Summary: Mr J complained about the Council’s handling of planning applications and planning enforcement relating to the use and works at a neighbouring farm. He said as a result he had experienced distress and an impact on residential amenity. We found no fault, or not enough evidence of fault, in how the Council reached its decision it was not proportionate or expedient to take any action. We could not consider Mr J’s concerns about its decisions on planning applications and statutory nuisances as these had been subject to legal action.

The complaint

1. The complainant, Mr J, complained about the Council’s handling of the planning enforcement process for the use of and development at a farm next to his home. He said it:
• failed to take enforcement action after it decided the development was unlawful, and required planning permission and an environmental management plan (EMP) to protect residential amenity. Including after it refused retrospective planning applications;
• failed to consider expert reports on odour and noise, and to follow law, planning guidance, and its local plan in the process;
• caused delays in the enforcement process; and
• failed to share information he requested regarding when the development would be immune from enforcement action.
2. Mr J said, as a result, he has experienced distress and an adverse impact on his amenity due to odours, noise and flies.

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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. 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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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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What I have and have not investigated

9. I have considered Mr J’s complaint about how the Council handled his planning enforcement concerns from 2020 until Summer 2024 when it reached its decision and had provided its complaint responses to him. While this relates to matters which occurred more than 12 months before it was brought to our attention and the complaint is therefore late, I found it appropriate to exercise my discretion. This is because Mr J had continued to raise his concerns, and it would not have been possible for the Ombudsman to consider his complaint sooner due to the ongoing planning applications and court actions.
10. I have not investigated:
• The Council’s handling of Mr J’s neighbour’s planning applications between 2020 to Autumn 2023. This is because the main application was subject to a Judicial review and other applications were withdrawn. I cannot consider any matters which were subject to court proceedings.
• Mr J’s concerns about a statutory nuisance arising from the works or use of his neighbour’s farm. This is because this was subject to court action in 2023 where no statutory nuisance was found.
• The Council’s handling of Mr J’s neighbour’s Autumn 2024 planning application for a new barn. This is because this was not part of his complaint and the decision was made outside the period I am investigating.

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How I considered this complaint

11. I considered evidence provided by Mr J and the Council as well as relevant law, policy and guidance.
12. Mr J and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning permission

13. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
14. Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

15. Planning considerations do not include things like:

• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

16. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.
17. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I – buildings of exceptional interest;
• Grade II – buildings of special interest; and
• Grade II* – particularly important buildings of more than special interest.
18. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
19. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind’ or ‘unique’.
20. Planning permission is usually needed to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.

Permitted development

21. Not all development needs 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’.
22. Some permitted development proposals need 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.

Planning Enforcement

23. Councils can take enforcement action if they find planning rules have been breached. However, they should not take enforcement action just because there has been a breach of planning control.
24. 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.
25. 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.
26. 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 September 2023, paragraph 59)
27. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances (for events which occurred before April 2024):
• there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.
28. 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 decided 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.
29. 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

30. I have set out some key events which occurred. This is not intended to be the full details or events of what happened.
31. Mr J lives in the countryside next to a farm. In 2020 his neighbour changed the use of the farm to a dairy farm. Some works took place to existing buildings and hardstanding to facilitate the change of use, livestock was brought in, and machinery was installed.
32. Mr J told the Council about the developments on the farm and the Council opened an enforcement case to consider whether breaches of planning control had occurred.
33. The Council spoke with Mr J, his neighbour, and the Environment Agency. It initially found the works were permitted development as it was within the same use of class or was not considered development which require planning permission.
34. However, in Autumn 2020 it reopened the case as more works had taken place. Some parts of the development therefore required planning approval, which could set out mitigations to impact on residential amenity in an Environmental Management Plan (EMP).
35. Mr J’s neighbour made a planning application for works to the farm. The Council had served a planning contravention notice for some works but put this on hold following the application. An EMP was also submitted.
36. The Council considered the application. Its Environmental Protection Team found the EMP was not sufficient, and a new plan should be completed by an appropriately qualified body to ensure residential amenity was protected in relation to noise, odours and flies. The application was subsequently refused.
37. Mr J’s neighbour submitted further planning applications in 2021. The Council validated the applications, conducted site visits, and consulted with the Environment agency and Natural England.
38. Mr J complained to the Council about its handling of his neighbours’ applications. He said it should not have validated the applications as the EMP was insufficient. He also arranged for noise and odour experts to consider the EMP, development which had taken place, and findings in expert reports submitted by his neighbour. Mr J shared the reports with the Council.
39. By Autumn 2022 a new planning officer took over the case, and a visit to Mr J and the site took place. Natural England advised as a statutory consultee that further consideration was necessary to determine impacts on Sites of Special Scientific Interest through air modelling with the baseline of 2019 before the dairy farm started. The Council’s Environmental Protection Team considered the expert reports of Mr J and his neighbour had provided.
40. In November 2022 the Council declined Natural England’s advice and approved one of the planning applications.
41. Mr J had a solicitor and sought a judicial review of the Council’s planning decision. His neighbour subsequently withdrew the other planning applications. Both Mr J’s experts and his neighbour’s experts provided further report for the Council and the court to consider.
42. In Autumn 2023 a court considered Mr J’s judicial review. It upheld his application and quashed the Council’s planning decision. It found:
• the Council’s planning decision had been unlawful and irrational, partly as the whole of the development had to be considered, and the fall-back position was not that of a dairy farm.
• the Council failed to address Natural England’s advice on air quality in an area of Sites of Special Scientific Interest properly and wrongly considered a baseline of when livestock was present; and
• the odour impact and how this had been considered by the Council did not provide grounds which would make the review successful.
43. In November 2023 a court also considered Mr J’s statutory nuisance complaint. This was after the Council had found no statutory nuisance existed following his neighbour’s use and development. The court considered the various expert reports but also found no statutory nuisance existed. It did find some noise would cause a significant adverse impact, offensive and unpleasant odours would be emitted, and overall activities at the farm would cause a substantial adverse impact on Mr J’s residential amenity.
44. The Council told Mr J it expected his neighbour to submit a new retrospective planning application to regularise works which required planning permission. However, it expected to approve such an application. In early 2024 it met with Mr J’s neighbour who still intended to submit an application.

Mr J’s complaint

45. Mr J complained to the Council in early 2024. He said:
• Its planning officer had been biased towards his neighbour, failed to have proper regard for the history of the case and court involvement, and showed no respect for the protection of his residential amenity in line with Council policies;
• It had failed to take a balanced and reasonable approach to its decisions, including properly considering expert reports, the law, and its own policies;
• It had failed to take enforcement action, caused delays, and refused to engage with him; and
• its planning officer should not be involved in the case.
46. The Council did not receive a retrospective planning application from Mr J’s neighbour soon after. It therefore started an enforcement case and ensured its planning officer was not involved with the case.
47. The Council did not uphold Mr J’s complaint. It explained it:
• had worked with Mr J’s neighbour and his solicitor regarding a new planning application, and had said it would consider enforcement action if this did not occur;
• was aware of the deadlines for immunity of some of the works. It had informed Mr J its enforcement and legal team was considering whether enforcement action should be taken when no retrospective application was received;
• had not caused unnecessary delays and had not refused to engage with Mr J, however, it could not provide a timescale for when its enforcement decision would be made; and
• found no evidence of bias by its planning officer and found the approach to consider the case had been consistent with other cases. However, it had taken steps to ensure its planning officer was not involved in the case.
48. In Spring 2024 the Council’s enforcement team conducted further site visits to Mr J’s neighbours farm and spoke with the owner who still intended to make a new planning application. It also considered an expert report it had arranged to provide advice on the use of the building to inform its decision making on whether it was proportionate and expedient to take enforcement action.
49. In June 2024, the Council found it was not expedient to take enforcement action against Mr J’s neighbour for development which had taken place. It said this was after having considered the history of the case, the various expert reports, the court decisions, site visits, and legal advice.
50. Mr J’s neighbour has since submitted a new planning application relating to a new barn and the works which had taken place at the farm. The Council considered and approved this by planning committee in Autumn 2024.
51. Mr J asked the Ombudsman to consider his complaint. He said the Council failed to properly consider his concerns, involve statutory consultees, and apply local policy and law in its decision making.

Analysis and finding

Was there fault in the process the Council followed to reach its planning enforcement decision?

52. I have considered how the Council reached its views on Mr J’s concerns which includes how it applied the relevant law, National Planning Policy Framework, and its own policies. Its detailed considerations were set out in its enforcement report and complaint responses to Mr J.
53. I found the Council had properly considered each of Mr J’s concerns and this was evidenced in its detailed enforcement report. This included:
• how it reached its views on permitted development and works which required planning approval. Including how and why it changed its view during the four-year period;
• how it had considered the law and conflicting local policies;
• its regard to the judicial review decision which quashed its planning decision. It subsequently considered what use and development could take place without further planning approval against the works which would require planning approval. In doing so it obtained its own expert report which it considered to inform its view;
• whether it remained necessary to obtain an Environmental Management Plan from Mr J’s neighbour to mitigate impact on residential amenity. It sought further views from its Environmental Management Team and Natural England before it reached its final decision;
• it acknowledged Mr J’s neighbour’s use and works at the farm had an adverse impact of Mr J’s residential amenity, but had regard to its nuisance decision and Mr J’s private statutory nuisance case in court; and
• had regard to Mr J’s neighbour’s new planning application for a new barn, which would relocate livestock and mitigate some of the impacts on residential amenity.
54. I acknowledge Mr J disagrees with the Council’s decision it was not proportionate and expedient for it to take enforcement action against the works his neighbour had completed. However, I am not satisfied there was fault, or enough evidence of fault, in how the Council reached its decision. Without fault in the process the Council followed to reach its view, I cannot criticise the outcome of its decision.
55. It is accepted Mr J has experienced an adverse impact on his residential amenity in the form of odours and noise. However, the Council was therefore entitled to reach its view it was not expedient to take enforcement action against his neighbour for any of the works which had taken place.

Did the Council cause unnecessary delay in its handling of the case

56. The Council started its initial enforcement case in 2020, which was closed and reopened soon after. It took the Council until Summer 2024 to reach its final decision on the use and works which had taken place.
57. I acknowledge planning enforcement can be complex, subject to changing factors, and lengthy. I have considered whether the Council caused unnecessary delay during the four years it to reach its decision. However, I am not satisfied the Council was at fault.
58. In reaching my view, I was conscious the Council:
• conducted several site visits and received several planning applications for it to consider;
• spoke with Mr J on several occasions and worked with his neighbour regarding works which had taken place;
• reached a decision on a planning application, which was subsequently subject to a judicial review. This caused a significant delay in the enforcement process, as it would not be possible to consider or start any action during such time;
• considered Mr J’s concerns about a statutory nuisance. Including having regard to the private statutory nuisance case Mr J brought to court;
• considered several conflicting expert reports relevant to the use, works, and impact of the works which had taken place. It also commissioned its own report to reach its decision on whether to take enforcement action or not;
• chased Mr J’s neighbour when he caused delays, but such delays were not in the Council’s control; and
• had regard to deadlines for immunity of works which had taken place and reached its decision shortly before this was likely to have caused an issue.
59. Therefore, while I understand Mr J’s frustrations with the significant time it took for the Council to reach its view, I am not satisfied the Council caused unnecessary delay in the enforcement process.

Bias by the Council or its officers

60. Mr J said the Council had been biased towards his neighbour in its handling of his concerns. He also disagreed with the view of the Council’s planning officer and asked for the officer not to be involved in the case.
61. I have considered the extensive amount of information I have received from Mr J and the Council. I have not found evidence the Council was biased or failed to offer Mr J a reasonable opportunity to share objections, his views, or consider his complaint. It also agreed to change its planning officer to acknowledge his concerns about bias, although it did not agree the officer had been at fault.
62. While I understand Mr J’s neighbour was offered more time to provide information relevant for planning applications or the Council’s enforcement investigation, it was not fault for the Council to agree to this. This is because it was up to the Council how best to obtain information about or address any concerns it identified.
63. Also, the Council was not required to allow Mr J further time to submit additional representations or evidence. However, the evidence shows all the information and expert reports Mr J provided were considered by the Council through either its planning or enforcement considerations.

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Decision

64. I have completed my with a finding of no fault, or not enough evidence of fault, by the Council in the way it handled and considered Mr J’s concerns about the use and development at his neighbour’s farm. It therefore reached a decision it was entitled to make.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman