Summary: Mrs X complains the Council has not properly dealt with planning permission or enforcement action regarding a development near her home. The Council was at fault because it delayed looking at Mrs X’s complaint about unauthorised development. The Council has already paid Mrs X £1000. I consider this a suitable remedy.

The complaint

1. Mrs X complains the Council has not properly dealt with a planning development near her home because:
• it has not properly considered a planning application because it considered a previous decision based on an error;
• Councillor Y did not declare an interest properly;
• it has not properly responded to a Freedom of Information (FOI) request; and
• it has not properly considered enforcement action regarding reported unauthorised development on the site.
2. Mrs X says she has suffered stress and been ignored when she has reported unauthorised development.

Back to top

What I have investigated

3. I have investigated that part of Mrs X’s complaint about how the Council dealt with a planning application, declaration of interests and enforcement action. The final section of this statement contains my reasons for not investigating the rest of the complaint.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
5. 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)
6. 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)
7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

Back to top

How I considered this complaint

8. I spoke to Mrs X and considered the details of her complaint as well as the Council’s response. I reviewed documents sent by the Council and available planning documents.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Planning permission

10. Planning permission is required for the development of land. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
12. Councils need to provide evidence to show they have considered the material planning considerations. This evidence is normally found in the case officer’s report and the planning decision notice.

Planning enforcement

13. Planning permission may be granted subject to:
• conditions relating to the development and use of land.
• a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.
14. 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)

The Council’s constitution

15. Councillors must declare certain disclosable pecuniary interests and other interests at the beginning of a meeting or when it becomes apparent.

What happened?

16. In 2016 the Council decided that prior approval was not needed for the development of a barn. In 2018, the Council identified that the decision was in error, because the proposed barn was within 400m of a protected building, and therefore required planning permission to accommodate livestock.
17. Following discovery of the error, the landowner submitted a planning application for a new barn on the same site. The planning application was considered in January 2020 and the Council granted planning permission.

Analysis

18. The Ombudsman only looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.

Planning application

19. The existing permissions are a material consideration in the planning decision. The officer’s report for the planning application outlines the site history. It clearly and correctly sets out the basis on which the application should be determined, stating, “the application does not seek the change of use of the barn to include use for livestock, and the application must be considered on the principle of a new proposed barn in this location, including use of the barn for livestock. However, it is a material consideration in the determination of the application that the applicant could fully implement [the earlier decision], save that it could not be used for livestock.”
20. The minutes of the meeting show that Mrs Y’s objections were considered and there was discussion about the development size, materials used and profitability relating to potential future use. The Council approved the application based on the application in front of it. This was not fault by the Council.

Declaration of interest

21. The Council says its members’ Code of Conduct requires Councillors to declare certain interests and Councillor Y’s property interest is not covered by this. I agree with the Council. The minutes of the planning meeting show that Councillor Y declared a property interest in respect of the application and took no part in the decision. This was not fault by the Council.

Enforcement

22. Emails between the Council and Mrs X show there was a ten week delay before the Council responded to Mrs X’s report of a potential breach of planning permission. Its response said without further evidence it would be unable to take enforcement action and Mrs Y asked the Council for clarification about what evidence was required and what would be considered sufficient.
23. The Council’s complaint response to Mrs X in September 2020 did include a description of what information the Council needed to consider breaches of planning permission. Further emails between the Council and Mrs Y show there was a four month delay before the Council responded to Mrs Y’s request for clarification and sent her a template recording log. The recording log duplicated the information given in the Council’s complaint response.
24. The Council did consider whether enforcement action was necessary. However, the delays in replying to Mrs Y potentially compromised its ability to consider this issue fully. The Council “agree that the standard of responses both in timeliness and substance have fallen significantly short of that which you would have expected of the Council”. This was fault by the Council. Mrs Y remains uncertain whether the Council would have taken formal enforcement action at an earlier point in time.
25. The Council has already paid Mrs Y £1,000. This is a suitable remedy.

Back to top

Final decision

26. I have found fault by the Council causing injustice to Mrs X. The Council has already remedied the injustice I have found. I have now completed my investigation.

Back to top

Parts of the complaint that I did not investigate

27. I have not investigated that part of Mrs X’s complaint about the response to a Freedom of Information request because this is a matter for the Information Commissioner.
28. I have not investigated that part of Mrs X’s complaint about enforcement action before November 2019 because this is out of time and I see no valid reason to investigate it.

Back to top

Investigator's decision on behalf of the Ombudsman