Summary: There was no fault by the Council in a complaint that alleged there was flawed and unjust treatment of planning applications by the Council and no effective enforcement against material planning breaches at the same property.

The complaint

1. I refer to the complainant here as Ms X. Ms X says there was flawed and unjust treatment of planning applications by the Council. She says:
• The Council’s decision was based on a red line that did not incorporate the track providing access to the public highway;
• The Council ignored certification requirements as the red line included land owned by her;
• There was a fundamentally flawed assessment of the application based on the incorrect;
• The Council twisted the Highway Engineer’s conclusions on safety issues;
• The Council misleadingly stated there was a lack of information on the applicant’s proposed uses.
• The Council again made validation errors with a second application.
• The Council repeated flawed assessments with a second application.
2. Ms X complains the Council did not take effective planning enforcement action. Ms X says:
• She and others provided photographs, videos and logs of unauthorised uses at the farm.
• The Council did not take any action for months.
• The Council should have served a Planning Contravention Notice and issued stop notices to the landowner.
• The Council did not write to the landowner at any point.
• Vehicles continue to drive to the property in connection with unauthorised uses.
• There was burning of toxic waste at the site.
• There has been dumping of industrial waste at the site.
3. Ms X wants compensation for the distress she suffered and the legal costs that she incurred challenging the Council.

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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. 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)
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 examined the complaint and background information provided by Ms X and the Council. I sent a draft decision statement to Ms X and the Council. I considered the comments of both parties on the statement. I considered further information provided by both parties.

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What I found

Planning enforcement guidance

7. 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 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. Councils have a choice of different enforcement options so as to secure a satisfactory remedy for a breach of control. Not all cases will, therefore, be dealt with in the same way. The options range from taking no formal action to issuance of an Enforcement Notice.

Background

Planning

11. The Council received a planning application for development at a neighbouring property in 2020. The application site has agricultural use and the proposal involved changing and refurbishing existing buildings for mixed use light industrial, storage and office uses.
12. The Council refused planning permission. I will not set out the Council’s reasons to ensure brevity but also so the application is not easily identified. Ms X contends there were flaws in the Council’s handling of the application. Ms X says the planning officer made up her mind to allow an extant planning application long before any due process was fulfilled. The planning officer then sought to restrain effective enforcement at the property.
13. The applicant submitted another planning application ion 2021. Ms X says the Council should not have validated the application. Ms X also says the environmental health officer who commented on the application did so in an irrational and self-serving way. The Council again refused planning permission.

Planning Enforcement

14. Ms X brought reported alleged breaches of planning control at the neighbouring property in early 2021. The Council conducted site visits. It later met with Ms X, the landowner; and a local councillor at the subject property. At the visit, the planning enforcement officer explained some of the activities Ms X complained about did not amount to breaches of planning control. The officer noted other activities which could be breaches of planning control but considered further action was not necessary because the landowner agreed to remedy them. These activities included uses of the site such as for storage of building materials; car repairs and tyre storage. The officer’s view was that vehicular traffic to the site in association with these uses would stop as the landowner had agreed to stop the unauthorised activities. The planning enforcement officer drafted an enforcement report which included a judgement on the alleged planning breaches and a recommendation that the Council close the enforcement complaint.
15. The report was approved by the team manager and the complaint was closed. The Council’s judgement was that the activities either did not result in a material change of use or were not at a level or degree that resulted in material harm to warrant the service of notices.
16. In its response to Ms X’s complaint, the Council explained that it would open an active monitoring file on the site so that its officers could still visit the site to assess activities there.
17. In January 2022, the Council issued another enforcement report following further visits to the site. It concluded there had not been a material change of use of the site.

Findings

Concerns about the Council’s handling of the planning applications

18. The Council refused planning permission for the applications. I do not therefore find there is good reason to now pursue Ms X’s concerns about its handling of the planning applications. Ms X did not suffer an injustice because of the Council’s decision.
19. Given the outcome of the planning applications, I do not find it is now proportionate for the Ombudsman to investigate Ms X’s grievances about the Council’s validation of the planning applications or its assessments of the merits of the applications.
20. Ms X points to legal costs and professional fees she incurred as an injustice. However, these costs were not incurred because of failings by the Council. Rather, Ms X incurred the costs of her volition. Members of the public are legally entitled to comment on planning applications but are not expected to seek legal or professional advice in order to comment on planning applications.

Concerns about planning enforcement

21. The Ombudsman expects councils to investigate complaints of breaches of planning control and consider the range of enforcement options available to them. Even if a council decides not to take enforcement action we would expect it to record its reasons for doing so and explain its decision to any complainants.
22. On the whole, I am satisfied the Council followed government guidance on effective enforcement action. It investigated the reports of breaches it received by visiting the site on several occasions. It met with both landowner and Ms X. It explained its decisions on the various matters raised by Ms X. I note it opened a second planning enforcement investigation and issued a second enforcement report.
23. As to the time taken by the Council over its planning enforcement investigations, the process of resolving a breach in planning regulations can take a long time. There is no set timescale in law or in government guidance for resolving breaches of planning control. Government guidance does suggest that local planning authorities act proportionately in dealing with planning enforcement breaches.
24. The question I have to address is whether the time taken by the Council was unreasonable. I am satisfied the time taken by the Council over its enforcement investigations was reasonable.
25. I note Ms X does not consider the enforcement process was rigorous enough or effective. However, it is not for the Ombudsman to substitute his judgement for that of the Council’s officers in the absence of fault in the process.

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Final decision

26. This complaint was closed because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman