Summary: Miss C says the Council was at fault for wrongly granting planning permission to her neighbour to build a stable near her property and for failing to take enforcement action to prevent breaches of planning conditions. She says this caused her injustice because her horses were injured which has been expensive and distressing. The Council was not at fault. It considered all material planning considerations. It also considered taking enforcement action against the neighbour and did so on several occasions.

The complaint

1. The complainant, who I have called Miss C, says the Council was at fault for the way in which it handled a planning application to build a stable block made by her neighbour, Mr N. She says there was fault in:
1. The application and consultation process. In particular:
1. The plans submitted with the original application were later changed and the original plans are not available on the Council’s planning portal.
2. Miss C’s property was misnamed on plans on the Council’s planning portal.
3. The application, which is for a stable, originally included plans for a dry turnout area, which the applicant later used for riding and lunging.
4. The Council failed to erect notices at the site or publish them on the planning portal in July 2020.
5. Relevant information about the application has not been lodged on the planning portal.
6. The Council tried to prevent her from publishing her objections on the portal at a time when its policy stated that only objections published on the portal would be considered.
7. A planning officer, Officer O, told Miss C that the application would only be approved because, if it was not, the Council would face expensive litigation.
8. Officer O drew incorrect comparisons between Miss C’s use of her land and her neighbour’s use of land.
9. Miss C’s neighbour continued to build his stable at a time when planning permission had been quashed by the High Court.
2. The planning officer’s report and the decision notice; In particular:
1. The report did not adequately consider wildlife law.
2. The provision for wildlife was inadequate.
3. A condition that Miss C’s neighbour should plant a hedge was impossible to comply with.
4. The hedge referred to in (3) above would not be sufficient to protect Miss C’s privacy.
5. The officer’s report used incorrect terminology to describe the equine operations planned.
6. The officer’s report states that the Council’s ecologist had stated that an ecological survey was not required.
7. Miss C’s concerns were not properly summarized in the report.
8. There was insufficient investigation into the impact on wildflowers and the ecology.
9. The development damaged a hedgerow. Therefore, the application should not have been granted.
10. The applicant has not conserved or enhanced the natural beauty and special qualities of the area, as required by policy.
11. The report incorrectly refers to Miss C’s stable block and surrounding area as ‘a riding arena’.
12. No mitigation was put in place to protect her property.
13. The report stated that the officer thought there would be no harm to surrounding hedgerows. Miss C says that a hedge was damaged.
3. The Council’s failure to take enforcement action about breaches of planning conditions. In particular:
1. After being informed by a Council officer in August 2020 that if Mr N fed horses in his field, that would not be an agricultural use of the land, Miss C informed the Council formally in mid-August 2020 that her neighbour was feeding horses in his fields g. The Council did not respond until late September when she complained again.
2. Miss C told the Council in late July 2020 that her neighbour had been felling trees and removed hedges in his field. She says he did so, contrary to the planning officer’s report which stated that ‘no hedges or trees will be affected by the proposed development’. She feels the Council’s response was inadequate.
3. Miss C does not agree with the Council’s tree officer who stated that her neighbours were managing the site ‘sympathetically’.
4. Miss C also says that a Council officer involved in the case is a relative of her neighbour and may have improperly influenced the Council’s actions.
2. Miss C says that, because of Council fault, she has suffered injustice because she can no longer use her own stable block or turnout area which is sited on the border between Mr N’s land and her own because her horses have been injured and, three have died, because of the proximity to Mr N’s horses. She says she has incurred large bills from her vet.
3. Miss C would like the Ombudsman to overturn the planning permission or, if this is impossible, to require Mr N to put in place mitigation measures to prevent further injury to her horses.

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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. 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

6. I spoke to Miss C and read the material she had provided. I then wrote an enquiry letter to the Council and organised an interview with the planning officer in the case. I considered the information I had gathered and applied any relevant law and guidance.
7. Miss C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Application process

8. The central government has passed laws and regulations and issued guidance to control planning in England. The general rule, set out in the National Planning Policy Framework, is that permission for planning must always be granted by a local planning authority, unless there are sufficient reasons not to do so. Reasons not to do so include a finding that the development would interfere with the ‘amenity’ of local people and that the development does not comply with local planning policy and guidance.
9. Councils are the planning authorities for their areas. Those wishing to carry out development in the area must usually ask their council for planning permission.
10. On receipt of an application for planning permission, councils must process the application correctly. They must notify local people affected by the development. An officer must write a report considering the application and making a recommendation either for a grant or a refusal of permission. The officer will have to consult various professional figures: ecologists, environmental health officers, tree protection officers and so forth.
11. The Council will then decide whether to grant or refuse permission. Councils usually accept the planning officer’s recommendation.

Contents of planning officer’s report

12. A planning officer’s report does not have to contain every detail about the application. It is accepted that it is written to be shared with a knowledgeable readership, (often other planning officers who make the decision) who have a substantial local and background knowledge. A decision-maker does not need to rehearse every argument relating to each matter and every paragraph. (Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 [AB/13])

Material planning considerations

13. When making a planning decision, councils must only consider ‘material planning considerations’. There is no definitive list of what is and what is not a material consideration. However, in general the courts have taken the view that planning is concerned with land use in the public interest, so that the protection of purely private interests such as the impact on the value of a neighbouring property or loss of private rights to light could not be material considerations.

Tree preservation orders and hedgerows

14. If a council wishes to protect a tree it can place a tree preservation order (TPO) on it. This means that anyone who cuts it down would face penalties including possible prosecution. If a tree is not protected by a TPO, a landowner is free to cut it down if they wish. Some hedgerows are also protected.

Enforcement

15. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control is defined in the Town and Country Planning Act 1990 as:
1. The carrying out of development without the required planning permission; or
2. Failing to comply with any condition or limitation subject to which planning permission has been granted.
16. Where there is a breach of a planning condition, the authority has a range of options. It may, for instance, consider that taking enforcement action is not ‘expedient’. Or it may take informal enforcement action by contacting a developer and asking them to make changes. It may serve a Breach of Condition Notice. Failure to comply with such a Notice is an offence that may be tried in the magistrates court.
17. The Ombudsman cannot generally find a planning authority at fault for a failure to take enforcement action. However, we can find one at fault for a failure to properly consider whether enforcement action is ‘expedient’.

Areas of Outstanding Natural Beauty.

18. Areas of Outstanding Natural Beauty (AONBs) are areas granted protections because of their beauty. The National Planning Policy Framework says, ‘When considering applications for development within National Parks, the Broads and Areas of Outstanding Natural Beauty, permission should be refused for major development other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest.’

Agricultural use of land categories

19. There is a difference, in planning law, between ‘agricultural use’ of land and ‘equine use’ of land. If a landowner uses agricultural land for equine use, a council may take enforcement action against them, if the authority considers such action to be ‘expedient’. However, the line between agricultural and equine use can be blurred. This line is particularly difficult to define in the case of a private owner who has only one or two horses.
20. ‘Agricultural’ land use can include the keeping of horses but, generally, only if the horses work in agriculture or if the land is used solely for the purposes of grazing. Many livery stables and equine yards operate on agricultural land where they graze the horses, taking them away from the site for strictly ‘equine’ purposes such as training. In short, owners may keep horses on agricultural land but cannot ride them there. (Town and Country Planning Act 1990, s 336)

Judicial review

21. If a member of the public believes that a council’s decision is in some way flawed, they can apply for a review of that decision by a judge of the High Court. This is known as an application for judicial review. If the judge agrees that the decision is so flawed that it justifies doing so, he or she can quash the decision and send it back to the council for redetermination.

What happened

22. Miss C lives in a rural part of the Council’s area. She has a stable and several horses. She has two near neighbours, Mr N, who lives 150 yards away but has land which borders Miss C’s garden and house. Her other near neighbour, Mr P, lives not far from her.
23. In November 2019, Mr N applied for permission to build a stable and turnout area in a field near the border with Miss C’s land close to where her house and stable stand. It was also very close to Mr P’s house. Miss C did not object. Mr P did.
24. The Council granted permission in April 2020. Miss C says that, by then, Mr N had already moved his horses into the field. As soon as he did so, Miss C says, her own horses became agitated. Mr N’s land is some 10 feet higher than hers where their fields meet. This means Miss C’s horses can hear Mr N’s horses but cannot see them. This, she says, causes them to bolt and they have been injured on several occasions.
25. After permission was granted, Mr P applied for a judicial review of the decision. He argued that the planning officer’s report did not include a consideration of whether the application was for a ‘supported use’ under one of the Council’s relevant policies. The case came before a judge in July 2020. The judge agreed with Mr P and quashed the Council’s decision. The judge made no finding as to whether the use was, in fact, ‘supported’.
26. The Council therefore had to retake its decision, this time considering the impact of the relevant policy. In July 2020, it again consulted local people about the application. This time, Miss C objected and vigorously opposed the application on the grounds that:
1. The proposed site was in an area of outstanding natural beauty and outside defined settlement limits.
2. The proposed stables were over 100m from Mr N’s house and very close to hers. The stable could later be sold separately from the house.
3. Mr N had already moved horses onto the site which had affected her amenity and enjoyment of her property.
4. The original planning officer’s report had stated that the development would not cause any damage to hedges and trees but Mr N had already dug up trees and a hedge.
5. The first grant of permission had had a condition attached that Mr N should have the manure heap in a specified spot. She said he had various manure heaps around the field one of which was near a water course.
6. The planning portal gave the wrong date for public consultation.
27. Miss C later wrote two more letters objecting to the application. She said:
1. Too many horses had been kept at the site since April and they were being provided with supplementary feed.
2. Mr N had not been cooperative when dealing with Miss C’s concerns about the effect on her amenity.
3. A hedge had been destroyed.
4. The site was not screened from her property
5. Her horses were agitated. Mr N had said they would soon settle down but this was, she said, to trivialise her concerns.
6. Mr N could have built closer to his own house rather than hers.
28. In her next letter she said:
1. that trees had been felled. The Council had told her that they were not protected by a TPO. Miss C said that, nonetheless, the planning officer had said trees would not be felled.
2. Mr N had removed a hedge. A county council ecologist had told her that there should have been a preliminary ecological assessment.
3. Mr N and his family were now using a turnout area for riding and lunging which was not a permitted use for agricultural land.
4. People could see from the new stables directly into her garden.
5. The development continued to stress her and her horses.
29. Miss C says that Mr N continued to build his stable despite the fact that the permission had been withdrawn. She contacted the Council and spoke to a planning officer, Officer O. Miss C says that, on this visit, Officer O told her that the Council could not now afford to refuse the application as it would result in expensive litigation.
30. Officer O wrote a planning officer’s report. In it, she considered the following:
1. The fact that the development was in an area of outstanding natural beauty
2. There were no environmental health or ecological concerns expressed by expert consultees The area of outstanding natural beauty service said that, if permission was granted, there should be a condition that it should be for private use only and that the development should include a suitable planting/landscaping scheme.
3. Mr P’s and Miss C’s objections were set out including Miss C’s concerns about the welfare of her horses.
4. Relevant Council policies and the National Planning Policy Framework and the impact on the AONB. The distances between the nearest property, (referred to by the name of Mr P’s house)
5. Planning permission was granted in December 2020, subject to various conditions. Among these were that:

• The site should only be used for private purposes and not for any commercial activity.
• There should be no external lighting in an area defined by a red line on one of the approved plans. Any lighting was to be approved by the Council before being installed.
• The manure created should be stored at one predetermined spot.
• Details of an access track should be approved within two months.
• Various nesting boxes for birds, a new hedge and various native trees should be installed.

31. Miss C says Mr N is in breach of most of these conditions.

Enforcement

32. Miss C made her first contact with the Council’s planning enforcement team in late September 2020. She has, since then, complained on many occasions about various matters including allegations that Mr N:
1. Had grubbed out a hedge;
2. Cut down trees;
3. Carried out riding and lunging in the field contrary to agricultural land use rules;
4. Fed his horses and covered them in rugs, again, contrary to land use rules;
5. Moved the route of a hardcore track;
6. Established numerous manure heaps rather than used one in the approved site;
7. Installed external lights
33. The Council has since responded to her notifications and has taken enforcement action. It has required Mr N to use the agreed site for manure and to put the track back on the agreed route. It also required Mr N to remove a hardstanding because it did not match the agreed plans.
34. It has also consulted with its tree officer who says he is satisfied that no enforcement action is justified for alleged planning breaches concerning trees and hedgerows. It has carried out checks to ensure that external lighting is as agreed. It has investigated allegations of other planning breaches elsewhere on Mr N’s farm. It has communicated about these actions with Miss C.

Was there fault causing injustice?

Introduction

35. The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on an application. Our role is to determine whether there has been administrative fault in the way the decision was made.
36. Clearly, there was administrative fault in the Council’s original decision of April 2020. This fault was found by the High Court during Mr P’s application for judicial review. However, that fault has already been addressed by the Court and it is not that decision Miss C questions but the second decision of December 2020. Therefore, I do not intend to find the Council at fault for that administrative error, The Council has already been held to account.
37. Miss C has made numerous allegations of fault against the Council. I have examined them carefully and reached a view as to whether the Council acted in a way which amounted to fault. I have addressed her points set out in paragraph 1 above largely in the order they are found in there with some small changes in order to make addressing the facts of each simpler.

Alleged fault with the application and consultation process.

38. Miss C says the plans submitted with the original application were later changed and the original plans, later amended, are not on view on the Council’s planning portal. There is no requirement for these plans to be on the portal. The Council has approved a set of plans which Mr N has followed. That is the process.
39. Miss C says her property was misnamed on plans uploaded onto the Council’s planning portal. This was unfortunate but it is not itself fault as the Council did not create the map. Further, there was no injustice to Miss C as Officer O visited the site and considered the impact of any development on local amenity.
40. Miss C says the application, which is for a stable, originally included plans for a dry turnout area, which the applicant later used for riding and lunging. This does not show any fault in the Council’s consideration of the application. We can only find fault with councils.
41. Miss C says the Council failed to erect notices at the site or publish them on the planning portal in July 2020. There was no requirement for the Council to do so. The Council placed notices on site and invited public comments in November 2019. Later, the High Court quashed the decision. When the application reopened, it was not a new application but the same one, so the consultation period had already been held. In fact, the Council did hold a further consultation period. Miss C knew about it and commented on at least three occasions. There was no fault and no injustice.
42. Miss C says that some relevant information about the application has not been lodged on the planning portal. I am satisfied that sufficient information was published according to the law and in order to give Miss C her chance to object to the proposal. I do not find fault.
43. Miss C says the Council tried to prevent her from publishing her objections on the portal at a time when its policy stated that only objections published on the portal would be considered. I have looked at the portal. Miss C’s comments are present and also summarised by Officer O in her report. The Council says there were problems with the wording of Miss C’s original complaints. The important matter is that the Council considered her objections. I do not find fault.
44. Miss C says Officer O used incorrect terminology to describe her stables and those of Mr N, using terms such as ‘manege’ and ‘menage’ incorrectly. I do not see how this affected the planning decision. Therefore, I do not find fault.
45. Miss C says Officer O told her in August 2020 that the application would have to be approved because, if it was not, the Council would face expensive litigation.
46. Clearly, any council which took a planning decision for anything other than planning reasons would be at fault. I therefore asked Officer O if she had said this. She said that she had no recollection of having done so and she did not think it was the sort of thing she would have said. We make our decisions on the balance of probabilities. Where, as here, there is a conflict of evidence about what happened we decide what is most likely. Given the lack of any possible corroboration and the opposing views about what was said, I cannot say, even on the balance of probabilities, what happened. I therefore cannot uphold this part of Miss C’s complaint.
47. Officer O says the decision was made on its merits and was a regular planning decision. I have read her report and it seems to contain a fair and sufficient consideration of the facts and relevant considerations. The law says that planning officers reports are written for experts and need not refer to every point.
48. Miss C also says that Officer O drew comparisons between Miss C’s use of her land and her neighbour’s use of land. She says that she never rides her horses. I cannot see that this caused Miss C any injustice. Nor do I think it is incorrect to point out that both Mr N and Miss C keep horses, no matter why they keep them. I do not find any fault or injustice.
49. Miss C says that Mr N continued to build his stable at a time when planning permission had been quashed by the High Court. This was not the Council’s decision but Mr N’s. I cannot find the Council at fault.

Faults with the planning officer’s report.

50. When dealing with Miss C’s objections to the planning officer’s report I have grouped her points into three groups so I can deal with them more easily.

Disagreements with council’s assessment

51. Miss C says the report was faulty because:
1. The provision made for wildlife was inadequate
2. A condition required Mr N to plant a hedge in a spot where it would be impractical to do so and where it would not protect her privacy.
3. There was insufficient investigation into the impact on wildflowers and the ecology.
4. The Council’s ecologist stated that an ecological survey was not required.
52. The above four points are all cases where Miss C disagrees with the Council’s assessment of the merits of the application. The Ombudsman cannot find fault with a council’s decision because a complainant disagrees with it. There must be fault with the way the decision was reached. I have seen no evidence of such fault. The Council’s expert officers made decisions on the acts as they saw them. They are not, therefore, at fault.

Errors of fact

53. A significant misstatement of fact in a planning officer’s report would suggest that the officer had made his decision on incorrect criteria and would possibly amount to fault. Miss C says the report contained the following factual errors:
1. It refers to Miss C’s stable block and surrounding area as ‘a riding arena’;
2. It described Mr N’s stable as a ‘menage’;
3. It failed to mention her property when considering impact on privacy; and
4. Miss C’s concerns were not properly summarised in the report.
54. I do not find that these errors amounted to fault. There is no significant misstatement of fact sufficient to make any difference to the decision to grant or refuse permission. Officer O visited the site and the evidence indicates she made her decision on the facts.
55. Even though Miss C’s house was not mentioned in the report, two officers visited the site where they assessed the impact on privacy of the nearby dwellings. The development was more than 20 metres from her and Mr P’s properties. The Council, having considered impact on privacy having regard to the circumstances of the case was entitled to decide it was acceptable.
56. The document also contains no reference to the impact on Miss C’s horses. However, this was not a material consideration given that there was no public interest. This was a purely private matter affecting Miss Cs property (and livestock) only rather than the interests of the public in general. Therefore, there is no significant fault, if any, in failing to mention the matter.

Mr N’s actions after the grant of permission

57. Miss C says that Mr C has both before and after the grant of permission:
1. damaged a hedgerow.
2. failed to conserve or enhance the natural beauty and special qualities of the area, as required by policy.
3. Kept too many horses on the site.
4. Moved paths and manure heaps.
5. Installed lights.
58. Whatever Mr N did before the grant of permission, the Council was duty bound to consider the application on its merits. Whatever Mr N has done since the grant of permission can have had no bearing on the Council’s decision to grant or refuse permission. The decision was made on its merits as the planning officer saw it.

The Council’s failure to take enforcement action

59. Councils do not have to take enforcement action. They must, however, consider taking enforcement action. Miss C says the Council did not respond to her original complaints about Mr N’s horses being blanketed and fed in the field for a month. I do not intend to find fault for this reason. It must be remembered that this was during the COVID pandemic when council operations were facing significant difficulties and delays.
60. I have seen evidence that the Council did consider her allegations. It did, in fact, take enforcement action on several occasions and Mr N moved a path and stopped feeding horses in the field which, the Council accepts was not an agricultural land use.
61. Miss C feels that the Council’s enforcement efforts have been inadequate. I cannot find fault on that basis. She disagrees with the Council’s tree officer who thinks Mr N has managed the site ‘sympathetically’ and believes more should be done to protect wildlife. She also says that an ecologist from the local county council told her there should have been a survey.
62. The Ombudsman is not in a position to judge whether any measures taken are adequate nor to weigh the competing views of professionals. And we cannot find fault because a complainant disagrees with a Council’s decisions or actions.
63. It is clear that the Council’s tree officer believes that there has been no significant problem with the management of the land. There is also no reason why Mr N should not cut down a tree on his own land if it is not protected by a TPO.
64. It is still possible for Miss C to complain about breaches of planning conditions but, to date, the Council has considered Miss C’s allegations and, when it thought it appropriate, taken enforcement action. I do not find fault.

Other matters

65. Miss C also says that a Council officer involved in enforcement is a relative of Mr N and is therefore biased when making decisions not to enforce.
66. In its response to my enquiries, the Council said that the officer, ‘has no part in any decision-making process so this would not preclude her from on working on applications of people she knows due to the role she undertakes’.
67. The fact that councils have responsibility for often quite small administrative areas means that, inevitably, sometimes, officers will have relatives involved in disputes or business. In this case, there is no reason to think that the family connection identified by Miss C had, or had the potential to have, any impact on the Council’s actions. I do not, therefore, find fault.

Summary

68. The case officer's report considered the application against relevant local and national planning policies. It set out the consultees' responses and summarised the objections that had been received. It considered the impact on the amenity of existing properties. The report then assessed these matters and concluded that, on balance, it should be granted. There were no planning reasons to justify refusing the application. The Council was not at fault.
69. The Council considered Miss C’s requests for enforcement. It carried out some enforcement measures when it found it expedient to do so. I have not found fault.

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Final decision

70. I have found the Council was not at fault. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman