Summary: There was fault by the Council, because it misunderstood the permitted development rules when considering a prior approval application. This caused an injustice to the complainant, which it has agreed to remedy. However, with regard to the other issues raised by the complainant, we have either found no fault, or have discontinued our investigation.

The complaint

1. I will refer to the complainant as Mrs B.
2. Mrs B complains about the Council’s handling of two prior approval applications for a new agricultural building on farmland adjacent to her home. The Council made an error in its consideration of the first application, which meant its decision was flawed, and making it necessary for the farm owner to submit a second application for a modified design.
3. Mrs B complains:

• she was put to time, trouble and expense in proving the Council’s error;
• the original, flawed, decision is still visible on the Council’s planning portal, with no indication it has been withdrawn;
• the Council sought to appease the farm owner by approving the second application, and did not properly consider her concerns about the proposal;
• she is now forced to ‘police’ the farm site to alert the Council to potential breaches of planning control, and is distressed at the prospect this may occur;
• there was generally poor communication from the Council during the process.

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The Ombudsman’s role and powers

4. 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)
5. 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)

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How I considered this complaint

6. I reviewed the documents available on the Council’s planning portal and its correspondence with Mrs B.
7. I also sent a draft copy of this decision to each party for their comments.

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What I found

8. Mrs B lives in a rural area. A deer farm abuts her property.
9. On 16 March 2020, the farm owner submitted a prior approval application to the Council. This sought to confirm they could construct a new building to house and feed the deer, as well as to store feed and other farming equipment. For ease, I will refer to this building as ‘the barn’.
10. On 1 April, the Council decided that prior approval for the barn was not necessary. This meant the Council was satisfied it fell within the bounds of permitted development and required no further permission.
11. Mrs B then contacted the Council. She highlighted that buildings to house livestock do not benefit from permitted development rights, where they are sited within 400m of a ‘protected building’. As the proposed barn was closer than 400m to her property, this meant the Council should not decided it required no permission.
12. After some consideration the Council accepted Mrs B was correct. It contacted the farm owner to explain its mistake, and confirm they could not construct the proposed barn under permitted development. The farm owner had, by that point, begun some initial excavation work.
13. On 5 May, the farm owner submitted a new prior approval application. This was for a building on the same site, but significantly smaller, and for the purpose only of storing feed and equipment. As it no longer contained a proposal to use the barn to house livestock, the Council again concluded the permitted development rules were satisfied, and confirmed the application did not require prior approval on 2 June.
14. Mrs B submitted a Stage 1 complaint to the Council on 12 June. She explained in detail her concerns about how the Council had considered the second application, and that she felt it had not properly taken into account the impact of the barn on her own property. She said she did not believe the second application would have been approved if it had not been for the error with the first, and complained about the effort it had taken her to get the Council to accept it had made the error.
15. Mrs B asked why the first application was not labelled as withdrawn on the Council’s online planning portal. She asked several questions about the second proposed design could meet the farm owner’s needs, why the case officer’s report did not discuss whether an Environmental Impact Assessment (EIA) was necessary, why the Council has not considered whether any planting or screening was necessary, and how the Council would ensure the building was not used to house livestock in future.
16. She also asked the Council why the farm owner believed there was a public consultation process for prior approval applications, why there had been no validation of the details in the farm owner’s application form, and for details of the Council’s working processes in considering such applications. She complained the Council had no Service Level Agreement for communicating with members of the public. She also asked how the Council considered development in a Special Landscape Area, and why the application had “accommodated the needs of livestock on agricultural land” when this was not part of planning control.
17. The Council responded on 25 June. It explained the purpose of the prior approval applications was only for the Council to decide whether certain aspects of the proposal – its siting, design and external appearance – required prior approval. The Council said the farm owner was now aware “his conclusions” about whether the original proposal was permitted development could be open to interpretation.
18. The Council said it could not answer questions about the farm owner’s business, but any future proposal would be subject to the appropriate planning regulations, and the hardstanding proposed for the original application was incorporated into the second.
19. It explained the proposal did not meet the threshold for an EIA and this was why it was not mentioned in the case officer’s report. As prior approval was not needed, there was no scope for the Council to require screening. It said its enforcement service was reactive, and it would respond to any future complaints about planning breaches.
20. The Council said it accepted application details in good faith, and pointed out any errors by the applicant could invalidate its decision. It said it could not explain why the farm owner believed there was a public consultation process for such applications, as this was not required by the law, and the Council had not informed the farm owner it was.
21. The Council explained how its officers considered applications, and its quality control process. It said it could not respond individually to comments about planning applications, but that it considered any it received.
22. The Council explained the Special Landscape Area designation was not a consideration for a prior approval application, reiterating it could only consider the siting, design and external appearance. It said the farm was greenfield land and did not require planning permission for livestock to be kept on it.
23. Mrs B submitted a Stage 2 complaint on 30 June. She complained the Council had not acknowledged its mistakes, apologised or attempted to put them right. She said there had been no explanation of the investigation process, and some of her questions had not been answered.
24. Mrs B complained the Council had given inaccurate information and misleading advice, inadequate responses to questions about proposed developments, had failed to consider her objection and to take into account material planning considerations.
25. The Council replied on 24 July. It said it would address unanswered points raised in Mrs B’s Stage 1 complaint, as well as those in her Stage 2 complaint.
26. The Council explained the original case officer had mistakenly believed the ‘400m’ limit for permitted development of this type referred only to listed buildings. However, it said the purpose of prior approval applications was to release the burden of formal planning permission, and reiterated it could only consider limited factors, which it was satisfied with in this case. The Council again said it could not explain why the farm owner believed there was a public consultation process for this type of application.
27. The Council explained it was not technically possible to ‘withdraw’ an application of this type, and the farm owner had simply decided not to implement the proposal. It said the objection Mrs B had submitted for the second application was explained in the case officer’s report, and that the points she raised had been given due consideration. The Council said it had undertaken a visit to the site without the farm owner present, except where they were required to allow officer’s access.
28. The Council said it had explained its legal team’s view on her letter about the error with the original application. It explained there was no local validation list for prior approval applications, and that the law required only the submission of a description of the proposed development and any materials to be used, along with the required fee.
29. The Council said the case officer’s report explained how they had considered the relevant factors, such as siting. It confirmed it accepted information submitted with the application and good faith, and said it could not routinely inspect the area for potential breaches of planning control. The Council said it was satisfied the barn was needed for agricultural purposes and did not consider it necessary to ask detailed questions about what equipment was to be stored there.
30. The Council apologised if Mrs B felt its Stage 1 response was not thorough, but noted it had answered all of her questions.
31. Mrs B referred her complaint to the Ombudsman on 10 August.

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Legislative background

Permitted development

32. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.

Prior approval

33. Some permitted development proposals require an application so the Council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as applications for prior approval (or sometimes ‘prior notification’).

Planning enforcement

34. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. 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 July 2018, paragraph 58)

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Analysis

35. I will address each point of Mrs B’s complaint in turn. However, first, I will make some general points about this type of planning application, as it is not straightforward.
36. The construction of agricultural buildings, within certain limitations, is permitted development. This means the developer does not need to seek planning permission from the local authority, because the Government has already granted it.
37. However, the developer may still need to seek prior approval from the local authority for some aspects. If the developer fails to do so, they lose their permitted development rights.
38. In this case, the farm owner applied for prior approval. If the Council had decided the barn needed its prior approval, it would then need to have considered whether to grant or refuse this, as a second stage. However, in both applications here, the Council’s decision was that the barn did not need prior approval.
39. The Council has therefore given neither planning permission, nor prior approval, for the barn, either in its original or modified forms.

Time, trouble and expense incurred in proving the Council’s error

40. The Council has accepted the case officer made an error in the consideration of the first application.
41. In short, the rules say a building for housing livestock does not benefit from permitted development if it is sited within 400m of a ‘protected building’. In this context, a protected building is any non-agricultural or residential building, except those which house farm workers. As Mrs B’s home is within 400m of the site, this means the original proposal did not have permitted development rights.
42. However, although the case officer noted this rule while considering the application, they wrongly believed it applied only to listed buildings, of which there is none within 400m. The case officer therefore did not identify the barn could not be built under permitted development rights. This is fault.
43. Mrs B says the Council only identified this error because she pointed it out, having taken advice from a planning consultant. I do not have copies of the full range of correspondence between Mrs B and the Council, and so I cannot objectively confirm this; but I note the Council has not disputed this interpretation, in its correspondence with me, and so on the balance of probabilities I accept this.
44. Mrs B also complains she had to struggle to get the Council to accept its error. Again, without access to all the correspondence, I cannot draw a firm conclusion on this.
45. But the Council’s original decision, and the farm owner’s submission of the second application, were separated only by approximately one month (1 April and 5 May respectively). And so, all the intervening events – Mrs B contacting the Council with her concerns, the Council considering and accepting them, notifying the farm owner, and the farm owner preparing a new application – must have happened within that month.
46. This being the case, I am not persuaded Mrs B’s efforts to right the Council’s error were particularly protracted, even if it did not immediately accept her submissions. Though none of this detracts from the fact the Council should not have made the error in the first place, nor that Mrs B should not have had to prove it.
47. Mrs B says she paid £600 in fees to her planning consultant to obtain the advice about the Council’s error. Any money Mrs B spent on correcting the Council’s error is a clear injustice to her, which the Council should remedy. I note, however, Mrs B also used her planning consultant to prepare and submit the objection letter regarding the second application. I should make clear, any fees arising from this piece of work are separate, and not part of the injustice I have identified here.
48. I will therefore make a recommendation the Council offer to refund the consultant’s fees, specifically for providing advice about the error in the first application. I would expect Mrs B to submit evidence, such as an invoice, for the Council to consider first. If it is not possible to separate the consultant’s fees for the advice about the first application, from any overall fees Mrs B paid, then the Council should offer to refund a reasonable proportion of the fees.
49. Separately, I also consider the Council should offer Mrs B a remedy of £150 for her time and trouble in pursuing this matter.
50. I find fault, causing injustice, in this element of Mrs B’s complaint.

The original decision is still visible on the Council’s planning portal

51. Mrs B complains the original decision is still showing as ‘approved’ on the Council’s online planning portal, with nothing to indicate it should not have been approved. I have verified this remains the case, at the time of writing.
52. The Council has explained it is not possible to ‘withdraw’ an application of this type. Although it accepts it made an error in the first decision, the farm owner is aware of this and does not propose to build the original design.
53. I appreciate why Mrs B would prefer to see the first application removed from the planning portal. However, and although it was flawed, the decision was effectively just a form of advice to the farm owner – it did not give them permission to do anything. Given the farm owner submitted the modified application after the Council told them of its error, there does not appear to be any reason to fear the owner will now pursue the original design.
54. Taking this together, I do not consider there could be any injustice to Mrs B from the fact the application is still on the portal. I have therefore discontinued my investigation of this point.

The Council sought to appease the farm owner by approving the second application, and did not properly consider Mrs B’s concerns about the proposal

55. Mrs B considers the Council approved the second application only to appease the farm owner, because of its error with the first application, and in doing so failed to properly consider her objection.
56. I consider this a misapprehension.
57. First, it was the farm owner’s decision to submit the second application. The Council has no control over what applications are submitted; its role is simply to make a decision on the applications it receives, in accordance with the relevant planning regulations.
58. Second, this was not an application for planning permission, but a prior approval application. As the Council has explained, in considering such applications, it can only look at a very limited range of factors – the siting, design and external appearance of the proposal. The Council has no power to require screening, for example.
59. Third, and most critically, the Council’s decision here was that the proposal did not require its prior approval anyway. In effect, this means the proposal did not reach the threshold where the Council had any control over it whatsoever.
60. As I have explained, in such cases, planning permission is not given by the Council, but by the Government. All the Council has done is consider whether the proposal fits into the criteria set down by the Government. As it has decided it does, the Council has no choice but to respond positively to the farm owner’s application.
61. I appreciate Mrs B went to some time and effort to submit an objection to the second application. However, the case officer’s report covers all the points of objection which the Council had received, and explains why these issues cannot be taken into account.
62. The Ombudsman’s role is to review the adherence to the Council’s adherence to procedure when making decisions. If the Council has followed the correct process, taken into account relevant factors, and clearly explained its decision, we cannot generally criticise it. We do not provide a route of appeal against Council decisions, cannot substitute the professional judgement of Council officers with our own, and we cannot uphold a complaint simply because a person disagrees with the Council’s decision.
63. And so, as I see no evidence of fault in how the Council considered the second application, I cannot criticise it.
64. Mrs B has raised an additional point with me. She says the Council has made an additional entry in the ‘Constraints’ section of the second application, to include ‘Special Landscape Area’. This is despite the Council advising her the Special Landscape Area designation was not relevant to a prior approval application.
65. While I accept this is accurate, I do not consider the inclusion of this factor in the listed constraints to mean it is relevant to the application after all. Again, the Council has little to no control over applications of this type, and can generally only consider factors, such as special landscape, where deciding whether to grant planning permission. I accept the Council was correct to say it could not consider this matter as part of this application.
66. I would add, there are several other listed constraints on the planning portal which also do not feature in the Council’s consideration of the application – for example, the existence of three different public rights of way, and a tree preservation order, but there is no suggestion the proposal would interfere with these. It appears, therefore, this list simply reflects factors and policies which may be relevant to planning applications in the area; it is not a list of issues which the Council is bound to consider for that particular application. So I am satisfied there is no fault here.
67. Either way, I acknowledge this is a potential source of confusion. I do not consider it a significant point; but I would ask the Council to note this, as it may wish to consider whether it is practical to introduce some clarification to this function on its planning portal.
68. I find no fault here.

