Telford & Wrekin Council (18 010 855)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 28 Mar 2019

The Ombudsman's final decision:

Summary: The Council acted without fault in its handling of planning applications and in its enforcement actions over an unauthorised gate. The Council has offered a remedy for faults it acknowledged in its complaints handling and has taken steps to improve its complaints processes, showing learning from the complaint.

The complaint

  1. Mr X complained about the procedures followed by the Council in deciding a planning application and about its enforcement actions over a gate installed by the developer across a path adjacent to the development site.
  2. Mr X said the Council provided inaccurate and misleading information to the Planning Committee over the application and has not exercised its enforcement powers appropriately over the gate, given it had previously refused a retrospective planning application for it.
  3. Mr X said he has spent a considerable amount of time and effort in pursuing his concerns and has been frustrated by the Council’s responses and delays in handling his complaints on these matters.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. 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

  1. I have spoken to Mr X and considered written information from him.
  2. I have considered comments and information provided by the Council, including its enforcement record on this case.
  3. I have considered:
    • the Town and Country Planning (General Permitted Development) (England) Order 2015; and
    • the Council’s Conservation Area Appraisal and Management Plan relevant to this location.
  4. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

  1. In 2013, the Council received an application to convert office buildings into houses within one of its conservation areas. It approved the application with conditions in 2014.
  2. One of the conditions prevented the construction of any fences or gates without prior approval from the Council. Another required the development to start within three years of the planning permission.
  3. In late 2016 the applicant and landowner put up a gate across a track that ran alongside the building to be developed, very close to a listed building. This track had been used regularly by local residents between two local roads for some years. The track had clear signs stating it was private land.
  4. The track was the subject of a public appeal to register it as a Public Right of Way, which has yet to be determined.
  5. The Council was alerted to the gate and advised the applicant that it was unauthorised and did not meet the required specifications for permitted development because it was too high.
  6. The applicant put in a retrospective planning application to regularise the gate. The Council refused planning permission because it considered the design would not do justice to its setting and the conservation area.
  7. The applicant did not appeal this refusal. He later reduced the height of the gate to around 20cm of the 2 metre height that would meet permitted development criteria.
  8. The Council considered enforcement action against the gate but reached the view that it would be disproportionate to the harm caused by the gate to take further action.
  9. The applicant made a further planning application in 2017 for the conversion of the office buildings to houses, because the 2014 permission had then lapsed. The Council approved the application in 2018, and attached a condition which required prior consent for any new gates and fences installed from the date of the permission.
  10. Mr X had complained about the installation of the gate at the time it went in and pursued his concerns with the Council. He made a formal complaint about the Council’s handling of these issues in April 2018. The Council provided its final response after Stage 2 of its complaints process in October 2018.
  11. Mr X was dissatisfied with the explanations provided to him by the Council for its approach to the planning matters he complained about. He was also unhappy with the suitability of the investigation into his complaint and delays in responding to his complaints on those matters. He therefore brought his complaints to the Ombudsman.

Relevant Planning law and local planning policy

  1. The Town and Country Planning (General Permitted Development) (England) Order 2015 (the Order) sets out provides the different situations where there is permission to carry out certain limited forms of development without the need to make an application to a local planning authority.
  2. Part 2, Minor Operations, Class A of the Order details when gates can be installed under permitted development. This says that a gate will not meet permitted development criteria if it is more than 2 metres above ground level and “it would involve development within the curtilage of, or to a gate, fence, wall or other means of enclosure surrounding, a listed building.”
  3. The permitted development criteria for the installation of gates makes no reference to their aesthetic appearance.
  4. The Order provides for directions restricting permitted development. These are known as Article 4 Directions and remove permitted development rights from areas where they are applied.
  5. The Council has a local conservation policy for the Conservation Area in which the development site sits. This says: “The Conservation Area at present has no Article 4 Direction which would restrict Permitted Development Rights and control accumulative changes that would threaten the character of the area..” This means that the site in question retained permitted development rights.
  6. The planning system operates separate regimes for deciding planning applications and for enforcing breaches of planning control. There are different assessment requirements for each regime and the same criteria do not apply across the two. Planning applications must be assessed against the Local Development Plan and such things as Conservation Area plans. Enforcement is assessed against approved plans within planning permissions and the public harm caused by any breach of what has been approved.
  7. Enforcement is an important part of planning. The Council has a duty to investigate alleged breaches of planning control but its powers to take any action are discretionary. The Council must consider whether the action it considers necessary is appropriate and fair. It therefore can be legitimate to take no further action or to pursue matters through formal enforcement procedures to prosecution.

Analysis

  1. The Council received a report from local residents in late 2016 that the gate had been installed across the track. Although the track had been used regularly by local residents it was fully on private land, owned by the developer. There were signs along the track explaining it was privately owned warning of the risk of prosecution for trespass.
  2. The developer had a ‘live’ planning permission at that time for development of the site next to and incorporating the track. The permission included a condition which removed permitted development rights for the erection of any fences, wall or gates on the site.
  3. However, the developer had not implemented this planning permission; there had been no development on the site. Therefore, the condition did not apply at the time the gate was put up.
  4. I have considered whether the erection of the gate was development in itself. Development is defined under the 1990 Town and Country Planning Act as "the carrying out of building, engineering, mining or other operation in, on, over or under land, or the making of any material change in the use of any building or other land."
  5. The 2014 permission was for the conversion of buildings from offices to dwellings. The track lay behind the buildings to be altered, within the development site but the gate was not specific to the development itself. The developer explained in his retrospective application that it was to secure the site from public access while construction took place. It was on private land and there was no legal Right of Way in place other than through past use.
  6. I do not consider development had commenced through the erection of the gate. Therefore, the planning permission, and so the condition removing permitted development rights was not engaged as a result of the gate being put up.
  7. The planning permission expired in March 2017.
  8. The Council investigated the report of the gate. It noted the gate could not be seen from public roads at either end and that the track was not a public Right of Way at that time. There had been a local application to make the track a Right of Way but this had not been determined. The Council supported an application for a Right of Way and the track at the time was the subject of a Definitive Map Modification Order to establish whether the Right of Way existed or not. The landowner and developer challenged the Order. A Public Inquiry to hear this is due to take place later in 2019.
  9. From its investigation, the Council found the gate did not meet permitted development requirements because it was 2.6 metres high, when permitted development only allowed 2 metres in height.
  10. The Council having identified a breach of planning control, had discretion on what enforcement action to take. It sought a negotiated solution through discussion with the developer, which it was entitled to do. As a result, the developer put in a retrospective application to seek planning permission for the gate.
  11. The Council then had to assess the retrospective application in line with planning application procedures, as set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015. This meant it considered the gate against its Local Development Plan and related conservation area criteria. It refused the application because the gate caused a loss of public amenity (access along the track for residents) and poor design which did not contribute to the conservation area.
  12. The developer had a right to appeal the refusal to the Planning Inspector but I have seen no evidence he did so. Instead he asked for a site meeting in August 2017 to discuss a way forward with the Council.
  13. Following the meeting the developer reduced the height of the gate to about 2.2metres. This still did not meet the permitted development criteria of 2 metres.
  14. The Council again had to consider what enforcement action to take. The criteria it could use were different from those used to refuse the retrospective application as enforcement is a different regime within the planning system. The criteria include the level of public harm caused by the breach of planning control and whether the breach could be resolved by changes that would fall under permitted development criteria. The Council also had to consider whether the action it considered necessary was appropriate and fair. The developer could appeal a formal Enforcement Notice to the Planning Inspector.
  15. The Council considered the public harm of the gate to be limited. This may appear contradictory to its stance on the gate and the public Right of Way when considering the retrospective application, however the gate was on private land and could not be seen from public roads at either end. The aesthetics of the gate did not come into play under permitted development criteria, only the height.
  16. The permitted development criteria relating to development within the curtilage of a listed building did not apply here. Even though the gate was sited very close to a listed building in the conservation area it was not within its curtilage, defined as “the area normally within the boundaries of a property surrounding the main building and used in connection with it.”
  17. The Council reached a pragmatic view that 20 cm over the permitted 2 metres in height did not cause sufficient public harm to warrant formal enforcement action. That is a view the Council was entitled to reach having considered all the relevant facts.
  18. The developer put in a further application for the redevelopment of the offices to houses in 2017, which the Council approved in March 2018 through its Planning Committee. The permission had a condition which required prior consent for the erection of any gates, walls and fences from the date of the permission.
  19. The existing gate was not on the plans in this later application. Mr X challenged this omission and said the Planning Committee was therefore misled. I consider there was no need for it to be included as the application was not seeking approval for the gate, having been through the enforcement process and been accepted under permitted development, nor was it material to the conversion of buildings, the substantive development.
  20. I therefore do not find fault in the way the Council handled the initial breach of planning control caused by the erection of the gate, in how it sought to regularise that breach or in its subsequent enforcement actions. I do not find fault in the information provided to the Planning Committee.
  21. The public Right of Way application is taking its course so I cannot comment on that. If it is successful then it is likely to address the gate as a barrier to what will then be a legal Right of Way. I do not consider the Council’s approach to its enforcement action will have any bearing on the decision to be reached on the Right of Way.
  22. Mr X complained about the way in which the Council handled his complaints on these matters. Where the Ombudsman does not find fault in the substantive issues complained about we generally do not investigate complaints handling alone.
  23. Mr X raised concerns about the suitability of the Independent Investigator who provided a report at Stage 2 of the Council’s complaints process. The Council explained the Independent Investigator had considerable experience of investigating a range of complaint subject areas for the Council.
  24. The most important requirement of a complaints investigator is the ability to carry out a thorough investigation of the events, based on facts and evidence, rather than an in-depth knowledge of the subject area; that knowledge can be acquired during the process. The evidence I have seen indicates the investigation was thorough and the outcomes reached were reasoned.
  25. The Council has also provided detailed and, to my view, clear explanations of its actions on more than one occasion to Mr X in its general responses and as part of its complaints process.
  26. The Council has accepted Stage 2 of its handling of Mr X’s complaints was delayed unreasonably and has offered him £150 for his time and trouble pursuing matters. If the Council is still offering this remedy, it is for Mr X to decide whether to accept it.
  27. The Council has provided evidence it has reviewed its complaints processes and made significant changes which it hopes will prevent similar issues arising in future. The Ombudsman sees such learning from complaints as positive.

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Final decision

  1. The Council acted without fault in its handling of planning applications and enforcement actions relating to the gate installed by the developer in this case.
  2. The Council has offered a remedy for the acknowledged delays in its handling of Mr X’s complaints and has altered its complaints processes to prevent this happening in the future.
  3. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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