigated the breaches. It visited the site several times; sometimes after local residents had expressed concerns. It considered relevant issues, such as that the Council had already decided in principle to allow residential development of the site. It was also aware of the risk of contamination and asked the site owner to commission surveys and reports. It was for the Council to decide whether it should take formal enforcement action or, as here, decide to await the outcome of an application for planning permission.

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Decision

32. I find no fault.

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Investigator's decision on behalf of the Ombudsman