Summary: We will not investigate this complaint about the Council’s decision on a report of a breach of planning control. There is not enough evidence of fault in the decision-making process. And we cannot achieve the outcome the complainant is seeking.

The complaint

1. Mr X complains about the Council’s decision that no breach of planning control exists on land around the village where he lives.
2. He wants the Council to require the developer to remove the structures around fruit trees. If this is not possible to have the structures altered so they do not undermine the natural beauty of the landscape.

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The Ombudsman’s role and powers

3. 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, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

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

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My assessment

6. The Council received reports of breaches of planning control by a farm operator erecting support structures or fruit cages around fruit trees at several sites around the village where Mr X lives.
7. The Council confirms it opened an enforcement investigation. Officers decided no building or engineering operation had taken place and there was no breach of planning control.
8. Two local parish councils disagreed with the Council’s decision and provided legal advice which stated the Council’s assessment of whether the works were development was “flawed and incomplete”.
9. The Council confirms it sought information from the operator in the form of a Planning Contravention Notice. The operator provided information and a copy of legal advice they had obtained which stated the fruit cages/structures are not building or engineering operations.
10. As the Council had now received conflicting legal opinions from the operator and the parish councils it says it decided to seek its own legal advice and visit the sites again.
11. The planning officer wrote a report on the matter. This sets out the nature of the alleged breach and the legal advice obtained. It also shows the Council consulted its:
• Heritage Team
• Economic Development Team
• The Area of Outstanding Natural Beauty (AONB) Team at the county council
12. The report summarises the responses received and the relevant local and national planning policy.
13. Having considered the relevant polices, the objections and the advice received, the Council decided the fruit cages/structures do not fall within the category of building operations as defined by the Town and Country Planning Act 1990 section 55.
14. I understand the legal advice obtained by the Council differs from that provided by the local parish councils. Mr X also disagrees with the Council’s view.
15. However, the Ombudsman is not an appeal body. This means we cannot criticise a council’s decision if we have not seen evidence of fault in the way the decision was made.
16. In this case, the Council investigated the reported of breaches of planning control. It sought legal advice and explained why it does not consider there is a breach oof planning control.

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Final decision

17. We will not investigate Mr X’s complaint because we have not seen enough evidence of fault in the way the Council decided the fruit cages/structures are not breaches of planning control to warrant our involvement. And, without evidence of fault in the decision-making process, we cannot achieve the outcome Mr X is seeking.

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Investigator's decision on behalf of the Ombudsman