Summary: Mr and Mrs X complained about how the Council dealt with planning matters on their neighbour’s land. We ended our investigation because we are unlikely to find evidence of fault or an injustice we could remedy.

The complaint

1. Mr and Mrs X complained about how the Council dealt with planning matters on land next to their home and business.
2. The Council refused a planning application and served an enforcement notice issued against the site owner, who appealed to the Planning Inspectorate. Mr and Mrs X were unhappy with how the Council acted before the Planning Inspector made his decision. They were also unhappy with how the Council dealt with breaches of planning control since the appeal was decided.

Back to top

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
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

Back to top

How I considered this complaint

4. I read the complaint and discussed it with Mr and Mrs X’s representative. I read the Council’s response to the complaint and considered documents from its planning files, including decisions by the Planning Inspectorate, the plans and the case officer’s report.
5. I gave Mr and Mrs X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received.

Back to top

What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
11. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
12. Planning applicants or individuals against whom councils take enforcement action may appeal to the Planning Inspectorate. Planning Inspectors act on behalf of a Government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

13. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

Background

14. Mr and Mrs X live and run a holiday business in the countryside. The business of the owner of the land next to theirs involved an outdoor recreation use, including holiday accommodation.
15. Several years ago, the Council received complaints about a breach of planning control on the neighbour’s land relating to the use of holiday accommodation. Planning enforcement officers visited the site, decided there was a breach of planning control, and invited the neighbour to submit a planning application.
16. The neighbour submitted a planning application, and it was considered by a planning case officer. Mr and Mrs X objected to the application, which they felt would cause noise and disturb their amenity and their customers.
17. The case officer recommended approval of the application subject to planning conditions. The Council’s planning committee refused the application against the case officer’s advice.
18. The neighbour did not comply with the Council’s requests to conform to planning controls, so the Council served an enforcement notice. The neighbour appealed against the enforcement notice and the appeal was heard by a Planning Inspector.
19. The Planning Inspector allowed the appeal, for the following reasons.
• The enforcement notice was quashed, partly because it was no longer possible to comply with it as the development and use had already begun.
• The use of the site should co-exist with Mr and Mrs X’s use of their land without unacceptable noise and disturbance.
20. The Planning Inspector said that there was no compelling evidence of undue noise disturbance and there was no reason why the uses, either side of the boundary Mr X shares with his neighbour, could not co-exist.
21. The Inspector allowed the appeal. As well as quashing the planning enforcement notice, the Planning Inspector approved the use of the site as it exists, subject to several conditions, some of which related to landscaping and earthworks. The conditions left the location, design and details of the earthworks and landscaping for the Council to decide.
22. After the Planning Inspector’s decision, the Council approved details submitted to satisfy the planning conditions. Mr and Mrs X complained to the Council that the neighbour was not complying with the condition details.
23. The Council has said that it visited the site and earthworks were underway, but the work being done does not comply exactly with what was agreed under the planning conditions. There is also landscaping that will need to be completed to soften the visual impact of the earthworks. The Council says it will return to the site soon and decide what, if any, further action is required.
24. Mr and Mrs X’s representative also complained about how the Council dealt with him and the complaint during the complaints process. He says that recently, he complained to the Council the site was not safe while excavation works were underway. The representative says he also reported the work site to the Health and Safety Executive.

My findings

25. Before we investigate complaints, we need evidence to show the individual complainant was caused a significant injustice by the Council’s actions. We rely on the injustice to the complainant to justify the disruptions our investigations inevitably cause to the day-to-day work of council officers and the pressure that is placed on the public purse.
26. I am aware of Mr and Mrs X’s longstanding concern about their neighbour’s land and the Council’s involvement as a planning authority. I can see they have spent a great deal of time and expense putting their concerns to the Council and the Planning Inspector. But I do not think that further investigation is likely to result in a finding of fault or a remedy, and my reasons are as follows.
• Much of what Mr and Mrs X complain about happened before the Planning Inspector made his decision. Even if we were to investigate and find fault before the appeal was decided, we would not be able to show it made any difference to the outcome of the Planning Inspector’s decision.
• The Inspector found the use of the site acceptable in planning terms and did not find that Mr and Mrs X were unduly affected by it. In these circumstances, I cannot say the development and use of the site should be different or that it causes significant injustice to Mr and Mrs X.
• Since the Inspector made his decision and approved the use of the site and the developments on it, the Council has been responsible for enforcing planning conditions. The process we expect for planning enforcement is simple. We expect the Council to consider the allegation, to carry out a proportionate investigation and, if it finds a breach of planning control, to decide what action if any is necessary. This process is underway and while we do not yet know the outcome, I have seen no evidence of fault in the process so far.
• Mr and Mrs X’s representative has also complained about how the Council responded to him during the complaints process. We are entitled to limit the scope of our investigations to focus on the main issues. In my view, it is appropriate to focus on planning matters but not those that have arisen during the complaints process. I think it is unlikely I would find evidence of significant fault or injustice to the complainants to justify further investigation.
27. For these reasons, I should not investigate Mr and Mrs X’s complaints further.

Back to top

Final decision

28. I ended my investigation as I am unlikely to find significant fault or injustice.

Back to top

Investigator's decision on behalf of the Ombudsman