Summary: Mrs F has made complaint about the Council’s approach to planning and the development of land in her local area. In general terms, she complains about flawed decisions by the Council relating to policy, planning conditions and enforcement action. Mrs F alleges the primary injustice to her is harm to the natural wildlife in her local area. She also explains the Council’s decisions have failed to mitigate harm to the character of the area she lives in. We found the majority of issues raised by Mrs F are late and that the Ombudsman has no legal jurisdiction to investigate them. Moreover, we have no means to assess the primary injustice alleged by Mrs F. We also do not consider it is likely that there has been any fault by the Council with respect to its consideration of taking enforcement action. For these reasons, we have discontinued our investigation.

The complaint

1. The complainant, who I refer to as Mrs F, is making a complaint about the Council’s determination of various planning applications since the year 2014. In summary, Mrs F, along with her husband, are the owners of an operating livestock farm (“the Farm”) located within the Council’s area. Mrs F says that, through a number of procedural oversights and failings, the Council has permitted a number of developments to land which adjoin the Farm on a number of land boundaries. In general terms, Mrs F alleges the following:
1. The Council has failed to lawfully notify her about submitted planning applications for the development of adjoining land.
2. The Council has adopted inconsistent and contradictory approaches between planning applications from 2014 to 2021. It is further alleged there have been procedural flaws during the Council’s determination of the applications.
3. The Council has failed to properly consider the impact development will have on wildlife and designated conservation areas. It is further alleged the Council has failed to implement safeguarding practices in this area.
4. The Council has failed to take appropriate enforcement action against various breaches of planning conditions.
5. The Council failed to impose appropriate planning conditions to permissions.
6. The Council is failing to monitor a growing commercial development near the Farm which has not received planning permission.
2. In summary, Mrs F says her complaint is not about any individual planning application, but rather the inconsistent, and at times unlawful, approach to planning practices by the Council since 2014. Mrs F explains the accumulation of these errors have caused, and will have the potential to cause, damage to habitat and wildlife species in the area. She adds that the Council has failed to exercise due diligence in order to mitigate harm to the character of the area. As a desired outcome, Mrs F primarily wants the Council to take enforcement action against breaches of planning law and to learn from its errors to prevent further harm.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints, unless we decide there are good reasons to exercise discretion in this respect. 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).
5. We investigate 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 continue an investigation if we decide any fault has not caused an injustice to the person who complained, or any injustice is not significant enough to justify our involvement. We will also not start or continue an investigation if this would not lead to a different outcome which has been proposed and/or implemented by a council. (Local Government Act 1974, section 24A(6), as amended)
6. 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).
7. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended).

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How I considered this complaint

8. I have read Mrs F’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. I now invite both Mrs F and the Council to comment on my preliminary view of the complaint. All comments received will be fully considered before a final decision is made in this case.

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My findings

Background and legislative framework

Application for development

9. Section 55 of the Town and Country Planning Act 1990 provides that planning permission is needed if the work being carried out meets the statutory definition of ‘development’. ‘Development’ includes building operations (e.g. structural alterations, construction, rebuilding, most demolition).
10. An application for planning permission for development is made to the local planning authority (LPA). This will normally be the district council or London Borough. Planning application procedure is set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015 (the Order), SI 2015/595, (in England) (the 2015 DMPO). The LPA must provide a determination on the matter following a consultation.
11. The Planning Inspector acts for the responsible Government minister. The Planning Inspector considers appeals about:
1. delay by an authority in deciding an application for planning permission;
2. decision to refuse planning permission;
3. conditions placed on planning permission and;
4. a planning enforcement notice.

Publicity for applications for planning permission

12. Local planning authorities are required to undertake a formal period of public consultation, prior to deciding a planning application. The Town and Country Planning (Development Management Procedure) (England) Order 2015 (the Order) states that at Article 15 the following:

“An application for planning permission must be publicised by the local planning authority to which the application is made in the manner prescribed by this article....

1. “by site display in at least one place on or near the land to which the application relates for not less than 21 days; or

b) “by serving the notice on any adjoining owner or occupier; and

c)” by publication of the notice in a newspaper circulating in the locality in which the land to which the application relates is situated.”

National and local planning policy

13. The National Planning Policy Framework (the Framework) sets out the Government’s planning policies and how these should be applied. It provides a framework within which locally prepared plans for housing and other development can be produced. Planning law requires that applications for planning permission be determined in accordance with the development plan, unless material considerations indicate otherwise. The Framework must be taken into account in preparing the development plan, and is a material consideration in planning decisions. Planning policies and decisions must also reflect relevant international obligations and statutory duties.

Planning enforcement

14. 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 s.171A of the Town and Country Planning Act 1990:
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.
15. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under s.172 of the Act. It is for the planning authority to decide whether it is expedient to take formal enforcement action. Moreover, an Enforcement Notice creates a right of appeal to the Planning Inspectorate.
16. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under s187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrate’s court.
17. 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate.’’

What happened

18. Mrs F and her husband have owned the Farm since 1995 and are lifelong residents in the local area. Mrs F has referenced 16 planning applications determined by the Council between 2014 and 2019 which she says demonstrates a flawed approaching to assessing planning matters. The specific issues raised by Mrs F are contained within the complaint summary (see Paragraph 1).
19. In 2021, the Council determined a further planning application which is between 450 and 500 meters from Mrs F’s Farm. Mrs F has expressed concern relating to how the application was determined by the Council, as well matters of breach of planning permission and enforcement action.
20. In February 2021, Mrs F submitted a detailed complaint to the Council about her held concerns. The Council provided two detailed responses to Mrs F through its formal complaints policy and procedure. Dissatisfied with the responses, Mrs F brought her complaint to the Ombudsman in January 2022.
21. In April 2021, the Council decided to open a number of enforcement action cases relating to the concerns raised by Mrs F. It has since confirmed it will not take enforcement action relating to some of the developments of land referenced by Mrs F following a review of the circumstances. In one instance, the Council has confirmed it is minded to serve a Planning Contravention Notice. Some concerns raised by Mrs F are still under investigation.

My assessment

Time limitations

22. It is not the role of the Ombudsman to investigate historical issues. By law, I cannot investigate any complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion in this respect. The problems in Mrs F case predate to the year 2014. She first complained to the Ombudsman in January 2022. Before doing so however, she reasonably sought to resolve the issues through the Council’s formal complaints policy and procedure, beginning February 2021. In my view, it would be unreasonable to include the time Mrs F took to complain to the Council when assessing time limitations. Disregarding this period, I consider any complaint with respect to how a planning application was procedurally determined prior to the year 2020 is, on the face of it, a late complaint.
23. In articulating her complaint, Mrs F uses examples of 17 planning applications between 2014 and 2021 to demonstrate a flawed approach to planning by the Council. She also says inappropriate and unsatisfactory planning conditions were attached to some permissions given by the Council. I recognise Mrs F says her complaint is not about any one application, but the general approach to planning policy adopted by the Council over the years. However, it is clear to me that in order to examine this alleged approach, I must investigate the individual planning applications referenced by Mrs F. I cannot form a view otherwise. Save for one, all planning applications were determined by the Council prior to 2020. Of the 17 planning applications referenced, I consider 16 of these are late complaints.
24. I must therefore consider whether there are good reasons to exercise my discretion and investigate how the Council determined these planning applications. I will turn to this consideration later once I have considered all other relevant matters, particularly in relation to assessing Mrs F’s alleged injustice.
25. Moreover, Mrs F has made the point that she was not lawfully notified of the planning applications by the Council. Specifically, she says neighbours should not be obliged to “hunt down planning application notices on a weekly basis, or be obliged to purchase a weekly local newspaper” to understand whether an application has been made. Mrs F therefore disputes she was not aware of the problem during the determination process undertaken by the Council.
26. I appreciate Mrs F’s frustrations, but the evidence suggests the Council has complied with its legal obligations regarding the publicity of planning applications. In accordance with the provisions of the Order, it is sufficient for the Council to erect a site in at least one place on or near the land to which the application relates. In all applications referenced by Mrs F, the Council has erected a site notice providing publicity of the planning application. I have not found any evidence of fault in this respect. Therefore, I consider Mrs F was deemed notified of the problem when the Council determined the planning applications and issued a decision notice. I maintain my position as set out at Paragraph 23 (above).

Alleged injustice

27. I have also carefully considered the matter of the injustice Mrs F alleges to have suffered. This mainly relates to damage to the natural wildlife in the Farm’s area which Mrs F says has been caused by improper development. The Ombudsman is only required to accept complaints where the alleged fault has caused a significant and personal injustice to the complainant. This means the planning events articulated by Mrs F must be shown to directly cause her serious loss, harm or distress. On the subject of harm to the natural wildlife, I do not believe there is a practical prospect that I would be able to investigate the allegations.
28. To assess whether the natural wildlife has been harmed, I would firstly need to understand the composition of species in the Farm’s area prior to any development of land (the year 2014 and earlier). I have no means of making this judgment given the passage of time. I am not aware from Mrs F’s detailed complaint that there exists any evidence which would allow for this assessment to be made. Further, I have no tools to evidentially assess the changing situation as regards to natural wildlife during the period from 2014 to present date. For those reasons, I cannot make a comparative assessment of the ecology conditions before development and those at present.
29. Separately, I must be satisfied that any fault by the Council has directly caused a significant and personal injustice. In my view, there does not exist any evidence to suggest the development of land in Mrs F’s area has directly caused damage to natural wildlife. As I said, I cannot make that judgement, but there are other plausible reasons why this may have happened. I would also note that Mrs F’s alleged injustice is somewhat speculative in that she explains the Council’s planning decisions will risk harm to natural wildlife in the future. It is not the role of Ombudsman to remedy speculative injustice. There are no means of assessing loss, harm or distress for something which has not already happened.
30. I will now turn to the issues of Mrs F’s point that a flawed approach to planning by the Council has caused harm to the character of the Farm’s area. She also says the value of her property has significantly decreased as a result. There is only one planning application determined post the year 2020 which my jurisdiction allows me to investigate. As mentioned, Mrs F’s concerns focus on the development of land on three adjoining land boundaries. Each of these adjoining areas of land are separate farms. I have reviewed the photographs provided by Mrs F and conducted a desktop search of the area she lives in. There is considerable distance between Mrs F’s Farm and the adjoining areas of land which have been subject to development. This is particularly the case with the planning application which was determined by the Council post year 2020.
31. Assessing injustice in planning cases usually focuses on any impact to residential amenity. I accept Mrs F is unhappy with the developments which have received planning permission. I note she is also dissatisfied with the Council’s approach to enforcing breaches of planning control. However, I do not consider any impact to Mrs F’s residential amenity resulting from the one planning application determined in 2021 has passed the threshold of causing her serious loss, harm or distress.

Enforcement action

32. Separately, Mrs F has raised a number of concerns relating to the Council’s approach to planning enforcement where there has been, or alleged to have been, a breach of planning permission. The issue of enforcement action is distinct from how a planning application was determined. This is because a Council’s alleged failure to consider taking enforcement action constitutes continuing fault, whereas the issue of determination is fixed in time at the point it issued a decision notice. Therefore, where the Council has not considered taking enforcement action, I would not be constrained from investigating due to the complaint not being raised within 12 months of becoming aware of the problem.
33. Planning authorities may take enforcement action where there has been a breach of planning control. Any action by the Council is entirely discretionary where it is expedient to do so. The central concern raised by Mrs F relates to a lack of monitoring of the local area by the Council. Further, she is unhappy with the way that when deviations to planning permission have been identified, the Council has retrospectively approved the breach, therefore regularising the development. However, this approach is consistent with the Government's planning policies set out in the National Planning Policy Framework. Further, in the majority of instances, the planning applications regulating the identified breaches were determined prior to 2020 and I have commented already that I do not have the legal authority to investigate these for reasons of time limitations.
34. As to the more recent concerns identified by Mrs F (which were not dealt with by retrospective planning consent), it is my view that the Council has considered her concerns relating to these issues. In some circumstances, the Council is continuing to monitor the issues she has raised. In other instances, the Council has made an informed decision that it would not be expedient to take formal enforcement action. I am unlikely therefore to find fault in these circumstances. This is because the Council has considered the issue and opened enforcement cases to reach an informed view. I cannot by law question the merits of the Council’s decision-making if it has properly considered the issue.

Reasons to discontinue investigation

35. I have considered the issues of time, the alleged injustices to Mrs F and what outcome could be achieved through an Ombudsman inquiry. I consider the following:
1. Given the passage of time, there would be difficulties in establishing the material facts with reasonable confidence and gathering sufficient evidence to reach a sound judgement, particularly relating to any alleged injustice.
2. We cannot apply current standards, guidance, or professional expectations to historical situations. It is therefore likely to be more difficult to reach a firm and fair conclusion on whether there was maladministration in Mrs F’s case.
3. It is likely to be more difficult to achieve a meaningful remedy in Mrs F’s case, given the length of time that has already passed, the difficulty in establishing causality over longer time periods, and changes in the situation of the parties.
4. It would have been reasonable for Mrs F to have raised issues with how the Council considered the planning applications when it determined these.
5. I am unlikely to find fault by the Council relating enforcement action because it has made an informed decision about whether it would be expedient to do so.
36. For these reasons, I do not consider that there is a realistic prospect of reaching a sound, fair, and meaningful decision in Mrs F’s case. Further, the above factors support the view there are no good reasons that I exercise my discretion and investigate the complaints I consider are late. I also do not consider that I am likely to find fault by the Council in relation to its decisions about whether to take formal enforcement action.

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Final decision

37. I have decided to discontinue my investigation into Mrs F’s complaint. I take the view that Mrs F is raising issues on subject matters she cares deeply about and this is reflected by her detailed, articulate and well considered complaint submissions. However, the vast majority of the issues raised by Mrs F are out of time. Moreover, I cannot assess the primary injustice Mrs F claims to have suffered relating to wildlife. Any alleged impact to residential amenity does not meet the threshold for a formal investigation. As to enforcement action, the Council has made informed decisions whether it would be expedient to do so in the circumstances. I therefore do not have the legal authority to question the merits of the Council’s decision-making in this respect.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman