Summary: We found no fault on Mr F’s complaint about the Council failing to follow procedure when considering and granting consent for development of land within the green belt. Nor was there fault on his complaint about it failing to take enforcement action for breaches of planning consent.

The complaint

1. Mr F complained about the Council failing to:
1. follow procedure when it granted planning consent for developments on land within a country park in the green belt;
2. properly consider and decide the applications; and
3. enforce planning conditions and breaches of planning consent.
2. As a result, flooding has become more frequent and extensive which affects neighbouring properties. In addition, the developments have impacted on local amenities as this is green belt.

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The Ombudsman’s role and powers

3. 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)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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What I have and have not investigated

7. As Mr F complained to us in March 2024, I have not investigated actions by the Council before March 2023. This was because complaints before this date were late, and I saw no good reason to investigate them now. In reaching this view, I noted the Council sent him its stage 2 follow up response in July 2023 which signposted him to us. He took a further eight months to send us his complaint.
8. Mr F complained to us in March 2024. This means I have not investigated any complaint he had against the Council after this date. The period of my investigation was March 2023 to March 2024.

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How I considered this complaint

9. I considered all the information Mr F sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr F and the Council. I considered their responses.

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What I found

Council’s Statement of Community Involvement (July 2022)

10. Planning applications are subject to statutory consultation requirements set out in the Town and Country Planning (Development Management Procedure) Order 2015 and in Planning Practice Guidance.
11. For minor development, including change of use applications, the Council will provide notification by site notice or neighbour notification letter. Neighbour notifications are sent to any neighbouring property sharing a common boundary with the land subject to the application.

Legal and administrative background

12. Councils must decide planning applications in line with their local plan policies unless other material planning considerations show they should not.
13. Material considerations concern the use and development of land in the public interest, and not to private matters.
14. General planning policies may pull in different directions. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application.
15. Council planning officers will usually prepare a report assessing development proposals against relevant policies and other material planning considerations. Having considered and balanced the planning issues, the report will end with an officer recommendation to grant or refuse planning permission.
16. The courts made it clear officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the council and the applicant) who are well experienced of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

17. Councils will grant permission where they consider proposals are in line with relevant planning policies and they find no planning reasons of sufficient weight to justify refusal.

Planning enforcement

18. A breach of planning control is defined in Section 171A of the Town and Country Planning Act 1990 as:
• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
19. Councils can take enforcement action if they find planning rules have been breached. A council should not take enforcement action just because there has been a breach of planning control. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach.
20. 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.
21. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)
22. As recommended by the National Planning Policy Framework (NPPF), the Council publishes its own Local Enforcement Plan. This plan notes that “Enforcement action should only be taken where the Council is satisfied that it is ‘expedient’ to do so, having regard to the provisions of the development plan and to any other material planning considerations”.

What happened

23. Mr F has lived in his home for about six years. Nearby was a site owned by the Council within the green belt. Green belts are areas around certain towns and cities, for example, where the intention is to stop urban sprawl by keeping the land permanently undeveloped. The Council rented the site on a long lease to a business (the tenant).
24. Mr F was unhappy about a number of developments carried out on the site which had no planning consent. He believed the Council failed to take enforcement action against the tenant for these breaches and for failing to comply with planning conditions. Mr F was concerned the developments were likely to increase flooding of nearby residential housing.
25. The planning committee considered five planning applications for consent for this site in late 2022 (meeting 1). The committee deferred a decision. This was to allow the tenant to provide a Flood Risk Assessment for the whole site.
26. When this assessment was received about five months later, the committee considered each application (meeting 2) the following year. It granted consent to all but one of them. The focus of the planning officer reports for the applications was the new evidence the tenant sent.
27. The Council confirmed the Environment Agency, and the Local Lead Flooding Authority (LLFA), were responsible for reducing the risk of flooding from surface water, groundwater, and ordinary watercourses. Where there was a risk of flooding, the Council consulted one or both of them on planning applications.
28. Neither the Environment Agency nor the LLFA had objections to the applications. In his response to my draft decision, Mr F pointed out the Environment Agency should not have been consulted about these applications anyway.
29. The Council confirmed as they had raised no objections based on flood risk, this meant the risk of flooding was not a ground on which it could refuse the applications.
30. I now consider each of Mr F’s complaints:

Complaint a): failing to follow procedure when granting consent

31. Mr F complained the Council failed to follow procedures when it considered and granted consent on the planning applications and specifically that it failed to:

• publish his letters of representations on the planning portal. He gave the example of it not publishing his representations to the flood risk assessment for two months. It published it the day before the planning committee met;

The Council accepted officers failed to put his representations on its website sooner but explained their content was summarised in the planning officer report.

• summarise his representations properly in planning officer reports;
• consistently follow notification procedures. He gave the example of no notification on some applications while others notified up to 132 residents. He also complained the Council failed to tell him of updates and planning committee meetings;

The Council explained the notification letter to residents said they could view progress of planning applications on its website using the planning reference. It also explained anyone wanting to speak at the planning committee needed to contact Customer Services. It confirmed as a minimum, adjoining properties were notified by letter. Ten properties were notified for each of application. The evidence shows for all five applications, ten homes were notified; and

• ensure voting was done correctly on application 3.

32. The minutes for application 3 show although the committee voted, ‘no valid decision was made’. It would hold another meeting two weeks later to decide it. The minutes for the following meeting noted the Council solicitor said there had been confusion about the number of members voting for, against, and abstaining and the effect of the chair’s casting vote. It resulted in an outcome different to that upheld. This meant the decision at the previous meeting to approve it was ineffective.
33. The new meeting was to vote only and there would be no further discussion or debate. The minutes for this meeting show the committee voted against approving the application. One member proposed refusing the application. At this point, the chair decided to adjourn the proposal to allow a brief discussion with officers to understand the intention and reasons for the proposed refusal.
34. A senior officer told the committee the reasons for refusal put forward by the proposer. Three reasons were set out and the Chair first required the committee to approve each reason for refusal by a majority vote. The committee voted to refuse the application and the reason given was the third one. The Council previously addressed his complaint about voting on application 3 and apologised for the problems.
35. Mr F claimed the problem was the Chair had tried to overturn the decision at the previous meeting to refuse the application by using his casting vote, which was why there was a further vote.

My findings

36. I make the following findings on this complaint:
1. The Council accepted there was a failure to put his representations on its website sooner than it did. While fault, I am not satisfied this caused Mr F a significant injustice. This was because the planning report summarised the two letters of representation received for this application. I am satisfied Mr F’s representation was brought to the attention of the planning committee for it to consider before it reached its decision.
2. I found no fault on his complaint about the planning report summaries of his representations. This was because they do provide a summary of his representations. The reports did not have to repeat them in full but to provide the main points made which were relevant planning considerations. ‘Best practice in officer report writing’ (Local Government Association Planning Advisory Service) stated while an officer must set out all the objections and support received on an application, ‘This does not mean reproducing comments word-for-word but ensuring that it is clear which issues are supported and which have objections’. It went on to explain it was the ‘materiality of the issue that is most important’.
3. I found no fault on his complaint about notification procedures. Regulations set out the minimum requirements for how councils publicise planning applications. For major development applications, councils must publicise the application by:

• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.

For all other applications, including minor developments, councils must publicise by either:

• a site notice; or
• serving notice on adjoining owners or occupiers.
4. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the council’s policy on how it communicates with the public when it carries out its functions. In their SCI policy, councils may commit to do more than the minimum legal requirements, for example, by putting up a site notice and to serving notice on adjoining owners or occupiers.
5. I found no fault on this complaint for these five applications. The Council consistently notified ten properties. By sending the notification letters, the Council fulfilled its statutory duty.
6. While there were accepted problems with the voting on application 3, I am not satisfied this caused Mr F an injustice. This was because the committee wanted to be clear about the reason for its decision to refuse the application. In addition, the committee refused the application anyway, which was the outcome Mr F wanted.

Complaint b): properly consider and decide each application

37. Mr F complained the Council failed to properly consider its own planning policies and government policies when deciding the five applications and was not impartial. He claimed it failed to properly consider the following:
1. highways and flooding concerns;
38. Mr F complained the Council failed to properly consider the impact the developments would have on the roads and flooding.
39. Meeting 1 was adjourned to allow the tenant to provide a Flood Risk Assessment, a copy of which I have seen. All the planning reports for meeting 2 confirmed this was why the previous meeting was adjourned. This assessment was produced in consultation with the LLFA. The site was within Flood Zone 1 which was at a very low risk of flooding. The assessment noted the total area of the site covered by the planning applications was small and so likely to have a minimal impact on surface water runoff.
40. The Council noted there were no objections from the LLFA or the Environment Agency on the applications for which they had to be consulted on. The planning report noted representations received about the assessment.
41. On those applications which needed consultation with the Highways Team, the evidence showed Highways was asked about each one.

My findings

42. I found no fault on this complaint. This was because the evidence showed the Council consulted the LLFA and received a Flood Risk Assessment. Both were referred to in planning reports. I am satisfied, therefore, information about flood risk was before the committee at meeting 2 when it considered each application.
43. I am also satisfied there was no fault on the complaint about the Council failing to properly consider highway concerns. The evidence shows this was considered where relevant on applications. Highways were consulted and made recommendations. This too was information before the committee at meeting 2 when it considered the applications.
44. It was for the planning committee to decide what weight to give to the evidence about flooding and highway concerns.
1. releasing a field for parking;
45. Mr F complained about the decision on application 5, which it approved, to release a field on the site for overflow car parking during peak times despite it being in the green belt.
46. The officer’s report for meeting 1 stated the proposal would not erode the openness of the green belt with the proposed car park at ground level away from residential properties. It referred to representations received which argued it was unjustified and created more traffic. It set out the relevant policies from the NPPF, the Council’s own Core Strategy, and its Development Management Policies Document.
47. It also set out the tenant’s statement about why this parking was needed and considered the impact on neighbour amenity.
48. The report noted Highways recommended conditions, and a car parking management plan, should the Council grant consent. It also referred to two planning appeal decisions for the site, which gave consent by the planning inspector. These decisions were for overflow car parking and landscaping on the site. The planning inspector decided overflow car parking was not inappropriate development in the green belt.
49. The report recommended approval of the application subject to conditions. The planning committee agreed. The visitor management plan would be updated to control visitor numbers within the approved car park and the overflow car park. Details of the car parking management plan would include information on the number of overflow parking spaces, its surfacing, and cut-off point for when it would be used.

My findings

50. I found no fault on this complaint. I am satisfied the Council properly considered all material planning considerations when it reached its decision to give consent. The Council considered the previous successful appeals about the use of an overflow car park on the site. It also took account of the reasons for its need and its impact on the openness of the green belt, along with the visitor and car parking management plans.

c) drop off deliveries and vehicle movements;

51. Mr F complained about the way the Council considered an application to vary earlier consent about vehicle access and deliveries to the site. He claimed officers failed to provide a risk assessment for deliveries along a residential road.
52. Application 1 allowed additional deliveries along a road to the site near to Mr F’s home. Concerns were raised and two conditions were recommended to upgrade the entrance which would be used and for a traffic regulation order. Both of these were included in the decision notice as conditions.
53. The Council confirmed the risk from traffic movements from deliveries would have been part of the consideration given by Highways.

My findings

54. I found no fault on this complaint. I am satisfied the planning committee was presented with a report setting out representations received, the consultation response from Highways, relevant policies, and relevant material planning considerations. The committee considered all this information when reaching its decision.
1. unauthorised change of use in the green belt;
55. The Council did not consider the development in the green belt was inappropriate. This was because of paragraph 149 (b) of the NPPF. This said a local planning authority should consider constructing new buildings in the green belt as inappropriate although there were exceptions to it. The exception the Council considered was for the provision of appropriate facilities for outdoor recreation. This allowed development provided it preserved the openness of the green belt and did not conflict with the purposes of including land within it.
56. The Council decided the development was not inappropriate despite being in the green belt because it was part of the wider site, a recreational facility, and did not involve an erosion of the openness of the green belt.

My findings

57. Government guidance says inappropriate development in the green belt should not be allowed except in very special circumstances, where the harm is clearly outweighed by other considerations.
58. Councils should consider construction of new buildings in green belt as inappropriate, but there may be exceptions, which could include:

• Buildings for agriculture and forestry;
• Facilities for sport and recreation;
• Alterations to, or replacements of, existing buildings;
• Limited infilling or redevelopment of previously used sites (brownfield sites).

59. I am satisfied the Council was aware the proposed development was in the green belt. The reports for committee meeting 2 noted officers reviewed the recording of meeting 1, which showed members raised the issue of development in the green belt during the earlier meeting.
60. I read the reports for meeting 1 which all referred to the fact the site was in the green belt and local country park nature reserve. They referred to Core Strategy (2007), and policy CS2, which was about the green belt. They also referred to policy DM1 ‘Extent of the Green Belt’ from its Development Management Policies Document (2015), along with DM6 ‘Open Space Provision’. The reports considered the principle of development in the green belt and inappropriate development. It considered the openness of the site.
61. I also note an objector also addressed the committee.
62. I found no fault on this complaint. This was because the committee was given information about concerns raised, relevant planning policies, and the nature of the development in terms of amounting to an exception for development in the green belt. This was information it had before it when reaching its decisions.

Complaint c): failing to enforce planning breaches

63. Mr F complained the tenant breached planning conditions for the site.
64. Since March 2023, Mr F raised 32 enforcement cases which relate to unauthorised development and breaches of conditions, some of which the Council said were duplicated. The Council explained there were resource constraints on the enforcement officer who has more than 250 cases each year from across the borough. The outcome of its enforcement investigations was either the tenant submitting planning applications or, a finding of no breach.
65. The Council provided information about reports it received dating back to 2011 for the site. This included open and closed investigations. The results of these investigations included many which were regularised by way of a planning application which it approved. Others found no breach, or were considered lawful through passage of time, for example. It also showed it had about another 40 cases which were open and ongoing.

My findings

66. On balance, I found no fault on this complaint. Enforcement action is discretionary, and the evidence showed reports were investigated and decided. Many of the reports of breaches it investigated resulted in the submission of planning applications to regularise the position.

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Final decision

67. I found no fault on Mr F’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman