Summary: Mr B complained the Council wrongly confirmed an Article 4 Direction for an area in which he owns a plot of land. We found no fault in how the Council handled the Article 4 Direction process, we cannot therefore criticise the merits of its decision. Also, there was not fault in how it responded to Mr B’s complaint in 2021. However, it was at fault for failing to respond to him when he first brought his concerns to its attention in 2020. It has agreed to apologise to Mr B for the uncertainty this caused.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained about the Council’s:
• decision and handling of an article 4 direction for an area in which he owns a plot of land; and
• failure to respond to his questions and follow its complaints policy.
2. Mr B said, as a result, he experienced distress and uncertainty. He also said he cannot properly use his land without incurring planning application costs.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’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

6. As part of my investigation, I have:
• considered Mr B’s complaint and the Council’s responses;
• discussed the complaint with Mr B and the information he provided;
• considered information the Council provided in response to our enquiries, and the relevant planning decisions available on its website; and
• considered the relevant law, guidance and Council Policy.
7. Mr B and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Permitted development and Article 4 Directions

8. The Town & Country Planning (General Permitted Development) (England) Order 2015 (the GDPO) sets out permitted development rights. This is where development is allowed without the person completing the works having to apply for planning permission.
9. The GDPO also allows a local Authority to make a direction which takes away the permitted development rights in a specific area or development, if it considers developments impacts the proper planning or a threat to the amenity of an area. This is known as an Article 4 Direction.
10. A local authority can apply an immediate Article 4 Direction to a specific area, which will last for 6 months. After this, it must follow the procedures set out in the GDPO to confirm the Direction for it to continue. This includes:
• giving notice of the Direction to owners or occupiers, and placing local advertisements and site notices; and
• specify the effect of the Direction and when it is intended to come into force;
• make the relevant documents available to the public;
• set a period of at least 21 days for representations to be made concerning the Direction; and
• consider all the representations it received before confirming the Direction.
11. There are no appeal rights for an article 4 Direction. However, planning applicants in an article 4 area can appeal a planning refusal to the Planning Inspectorate.

Green Belt

12. The National Planning Policy Framework sets out the importance of protecting Green Belt Land with the aim of protecting the characteristic of the Green Belts openness and permanence.
13. The Council Policy CS5 of its Core Strategy says the Council will apply national Green Belt policy to protect the openness and character of the Green Belt, local distinctiveness and the physical separation of settlements.

Council Policy

14. The Council’s complaints policy says when it receives a complaint it will:
• within 5 working days, acknowledge the complaint;
• within 15 working days, respond to complaints under its stage one process;
• within 20 working days, it will consider a request to escalate a complaint to its stage two process. If accepted, an independent review will be carried out by an Assistant Director from a different service area within the 20 working days;
• if there are delay in responding to a complaint, it will tell the complainant; and
• if the Council’s complaints process did not resolve the matter, complainants can bring their concerns to the attention of the Ombudsman.

What happened

15. Since 2016 an area of Green Belt land within the Council’s area was sold in smaller plots to various owners (the Area). Some plots have since been further subdivided into even smaller plots and been sold to new owners.
16. Mr B has an interest in a plot of land within the Area.
17. In 2019 Mr B raised concerns to the Council about developments within the neighbouring plots, which he believed were not allowed under permitted development rights. He has continued to raise these concerns to the Council, which we have investigated as part of a separate complaint.
18. In late 2019, the Council inspected the Area and decided to apply a six-month immediate Article 4 Direction to stop permitted development rights. It did so in response to the unauthorised use and development within the Area, which it found was a threat to the openness and permanence of the Green Belt.
19. In early 2020 the Council inspected the Area again. It found the Area was highly visible from public rights of way and the nearby highway. It also publicised its intention to confirm the Article 4 Direction and gave notice to Mr B and other plot owners.
20. The Council received seven representations following the Article 4 Direction notification. There were four representations for the Direction and three against.
21. Mr B was one of the objectors. He agreed the Council had to take action against plot owners who did not follow planning laws and permitted development. However, he told the Council:
• his plot should not be included in the Direction as he had not done any development to the land and his plot was not visible from the highway;
• he would have to pay for applications to the Council to implement permitted development rights;
• the Article 4 Direction should only be on the plots in which development or inappropriate use had taken place;
• there was no Article 4 Direct on other nearby land which had been sold off in smaller plots; and
• the Officer’s report had errors such as the access points, gates, types of fencing and the number of pylons within the Area.
22. The Council agreed for its Development Management Committee (the Committee) to consider the Article 4 Direction. Its Planning Officer created a report which recommended for the Direction to be confirmed without modification. This included the representations the Council had received and the Officer view.
23. The Council said the Committee received an amended Officer’s report before it considered the Article 4 Direction, which corrected some errors and facts.
24. In Spring 2020, the Committee considered the Planning Officer’s report and the representations it had received. It decided to confirm the Article 4 Direction for the Area.
25. In summer 2021, Mr B raised concerns to the Council about the process it had followed to confirm the Article 4 Direction. He acknowledged the Planning Officer’s report had corrected errors and the Committee had considered the amended report. However, he said:
• only the original report was showing on the Council’s website;
• the representations the Council had received was based on the original Officer’s report, not the amended report which the Committee considered;
• the Council should have reissued the Article 4 Direction notification to allow new representations.
26. Mr B said the Council did not respond to his concerns. However, in summer 2021 he realised the Council’s website still showed the original Officer’s report. So, raised his complaint again. This was part of Mr B’s separate complaint relating to the Council handling of enforcement within the Area.
27. The Council acknowledged and responded to Mr B’s complaint as set out in its policy. It told him there were two versions of the Officer’s report. The amended version which the Committee had considered, and the original version on its website. It said it had now uploaded the amended version on its website and apologised for any inconvenience this had caused him. However, it found it had followed proper process when it confirmed the Article 4 Direction, as the two versions were not materially different and the representations it received were considered.
28. Mr B was not satisfied with the Council response and asked it to consider his complaint under its stage two process. He said:
• its stage one response was from an Officer which had a conflict of interest as she had previously commented on the Article 4 Direction;
• the Council should have reissued the Article 4 Direction notification after it made the amendments to the Officer’s report;
• it was not known what other representation the Council would have received if the amended report had been made public. It was therefore not possible to say what the Committee’s decision would have been; and
• he raised further concerns about his separate complaint regarding the Council’s handling of enforcement within the area.
29. The Council responded to Mr B’s complaint, but it did not change its view.

Analysis

30. Mr B complained about matters which occurred since 2019. His complaint is therefore late. However, it is clear he has continued to pursue his concerns with the Council throughout and the Council agreed it had caused some delays, I have therefore found it appropriate to exercise my discretion to consider his concerns since 2019.
31. Mr B has made several complaints to the Council, most of which relates to the Council’s handling of enforcement within the area and how it had responded to his concerns. However, as part of this complaint, I have only considered how it handled the Article 4 Direction and its related responses to Mr B.

The Article 4 Direction

32. The GDPO allowed the Council to make an Article 4 Direction which took immediate effect in later 2019. For this Direction to continue after the initial six-month period, it was required to follow the process set out in the GDPO.
33. I understand Mr B is frustrated his plot of land is included in the Article 4 Direction, as he feels he has not done any development which could impact on the character of the Green Belt. However, I have found no fault in how the Council handled the Article 4 process. I cannot therefore criticise the merits of the decision it reached. In reaching my view, I am conscious:
• it properly notified owners and relevant interested parties;
• the representations it received was set out in the Officer’s report, which explained the context of the Area, the impact on the Green Belt and specified why the Area needed further proception. It also set out the Officer view, her consideration of the representations, and her recommendation for the Committee to confirm the Article 4 Direction;
• once the Council became aware there were errors in the Officer’s report, it corrected its errors;
• its Committee considered the Article 4 Direction, the Officer’s amended report and the representation it had received, which included Mr B’s representations; and
• it publicised its Committee’s decision which confirmed the Article 4 Direction for the Area.
34. In addition, I am not satisfied the Council’s amended Officer’s report required it to reissues a notification for the Article 4 Direction. This is because the errors related to context and facts. The representations it received from Mr B and other interested individuals related to the impact on the Green Belt or their personal use of the Area. On balance, it was therefore unlikely any substantially different representation could have been made which would impact on the Committee’s decision.
35. The Council has acknowledged it failed to update its website with the amended Officer’s report. It has since corrected its error and apologised to Mr B for any inconvenience this caused. As this did not impact the Article 4 Direction process, I am not satisfied this caused Mr B a significant injustice. The Council’s apology is therefore enough to address this matter.

Complaint’s handling

36. The Council failed to respond to Mr B’s concerns about the Article 4 Direction process in 2020. This was fault.
37. I am satisfied this may have caused Mr B some uncertainty. However, I have not seen evidence Mr B chased this up until summer 2021 and I found no fault in how the Council handled the Article 4 Direction process. I am therefore satisfied an apology from the Council is enough to remedy the uncertainty he experienced.
38. I have not found any fault in how the Council investigated and responded to Mr B’s complaint in 2021. This is because it followed its policy, which included a stage two response from a senior officer in a different service area.

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Agreed action

39. To remedy the injustice the Council caused to Mr B, the Council should, within one month of the final decision:
1. apologise in writing to Mr B for its failure to respond to his reasonable concerns about its handling of the Article 4 process;
40. Within three months of the final decision the Council should also:
1. remind its staff to ensure reasonable complaints and concerns are responded to as set out in the Council’s complaints policy.

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Final decision

41. I found no fault on the substantial matters of the complaint. However, there was some fault in the Council’s complaints handling which cause some injustice. It is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman