Summary: Ms X complained the Council failed to take enforcement action over planning breaches relating to protection of bird habitats. We found the Council properly investigated reported planning breaches and was not at fault for not taking formal enforcement action.

The complaint

1. Ms X complained about the Council’s lack of enforcement action over planning breaches relating a landowner’s failure to comply with a Skylark Mitigation Strategy.
2. Ms X said the landowner first ploughed over Skylark nesting plots, and then added nesting plots retrospectively but in the wrong locations.
3. Ms X said she put in years of work getting protection for Skylarks and the Council’s lack of action has caused distress.

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The Ombudsman’s role and powers

4. 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)
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(1), as amended)

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How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Ms X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Ms X 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 conditions

9. Planning conditions are requirements attached to planning permission and may be used to control how a development is built. Conditions can dictate specifics like exterior materials, landscaping, or operating hours.
10. Councils may impose planning conditions to make development acceptable in planning terms.
11. When used properly, conditions can enhance the quality of development and enable development to proceed where it would otherwise have been necessary to refuse planning permission, by mitigating the adverse effects.

Section 106 agreements

12. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.

Enforcement

13. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
14. 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.
15. 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

16. I have summarised below some key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
17. A housebuilder received planning permission to develop land next to existing farmland.
18. Planning permission included a condition that no development should take place until the Council approved a Skylark Mitigation Strategy (the Strategy), included to protect Skylarks.
19. A Skylark is a bird typically associated with farmland habitats. They nest on the ground in short vegetation, with nesting starting in late March or April.
20. The Strategy proposed plots within farmland next to the development site. These were identified as areas A to C. The owner of the farmland (the landowner) is responsible for implementing the measures set out in the Strategy.
21. The Strategy states that Skylark plots are undrilled patches within arable fields. They are created by switching off the drill, or lifting it, to create undrilled patches at least 3 metres wide. There will be two plots per hectare which are unconnected to tramlines and sited at least 24 metres away from telegraph poles and field boundaries.
22. A suitably qualified ecologist will carry out surveys in years 2, 5 and 10 to check implementation and record success. This will comprise a single visit each surveying year during peak breeding season of April to June. They will provide a letter report to the Council following each surveying visit.
23. The Council received complaints from residents in March 2023 the landowner was not following the Skylark Mitigation Strategy, driving the birds from their nests. Residents said the landowner drilled plots A and B of the land, leaving no Skylark plots.
24. The Council opened an enforcement investigation in May 2023.
25. Ms X contacted the Council in May 2023. She said the housebuilder was constantly mowing the area of grass where Skylarks were nesting, and all the surrounding fields had been ploughed, including what should be the Skylark mitigation site.
26. The housebuilder gave the Council a copy of a construction ecological management plan review conducted by its ecologist. The review detailed the ecologist’s findings, including on Skylarks and the Strategy, after visiting the site. I do not have the owner’s permission to share the report, so I have not included the details.
27. The Council emailed residents on 6 June 2023 advising it visited the site and met the housebuilder’s ecologist. It found no breach of the planning condition on the Skylarks. It said the landowner acted according to the Strategy and it would close its file.
28. The Council sent questions to the housebuilder’s planning consultant on whether the landowner prepared all land for Skylarks, and for confirmation of where current plots were located.
29. The planning consultant said it had a meeting with the Parish council on 12 June 2023 and advised where each plot is located, marked by blue posts. They gave a map showing the areas.
30. The Parish council asked the Council for evidence of what it saw and what the landowner had done, and identification of the proposed Skylark mitigation sites. They also asked if the landowner completed works within the six-month period set out in the Strategy, and created all 39 plots.
31. The Council said after the visit with the housebuilder’s ecologist they provided a technical note which addressed the Skylark situation. The Council said it did not have permission to disclose this, but had no reason to doubt the findings of a professional ecologist.
32. The Council emailed Ms X on 17 July. It said it visited the site on 6 June and met the ecologist, who confirmed there is no breach of the Strategy. The ecologist also provided a technical note addressing the Strategy. The Council had no reason to doubt the findings of professionals.
33. The Council said the housebuilder met the Parish council on 12 June, giving the location of the Skylark plots – which are marked with blue posts. The Parish council could provide Ms X with updates on the development going forward.
34. The Council’s planning department sought advice from its legal department in September 2023. Officers considered there was largely a state of compliance. The advice was therefore that enforcement was a matter of judgement, if considered expedient and in the public interest. The advice was that this did not seem likely via an application for an injunction – due to the costs. The legal department advised writing to the owner reminding them of their legal duties and potential for further action.
35. The Council wrote to the landowner about the Strategy in October 2023. It said it had no record of receiving the completion certificate required by the section 106 agreement. It asked the owner to provide this urgently. It also said the Council was considering an injunction to enforce the section 106 agreement.
36. The landowner gave the Council a copy of a letter from the ecologist dated 16 August 2023, confirming Skylark mitigation measures and plots were in place, and the letter served as the completion certificate.
37. Ms X emailed the Council on 16 October 2023 reporting the landowner ploughed the fields, destroying plots including ones correctly installed.
38. The Council received another reported planning breach from a resident on 17 October. The resident said the landowner failed to provide Skylark mitigation plots, and they would now not be ready for the breeding season. They attached pictures of a ploughed field.
39. The Council confirmed it opened an enforcement case to investigate.
40. The Council contacted the landowner in November 2023, advising it learned the landowner ploughed most of the plots after the ecologist signed them off. It said the plots put in place earlier in the year must remain untouched next year according to the ongoing measures. It asked the landowner to confirm they understood this.
41. The landowner said their understanding was, while plot positions are permanent, they can disturb the ground outside the nesting period in line with normal agricultural practice. They will reinstate the plots in Spring. This gives the birds bare ground to nest on, which is what Skylarks need. Leaving the plots undisturbed would create a weed patch that would be unsuitable. The owner said the advice they received was that this is the best way to manage the sites. The landowner said they would get their farming contractor to telephone the Council to discuss the plans for next year.
42. The Council told Ms X it spoke to the landowner and there was a breakdown in communication with their contractor and ecologist about the ongoing requirements of the section 106 agreement. The Council said it would be speaking to the contractor to go through the Strategy and ensure there are no deviations going forward. It decided not to take legal action then.
43. Ms X expressed dissatisfaction at the Council’s failure to enforce the planning condition in February 2024.
44. The Council treated this as a complaint and sent its stage one response in March. It said its enforcement team wrote to Ms X on 15 December 2023 explaining why it was not expedient to pursue enforcement action. There was a breakdown in communication between the landowner, agricultural contractor and ecologist on the ongoing requirements of the Strategy. The Council has since discussed the requirements with the contractor to ensure they are fully understood. The Council said it would reconsider its position if the landowner did not follow the Strategy in future.
45. Miss X said the Council had not acted in the public interest, accepted information from the landowner without checking facts, and should have taken enforcement action.
46. The landowner sent the Council photographs of areas chosen for Skylark plots and their creation for Area C in May 2024. The landowner also sent confirmation of the plots and margins for Areas B and C.
47. The Council sent its final complaint response in May 2024. It said the public interest test considers whether, and to what extent, the wider general public are adversely impacted by a breach. It was officer opinion at the time that the situation on the Skylark strategy did not meet this test.
48. The Council said it appreciated there was doubt about some information provided. But it said ecology is a specialist field and it had no reason to doubt the ecologist’s professional advice.
49. The Council said it put measures in place to visit and check the Skylark plots, and the landowner was working with the Council to make sure they complete plots each year.
50. The Council said the agricultural contractor was working to complete the plots for that year, and the Council received evidence on 10 May 2024. It said it would follow this up with compliance checks. It also said if it was not satisfied with the result of these checks, it would recommend serving a breach of condition notice.
51. A resident wrote to the Council in July 2024 asking it to take enforcement action over the landowner’s failure to follow the Strategy. They said the timescale for creating plots was six months, but after two years the landowner still failed to deliver them correctly. This included plots too close to telegraph poles and footpaths, and field margins being cultivated in May – outside the February to April window.
52. The Council said it was seeking the views of the County Council’s ecology department and would then take legal advice.
53. The landowner sent the Council evidence of the Skylarks plots they created for the year in May 2025.
54. A resident then contacted the Council with evidence the landowner created Skylark plots after drilling the land. They referred to the Strategy, which states plots should be created by switching off the drill to create undrilled patches. They said the landowner had not done this for the third year and had destroyed any nesting opportunities.
55. Ms X emailed the Council on 18 May, asking for a copy of the ecologist’s letter report for year 2. The landowner sent this to the Council in late May. Again, I do not have the owner’s permission to share the contents of the report. However, it confirms the ecologist visited the site in June 2024 and found the landowner had performed the measures set out in the Strategy.
56. The Council contacted the County Council’s ecology department asking if the method the owner used to create Skylark plots is as effective as the method stated in the Strategy. It said the landowner created the plots after crop establishment, by spraying out the areas (rather than shutting off or lifting the drill). The Council said its own research suggested the method the landowner used may be an alternative way of creating plots.
57. The County Council’s ecology department said the method used by the landowner was an acceptable way of creating plots as long as the spraying is done before December. It said the owner was not doing things the way the Strategy specified, but they are still achieving the requirements of the Strategy.
58. The County Council also said they would not consider this a planning breach. As long as the plots fundamentally meet the definition of a Skylark plot then how the landowner chooses to establish them is of low importance.

My investigation

59. Miss X said despite the certificate confirming the landowner completed the Skylark mitigation work, they had not. Miss X has photographic evidence the landowner completely ploughed the fields over so even correctly installed Skylark plots were destroyed.
60. Miss X told us the landowner created the Skylark plots retrospectively and not to correct measurements. Some were connected to tram lines, too close to telegraph poles, or too close to footpaths. The Council told Miss X it needed to consult the County Council’s Ecology department. Miss X disagreed. She said the Council can see the plots are wrong by visiting the site and measuring them.
61. Miss X said she has not seen the County Council’s assessment, or the landowner’s two-year report.
62. The Council told me the landowner has consistently worked with the Council to follow the Strategy. The landowner made adjustments each year to address ecological observations, showing their commitment to balancing agricultural operations with wildlife conservation.
63. The Council received specialist input from an ecologist who advised the steps taken are enough to have an equivalent effect, even if not in the way previously envisaged.
64. The Council does not consider it would be expedient to take further steps. All complaints were investigated and resolved with the landowner. The complainant is not directly affected, and further intervention is not proportionate or in the wider public interest.

Analysis

65. The Council met with the housebuilder’s ecologist on site after early complaints. It also considered a review report from the ecologist. Both showed compliance with the Strategy.
66. I appreciate Miss X’s concerns, because she collected photographic evidence of what she saw as breaches of the Strategy. On the other hand, the Council did visit the site and had evidence from a suitably qualified professional ecologist showing the landowner followed the Strategy. I did not find fault over the Council’s consideration of the complaint at that time, and it is the Council’s decision whether to take enforcement action.
67. The Council sought advice from its legal department after it continued to receive complaints. The advice it received was to send informal warning letters rather than pursue formal action. The Council did this.
68. I found the landowner cooperated with the Council, in providing requested information and making any changes needed to achieve compliance with the Strategy.
69. Also, the housebuilder’s ecologist’s report for year 2 states they found Skylark plots were present and in line with the Strategy when they surveyed the site in June 2024. They also saw Skylarks and considered the Strategy was being successful.
70. The Council also sought advice from the County Council’s ecology department. It saw no issue with the landowner drilling the land and creating the Skylark plots afterwards. While this may not be as strictly outlined in the Strategy, it was an acceptable way of achieving the requirements of the Strategy. The County Council said the Strategy cited Royal Society for the Protection of Birds guidance on creating Skylark plots, whereas the method used by the landowner was consistent with guidance from Championing the Farmed Environment. As long as the plots met the definition of a Skylark plot, the County Council did not consider there was a planning breach.
71. The Council did not specifically address the issue of some Skylark plots being too close to tramlines, telegraph poles and field boundaries. However, the Council is satisfied the landowner is creating suitable plots, and took sufficient steps to achieve an equivalent effect to the measures set out in the Strategy. It therefore does not consider it is expedient to take enforcement action when overall it considers the Strategy is being followed in terms of what it was set out to achieve.
72. I found the Council took suitable steps to investigate the reported planning breach and was not at fault. The ecology reports it received suggested there was compliance with the Strategy. However, the Council did still consider whether formal action was necessary when it continued to receive complaints, but the advice from its legal department and the County Council did not support this.

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Final Decision

73. I found the Council properly investigated reported planning breaches and was not at fault for not taking formal enforcement action.

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Investigator's decision on behalf of the Ombudsman