Summary: Ms B complained about the way in which the Council had dealt with concerns she raised about development in and adjacent to protected areas in her local area. We found the Council failed to identify that the site was in a protected area and gave incorrect advice to the landowner which led to them carrying out further development, misunderstood the permitted development rules and failed to consult with Natural England. The Council has agreed to apologise to Ms B and pay £300 to a charity of her and to improve its procedures for the future.

The complaint

1. Ms B complained that Isle of Wight Council (the Council) in respect of development at a site in her local area:
• failed to take into account, when determining a retrospective application, that the site lay within an Area of Natural Beauty (AONB), a Special Area of Conservation (SAC) and a Site of Special Scientific Interest (SSSI).
• failed to notice the existence of new development when determining that application and then said the development had planning permission.
• mistakenly said the new development was permitted development.
• delayed in starting an enforcement investigation, initially disputing that the site was in an AONB.
• failed to consult with Natural England when approving various tree works applications on the site.
• in carrying out the enforcement investigation failed to correctly assess which parts of the development were permitted development, failed to liaise with Natural England or take account of the advice it provided, failed to provide evidence that the conditions on the previous planning permission had been implemented and failed to take account of evidence provided by Ms B suggesting that a business was being run from the site.
• has not yet determined the second retrospective application.
2. Ms B enjoys walking in the area, as do many other people, and is concerned at the damage being done to this protected area with no apparent consequences. She has also been caused significant time and trouble in pursuing the complaint due to a lack of information and transparency by the Council.

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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’. 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)
4. 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

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms B 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

Area of Outstanding Natural Beauty (ANOB)

6. An ANOB is land protected by law to conserve and enhance its natural beauty. Councils have must make sure that all decisions have regard for the purpose of conserving and enhancing the natural beauty of the AONB. Councils can consult Natural England where development may have a significant impact.

Site of Special Scientific Interest (SSSI)

7. An SSSI is an area protected by law due to particular features, such as containing rare species of fauna or flora or important geological or physiological features. Councils must take reasonable steps to conserve and enhance these areas when considering planning applications for work within or near to them. People carrying out work in SSSIs must inform Natural England.

Special Area of Conservation (SAC)

8. An SAC is land protected by law to conserve species and habitats of particular importance. Councils when considering plans and projects which are not directly connected with or necessary for the conservation management of an SAC, should carry out an Appropriate Assessment to assess if the plans are likely to have a significant effect on the site.
9. A Habitats Regulation Assessment is a type of appropriate assessment which a Council should do where development will potentially impact on an SAC.
10. Where an adverse effect on the site’s integrity cannot be ruled out, and where there are no alternative solutions, the plan or project can only proceed if there are imperative reasons of over-riding public interest and if the necessary compensatory measures can be secured. Natural England must be consulted on any assessment a council decides to make.

Permitted development

11. Permitted development rights are a national grant of planning permission which allow certain development to be carried out without making a planning application to the council. In some protected areas such as AONBs permitted development rights can be removed.

Statutory duty to give reasons for decisions

12. Regulation 7 of The Openness of Local Government Bodies Regulations 2014 requires a council officer to produce a written record of their decision and reasons when deciding on the grant of planning permission.

Enforcement

13. 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)

14. The Council’s enforcement policy states there are four key points which govern enforcement processes:
• A breach of planning control is not a criminal offence (other than in a few limited circumstances) and therefore immediate action is not usually an option.
• Enforcement action can only be taken where it is expedient to do so, which means that we cannot take action against a development which we would have granted planning permission had it been applied for in the normal way.
• Government advice urges negotiation to try to resolve enforcement issues, other than in the most serious cases before formal action is taken. This has implications for the length of time the process can take.
• It is open for people to apply for planning permission retrospectively in an attempt to regularise unauthorised development.
15. It has three priority bands for enforcement cases:
• priority one includes cases where there is a significant ongoing threat to public safety or significant irreversible damage to areas of acknowledged importance. An example of this is significant works within nationally important sites including AONB and SSSI.
• priority two covers cases which impact on residential amenity, the economic or tourism function of the area or those which harm the landscape of the countryside or designated area. It provides an example of works which are not significant but cause harm to the appearance of a conservation area or AONB .
• priority three includes cases which do not cause material harm, are unlikely to need planning permission or are likely to be granted planning permission.
16. The policy says it aims to inspect priority one cases within 5 working days and priority two within 20 working days.

