Summary: We will not investigate this complaint about the Council’s consideration of reports of breaches of planning control and decision not to take formal enforcement action. We have not seen enough evidence of fault in the Council’s actions to justify an investigation.

The complaint

1. Mr X complains the Council refuses to act against breaches of planning control and refused to consider his evidence.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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.

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

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How I considered this complaint

3. I considered information provided by Mr X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
6. 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.
7. 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.
8. The Council is the local planning authority for the area. However, the county council is responsible for minerals and waste and highway matters. The Environment Agency is responsible for possible contamination of water courses.
9. The Council says it received a report of a breach of planning control from Mr X. An officer visited the site the following day. They also passed relevant information received from Mr X to the county council and the Environment Agency for their consideration.
10. The Council advised Mr X that only the engineering work on the site was within its jurisdiction. Matters relating to depositing hardcore, rubble and topsoil and lorries using the public right of way are for the county council and Dover District Council cannot take action on these matters.
11. The county council has advised it has asked the landowner to stop lorry movements along the bridleway. It also advised the Council it will deal with breaches of planning control regarding the disposal of materials on the site.
12. From the information I have seen there is not enough evidence of fault in the Council’s action on reports of unauthorised deposition of materials on the land and the illegal use of the bridleway by lorries. These are matters for the county council.
13. When visiting the site Council Officers noted the engineering work on the land have been completed. They advised the landowner to apply for retrospective planning permission to rectify the breach of planning control. They also advised that further engineering work would be at the landowner’s risk.
14. The Council advised Mr X that it did not issue a Stop Notice because the work was already complete. It considered issuing an Enforcement Notice. However, it concluded it would be difficult to demonstrate harm given contained nature of the site from wider views. Having investigated the breach of planning control including visiting the site, this is a decision the Council is entitled to take.
15. Mr X says the Council refused to consider the evidence he provided. However the Council has confirmed it passed the relevant information onto the other authorities for action. It also updated Mr X for the engineering works. It is for the county council and the Environment Agency to provide update on actions within their own jurisdictions.

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Final decision

16. We will not investigate Mr X’s complaint because we have not seen enough evidence of fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman