Summary: Mr X says the Council gave incorrect information on permitted development rights to the operator of a quarry with the result that the quarry installed replacement concrete plant without planning permission. There was fault by the Council which caused injustice to Mr X. The complaint was closed because the Council took action to remedy the injustice.

The complaint

1. I refer to the complainant as Mr X. Mr X says the Council gave incorrect information on permitted development rights to the operator of a quarry with the result that the quarry installed a replacement concrete plant without planning permission.
2. Mr X says there is significant noise from the site preventing his legal use and enjoyment of his home. Mr X wants the Council to instruct the quarry operator to return the site to its original size and position.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for a council review or appeal.

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

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 considered the complaint and background papers provided by Mr X and the Council. I discussed the complaint with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and invited their comments on it.

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What I found

Planning enforcement

6. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
7. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 (the Act) as:

• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.

8. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action.
9. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2019) and in, more detail, in its online guidance, ‘Ensuring effective enforcement’

“Effective enforcement is important to maintain 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.’’

10. In deciding whether it is expedient to initiate enforcement action, the local planning authority will wish to take account of a number of different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between the protection of amenity and permitting development which is acceptable.
11. The local planning authority has a choice of different enforcement options for a breach of planning control. Not all cases will, therefore, be dealt with in the same way. The options range from taking no formal action to service of an enforcement notice. The options include asking the developer to submit a retrospective application to regularise development which has already been undertaken. The application should be considered in the normal way.

Complaint background

12. The operator of a quarry sought advice from the Council on whether the installation of a new concrete plant to replace an existing plant could be done under permitted development rules that is to say whether the work would not require planning permission.
13. The Council erroneously believed the replacement plant could be installed under permitted development rules and so conveyed this advice to the operator.
14. Mr X complained about the application of the permitted development rules to the Council. The Council initially insisted the work was compliant with permitted development rules. However, following a further complaint from Mr X, the Council accepted its reason for finding the work was within permitted rules was wrong. It concluded the height of the plant exceeded the maximum height for permitted development.
15. It asked the quarry operator to submit a retrospective planning application. The operator did not submit an application.
16. Mr X continued to complain to the Council. In its final complaint response, the Council advised Mr X that permitted development rights did not apply in the case at all because the concrete plant is within the planning permission area of the quarry.
17. The Council apologised to Mr X for its error in telling the quarry operator that the replacement plant could be installed under permitted development rights. It again asked the operator to submit a retrospective planning application.
18. The Council noted its investigations into noise levels at the quarry showed the quarry complied with its approved noise levels.

Finding

19. The fault in this matter has already been identified and accepted by the Council. And the remedy for the fault?
20. The Council already apologised to Mr X which was appropriate.
21. As to any action to be taken by the Council, Mr X wants the Council to instruct the operator to return the plant to its original position and size.
22. As can be seen from the guidance on planning enforcement above, enforcement action is discretionary and not mandatory. Before the Council considers whether it is expedient to take enforcement action, it gave the operator the opportunity to regularise the development by submitting a planning application. This is one of the statutory options available to the Council and so I cannot criticise it for inviting an application from the quarry operator.
23. If the operator does not submit an application within a reasonable period of time, the Council should then consider the expedience of taking enforcement action. It will consider the factors cited in government guidance in reaching its decision.
24. I find the Council followed the correct steps on planning enforcement at the point when it responded to Mr X’s complaint. The matter is continuing and it is now for the Council to conclude its consideration of the planning enforcement matter. Mr X can complain again to the Ombudsman if, for instance, there is unreasonable delay by the Council in dealing with the planning enforcement matter.

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Final decision

25. There was fault by the Council which caused Mr X an injustice. The Council took action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman