Summary: X complained that the Council decided not to take enforcement action against a development it had previously refused to grant planning permission. We completed our investigation because there was no fault in the way the planning enforcement decision was made.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision not to take enforcement action against a development for which it had earlier refused planning permission.

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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. 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

5. I considered evidence provided by X and the Council as well as relevant law, policy and guidance.
6. I gave X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.
8. If the development is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed. Planning enforcement officers sometimes ask developers to submit retrospective applications where they find evidence that development is not lawful.
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.

Planning enforcement powers

13. 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 determined 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.
14. 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. Councils can also decide to ‘under enforce’, where they decide not to require full action to remedy a breach of planning control.

What happened

15. X’s neighbour submitted a planning application for alterations to the front of their property including additional resurfacing of the driveway. The Council refused the planning application and after a complaint was made to its planning enforcement department, enforcement officers investigated the matter.
16. The Council decided there was a breach of planning control, but that it would under enforce by requiring the applicant to install a hedge to reduce the impact of the work on the conservation area.
17. A further complaint was made that the neighbour was operating a business from the property. The Council investigated and, following a site visit, concluded that there was no evidence to support this allegation.

My findings

18. 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.
19. Before it made its decisions on the enforcement complaints, the Council considered the allegation, found a breach of planning control, decided there was limited harm to the public and required screening plants instead of removal of the unauthorised works. It also considered the alleged change of use of the land but decided there was not enough evidence to show a breach of planning control.
20. The Council followed the decision-making process we would expect and its judgement about how to respond was a decision it was entitled to make. The enforcement officers were not obliged to take formal action simply because there was no planning approval for the development. The enforcement officers have discretion and, when they find a breach of planning control as they did here on one of the enforcement complaints, they are entitled to use their discretion on whether or how to respond.
21. I understand why X might be confused by the enforcement officer’s decision. Planning case officers refused a planning application because the development conflicted with some of its planning policies. However, Council’s enforcement officers decide to later take limited action to resolve the breach of control. This situation often arises, and it can happen because planning applications and planning enforcement decisions are fundamentally different, with statutory powers in different parts of the Town and Country Planning Act 1990 and separate guidance.
22. For a planning application, the question for the Council is whether the proposal is acceptable in terms of policy requirements of the local development plan and other material planning considerations. If the answer is ‘yes’ then the Council will approve, often with planning conditions.
23. Planning enforcement action starts with a breach of planning control, which could be that there is no planning permission for what was built, or that a condition that was imposed to make the development acceptable is in breach.
24. Once an enforcement officer finds a breach of control, they must then decide whether further enforcement action is justified. Their decisions must be proportionate to the harm caused to the public, and sometimes though there is a breach of planning control, no action is taken.
25. In this case, the normal enforcement decision process has happened, and this is why I found no fault.

Decision

26. I find no fault in the way the Council made its planning enforcement decision and so I completed my investigation.

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Investigator's decision on behalf of the Ombudsman