Summary: Mrs D complains the Council has set unfair planning conditions on her husband’s business and is wrongly prosecuting them for planning breaches. The Ombudsman has discontinued the investigation.

The complaint

1. Mrs D complains on behalf of her husband, Mr D, that:
• The Council set planning conditions which were unfair, have cost their business nearly £400,000 and caused it to lose income
• The Council is wrongly prosecuting them for breaches of planning conditions
• A Council planning enforcement officer trespassed on their land
2. Mrs D says the situation has had a huge detrimental impact on her and Mr D’s mental and physical health. It also affects Mr D’s employees and their families.

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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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint

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

4. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
5. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:
• delay by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.
6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. 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

8. I spoke to Mrs D about her complaint and considered the information she sent and the Council’s response to her complaint.
9. I gave Mrs D and the Council an opportunity to comment on my draft decision.

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What I found

What happened

10. Mr D runs a waste management business which requires planning permission from the Council as waste planning authority. The business moved to its current location in 2015.
11. In 2016 the Council asked Mr D to submit a retrospective planning application for change of use. Mrs D says this was because a neighbour had complained to the Council about a possible breach of planning control. She says the neighbour has an undue influence on the Council.
12. The application was approved in February 2018, subject to planning conditions. These included conditions relating to operating hours and vehicle movements.
13. The Council says that since then it has recorded breaches of planning consent. In July 2018 the planning enforcement officer went onto Mr D’s land to check the business was complying with some of the conditions and take photographs. Mrs D says this was dangerous and a breach of site health and safety regulations.
14. The Council has issued breach of condition notices and is currently prosecuting Mr D for planning breaches.
15. Mrs D complained to the local MP and the Council in March 2019. The Council said it could not consider the complaint due to the ongoing legal action.

My findings

16. Mrs D says the planning conditions set by the Council are too restrictive and costly. Mr D had a right of appeal to the Planning Inspector to challenge the conditions at the time the application was approved. I can see no reason why such an appeal could not have been made. The Ombudsman cannot investigate when it was reasonable for someone to appeal to a government minister.
17. Mrs D also complains about the Council’s handling of the planning enforcement case. When a development is in breach of the granted planning permission, the Council is entitled to either:
• decide the discrepancy is not significant enough to require it to take action
• decide the issue requires enforcement action or
• ask the developer to supply a retrospective planning application, which it may approve or refuse.
18. I do not consider the Ombudsman should investigate the Council’s decision to serve the breach of condition notices and prosecute. Mr D had a right of appeal against any planning enforcement notice. In addition, someone served with a breach of condition notice can challenge its validity, or the validity of a council’s decision to serve it, by applying to the High Court for judicial review. I consider it was reasonable for Mr D to present his defence against the notice at court. That was the appropriate route for him to use to get the notice withdrawn.
19. Mrs D says the planning enforcement officer trespassed on their land. Planning enforcement officers have legal powers of entry onto sites under s196 of the Town and Country Planning Act 1990, to determine whether a breach of planning control has taken place and to assess its impact. There is therefore no evidence of fault by the Council. In addition, action in respect of civil wrongs such as trespass are usually heard in the County Court. This means it would be reasonable for Mr D to take legal action if he considers there has been a trespass and the Ombudsman therefore cannot investigate.
20. Mrs D says the Council has not imposed such severe restrictions against other businesses in the area. The Council says these are industrial operations (rather than waste management) so their planning regulation falls not to it but to the District Council. So this is not evidence of fault by the Council.

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Final decision

21. I have discontinued my investigation for the reasons set out above.

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Investigator's decision on behalf of the Ombudsman