Mrs B is forced to ‘police’ the site for potential breaches of planning control

69. Mrs B says she is concerned the farm owner may modify the barn to allow it to house livestock, which would make it a breach of planning control. She complains it falls to her to monitor for signs of this happening, and is suffering distress at the prospect it will.
70. The Council has explained its enforcement service is reactive – in other words, it responds to complaints about possible planning enforcement matters, rather than proactively monitoring the area.
71. This is entirely normal, to the point where I would consider it remarkable if the Council’s policy was to do anything else. Given the size of its area, the number of planning units within it, and the different ways in which planning control can be breached (some of which would not be obvious from a brief visual inspection), blanket proactive monitoring would clearly be impractical.
72. Further to this, the very purpose of planning enforcement is to tackle breaches of planning control which have a significant negative effect. It is not an automatic process every time a breach of planning control occurs, and Government guidance is that councils should only use their enforcement powers where it is proportionate. So the simple fact a breach may have occurred does not mean the Council is bound to take action.
73. I acknowledge Mrs B’s concerns about the possibility the farm owner may use the barn for a purpose which is not allowed under permitted development. But I can see no reason to suspect they will do so, beyond speculation.
74. In any event, even if the owner does intend to breach planning control, there is no power the Council can use here until that happens. It has no right to supervise the owner’s use of the barn, and, as I have said, proactive monitoring would be impractical.
75. If there is a breach of planning control, the Council will then have a duty to investigate it, and decide whether to take action. If Mrs B is dissatisfied with its investigation or decision, then she may raise a further complaint about it then. Until that point though, there is nothing further to consider here.
76. I find no fault here.

There was generally poor communication from the Council during the process

77. As I discussed previously, I do not have the full range of correspondence which took place between Mrs B and the Council during the events I have described here. I cannot make any objective finding, therefore, on whether the Council’s level of communication was generally adequate.
78. Considering the complexity of what happened here though, I must again remark on the relatively short period in which it all took place – from the farm owner’s first application, to the Council’s response to Mrs B’s Stage 2 complaint, took a little over four months. In my experience, this not seem a particularly drawn out or protracted process, although I accept this does not necessarily mean the Council was always prompt in its communication with Mrs B.
79. Either way, I have already decided to recommend the Council offer Mrs B a payment to remedy her time and trouble. Even if I were to accept there had been poor communication here, I would not recommend any additional remedy for this. I therefore do not consider it proportionate to investigate this matter further.
80. I have discontinued my investigation of this point.

Summary

81. I find fault causing injustice to Mrs B, with regard to her complaint about the Council’s error with the first application. The Council should remedy this.
82. I have discontinued my investigation of Mrs B’s complaint about the first decision still being visible on the Council’s planning portal, because I do not consider this represents an injustice to her.
83. I find no fault with regard to Mrs B’s complaint about the Council’s handling of the second application.
84. I find no fault with regard to Mrs B’s complaint about the Council’s enforcement policy.
85. I have discontinued my investigation of Mrs B’s complaint about the Council’s correspondence, because I would not recommend any additional remedy, regardless of any findings I could make on it.
86. As part of her complaint to the Ombudsman, Mrs B listed several other improvements she considers the Council should make. These are training for staff; the implementation of a supervisory ‘hierarchy’ for planning case officers, and a checklist to ensure quality control in their decision-making; and the implementation of Service Level Agreements between the Council and members of the public.
87. While the Ombudsman can, and frequently does, make recommendations for staff to receive re-training, and/or changes in policy, to avoid the recurrence of fault, I do not consider such a recommendation is warranted here. I have identified a single error by a single case officer. There is no reason to believe this is a wider problem amongst Council planning staff, and so I do not consider it would be proportionate to recommend training or policy changes for this reason alone.
88. And I have made no findings on Mrs B’s complaint about communication, so I could not make any recommendation for improvements on this issue. However, we would generally consider the implementation of Service Level Agreements or similar to be a matter for the Council to decide, and so this is not a recommendation I would likely make anyway.

Agreed action

89. Within one month of the date of my final decision, the Council has agreed to:

• offer to refund the fees Mrs B paid to her planning consultant, for the advice she received which led to it accepting it had made an error in the first application. If it is not possible to separate this element from the overall fees she paid to her planning consultant, the Council should offer to refund a reasonable proportion of the overall fees; and
• offer to pay Mrs B £150 to reflect her time and trouble in pursuing this matter.

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Final decision

90. I have completed my investigation with a finding fault causing injustice.

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Investigator's decision on behalf of the Ombudsman