The Council’s AONB management plan

17. The impact of individual proposals and their cumulative effect on the Isle of Wight AONB and its setting will be carefully assessed. Planning permission will be granted where it can be demonstrated that all the following criteria have been met:
• The natural beauty and locally distinctive features of the Isle of Wight AONB are conserved and enhanced;
• Proposals reinforce and respond to, rather than detract from, the distinctive character and special qualities of the Isle of Wight AONB;
• Either individually or cumulatively, development does not undermine the integrity or predominantly open and undeveloped, rural character of the Isle of Wight AONB and its setting;
• Is appropriate to the economic, social and environmental well-being of the area or is desirable for the understanding and enjoyment of the area (where this is consistent with the primary purpose of conserving and enhancing natural beauty); and
• Either individually or cumulatively, development does not undermine the policy aims of the Isle of Wight AONB Management Plan.

What happened

18. Ms B when out in her local area, regularly walks in, an area designated as an AONB, a SAC and SSSI. Within this area, is a property.

First retrospective application

19. In 2018 a member of the public complained to the Council about development near to the property and a possible change of the land to business use. An officer visited the site. In November 2018 the Council wrote to the landowner to say that the development was permitted development and there appeared to be no business use on the land. However, the Council was concerned about other works on the site which required planning permission. It requested a retrospective planning application.
20. Shortly afterwards the landowner submitted a planning application. The Council consulted its AONB partnership. It responded saying it had no comment to make due to the minor nature and/or impact of the work.
21. After consultation with Natural England, who expressed concerns about possible loss of habitats for protected species, the Council requested further information from the applicant. It then approved the application with some conditions for mitigation work. One of the approved drawings showed the development constructed in 2018.
22. The Council also approved a number of applications for works to trees during 2019 and 2020.
23. After the application was granted permission, an enforcement officer visited the site again to discuss further prospective development. I have not seen any records or direct evidence of this visit, but it is referred to in later correspondence. It appears the officer said any further development would be permitted development, up to the limits in the regulations.
24. The landowner carried out further building work.

Enforcement complaint

25. On 15 July 2020 Ms B complained to the Council about development on the site and the impact on the protected areas.
26. Ms B contacted the Council on 3 August 2020 to ask it to take more urgent action giving the ongoing development. She also provided details to support her view that the development was unlawful.
27. Ms B has provided emails showing that on 3 August 2020 the enforcement officer still believed the site lay outside the AONB and was checking with the AONB service and the tree officer. They also said, incorrectly, that the previous planning application had been decided on the basis that the site was not in the AONB.
28. The Council opened an enforcement investigation on 4 August 2020 and sent an acknowledgement to Ms B on 7 August 2020. It also contacted the owner to raise the concerns about the unauthorised development. In the email the officer said she had not been aware previously that the site was in an AONB. Ms B says that in the time it took the Council to decide to investigate the landowner had completed a building and carried out further development.
29. Natural England sent an email to the Council asking if one of its officers could attend a visit with the enforcement officers to ascertain whether or not the works were causing harm to the SSSI/SAC. It said it hoped it could seek a remedy to the situation through the planning process as the works appeared to be connected to the previous development carried out in 2018. It also said it would later have to consider whether or not there had been a direct loss of the SAC, and other issues relating to trees and protected species. I have not seen evidence that the Council replied to Natural England.
30. The enforcement officer visited the site in August 2020. They concluded that the development, which had been in situ at the time the first planning permission was granted, was permitted development and had been granted planning permission by default as it was on the approved plans. They considered the more recent construction was not permitted development. The Council’s tree officer had also visited the site and they were satisfied that the works carried out were in accordance with the permissions given. The Council asked the landowner to stop work on the development and submit a retrospective planning application.
31. The Council noted that the landowner had showed the enforcement officer an email from the officer who had visited earlier in the year and said that further development would be permitted development. The Council apologised for the officer’s failure to consider the AONB designation.
32. Ms B contacted the Council on 28 August 2020 to query the conclusion that the first development was permitted development. She also challenged the Council’s view that it had planning permission by default and alleged that the owner was using the site for commercial purposes.
33. Ms B sent further correspondence in September 2020 raising concerns that most of the unauthorised work was within the SSSI and therefore a lot of protected land had been cleared or disturbed. She also said that the Council had a duty to consult with Natural England when it was permitting an operation within an SSSI, and this included tree-felling. She said neither the owner nor the Council had consulted Natural England when allowing trees to be felled. She questioned why the Council had decided to request a retrospective planning application so quickly without considering any other options.
34. The Council responded to the complaints on 24 September 2020. It accepted that the Council did not identify that the site was within the AONB when the first planning permission was granted and so had advised the owner that the initial development was permitted. It agreed this was fault and had apologised for the error. But it maintained its view that because the development had been included on the approved plans the Council has in effect granted planning permission for it. The Council confirmed that the later development required planning permission and that some of the conditions attached to the first planning permission had been implemented.
35. The Council said development did not amount to a change of use and once the planning application had been submitted it could be determined in accordance with national planning policy and the Council’s own AONB management plan. An enforcement officer had visited the site on three occasions and not seen any evidence of commercial activity on the land.
36. In respect of the permissions for tree work it explained that the Council did not have a duty to consider the impact of the work on the ecological sensitivities of the area and such a reason for refusal would not stand up to scrutiny at a planning appeal. It also said that when owners wished to carry out work to protected trees or trees in protected areas, they have to also obtain permission and a license from Natural England to do so and the Council informed applicants of this duty in decision notices. In respect of the consent to fell specific trees, the Council explained the reasons for granting permission and the reasons for requiring trees to be replanted, along with the expectations that this would be done during the next planting season (October 2020 to March 2021).
37. Ms B escalated her complaint on the grounds that the Council had:
• breached its legal duties under sections 28G and 28H of the Wildlife and Countryside Act. Specifically, it had failed to avoid damage to an SSSI and failed to consult Natural England before granting permission for work within or near an SSSI, including felling protected trees and allowing development;
• breached its legal duties in respect of preservation of a SAC.
• ignored the provisions of its own AONB management plan.
• failed to consult or liaise with Natural England throughout the process and ignored the contact Natural England made in August 2020.
• failed properly consider whether the initial development was permitted and the enforcement officer had misunderstood the permitted development regulations.
• failed to take formal action to stop the work and as a result further damage to the SSSI/SAC and AONB had occurred.
38. The Council responded in October 2020. It accepted it had made an error in failing to recognise the site fell within the AONB. It said it was a matter of conjecture whether different processes would have led to a different outcome. A retrospective application had been requested. It upheld the stage one response and referred Ms B to the Ombudsman.

Second retrospective application

39. The owner submitted a second retrospective planning application seeking to regularise the unauthorised development. As part of the consultation process, Natural England objected to the application due to the impact on the protected land. It said it was currently investigating wider works around the site and requested further information before it could reconsider the proposals.
40. The applicant submitted an ecological impact assessment which they had submitted for the previous application.
41. The Council notified the applicant that the drawings were wrong and requested corrections. It also asked for justification for the development and for evidence that it had not adversely affected the protected areas.
42. The applicant submitted further site plans but nothing else. Many local people and organisations including the National Trust, the Council for the Protection of Rural England and the Badger Trust have also objected to the application. The tree officer was unable to say what the impact on the protected trees had been due to the structures without more information.
43. In response to my enquiries the Council said it is in the process of establishing how much of the mitigation works conditioned on the first application have been carried out. It had also taken steps to compel the landowner to provide information about the site it issued a planning contravention notice to the landowner to gain information. It had received a response which it was considering.
44. In response to my further enquiries the Council has clarified that the initial development was not permitted development and its view that had proper consideration been given to it in January 2020 it is likely the Council would have granted permission.
45. Ms B has provided information to show that the initial development partially sits within the SSSI/SAC.
46. Natural England have submitted further comments on the ongoing retrospective application. It said that the application does not contain sufficient information to determine if the proposal could have potential significant effects on the SAC and a Habitats Regulations Assessment should be produced. It did not consider that the proposal was directly connected with or necessary for the management of the European site and so any direct loss of designated site should be considered a likely significant effect. It said an Appropriate Assessment should be done to test the likely impacts on the integrity of the site.
47. It also said it would have requested a Habitats Regulations Assessment if it had been consulted on planning permission for the development granted permission by default.

Analysis

Failure to properly consider development in 2018

48. The Council was at fault in November 2018 when it concluded that the development already constructed was permitted development, without taking into account that the site was entirely within an AONB and partially within the SSSI/SAC. There is no evidence to say why it considered it was permitted development as it does not appear to meet the necessary criteria. It should also have considered the impact of the development on the SSSI/SAC. The failure to do so was fault.
49. The second error was the Council’s failure to notice that the initial development had been included in the approved drawings of the retrospective planning application. This was a further opportunity to properly consider the impact on the protected land, but the Council did not do so. This was fault.
50. It then concluded that due to the error, that development had been granted planning permission by default. The Council has provided evidence of a court case to justify its view that the development has planning permission. But given that the quoted case has been successfully challenged, this is evidently not a clear area of law. It is not for me to say whether or not the development has planning permission, but I have concluded that the fault by the Council has created unacceptable uncertainty about potential damage to the SSSI/SAC.
51. The effect of not including this development, when considering the first retrospective application, meant that both the AONB partnership and Natural England were denied the opportunity to comment on it. Natural England has unequivocally stated that if it had been consulted, it would have advised that a Habitats Regulations Assessment was necessary.
52. I cannot say what the outcome would have been if such an assessment had been done, but at the very least it may have stopped the landowner from proceeding with further development.

Failure to properly consider further development

53. Instead, the landowner started further development within the AONB and adjacent to the SSSI/SAC. The Council compounded the existing fault by appearing to advise the landowner that this was permitted development and they could build more. So, the landowner continued with more development completely within the SSSI/SAC. Aside from failing to carry out basic checks on the status of the site before giving that advice, the Council also failed to check the planning history. If it had, it would have noted that Natural England had highlighted the proximity of the protected areas in its comments on the retrospective application. This was further fault.

Starting the enforcement investigation

54. Once Ms B had complained about the unauthorised development in July 2020 the further development was not complete. The Council took less than a month (and acted within the timescale in its enforcement policy) to decide to open an enforcement investigation. I realise Ms B considered this was too long in the context of the history of the site, but I have not concluded the Council delayed.

Fault in the enforcement investigation

55. The Council correctly identified that the site was in an area of AONB and that the further development required planning permission. But it repeated its questionable view that the initial development was permitted development. It also concluded that further works on the site and within the ANOB were permitted development. There is no evidence the Council considered the impact on the ANOB. This was fault.
56. It also failed to respond to Natural England’s request to join the visit and consider the impact of all the development on the site. There was no statutory requirement to do so but I consider it would have been a positive action to have accepted the offer. It would have provided a more joined-up approach to the site at an earlier stage, which appears to have been lacking throughout these events.

Tree works

57. The Council considers the tree works have been correctly considered and the works were all of a minor nature and necessary for good woodland management. That may be the case, but it has failed to show it took into account that the tree works were either within the SSSI/SAC or adjacent to them and whether the impacts individually and/or cumulatively were significant. It says it does not consider the tree works were likely to cause damage to the SSSI but agrees it did not explain this in the decisions in accordance with its statutory duty. This was fault creating uncertainty as to whether the tree works should have taken place.

Injustice

58. The failure to carry out proper assessments of the development both adjacent to, and wholly within nationally and internationally protected sites is significant fault. This fault is compounded by the repeated errors and wrong advice given to the landowner which have contributed to more development than might have otherwise occurred. If we cannot rely on the Council as the local planning authority to be aware of the position and importance of protected land then it is a matter of serious concern, not only to individuals such as Ms B but also to the wider public, to ensure that it remains undisturbed.
59. Ms B has also had to go to significant time and trouble to pursue these issues with the Council over more than twelve months
60. I understand there is scope to address some of these issues with the ongoing retrospective application. But that is a matter for the Council to decide.

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Agreed action

61. In recognition of the injustice caused to Ms B and the wider concerns regarding proper consideration of planning applications within protected areas, I recommended that the Council:
• (within one month of the date of my final decision) apologises to Ms B and pays £300 to a charity of her choice.
• (within three months of the date of my final decision):
1. reviews current procedures to ensure the Council complies with the requirements of regulation 7 of the Openness of Local Government Bodies Regulations 2014 when officers grant permission under delegated powers.
2. arranges training for relevant officers regarding the need to consider the impact of development on SSSI, SAC and AONB where appropriate and the impact these areas have on permitted development.
62. The Council has agreed to my recommendations.

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Final decision

63. I consider this is a proportionate way of putting right the injustice caused to Ms B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman