Summary: Ms X complained about the Council’s decision to approve her neighbour’s planning application and its failure to take enforcement action about beaches of planning control on the site. We have not found fault with this part of the complaint. However, we did find fault with the Council’s complaint handling. The Council has agreed to remedy the distress and frustration experienced by Ms X by way of an apology and payment of £250.

The complaint

1. Ms X complains about the Council’s failure to properly consider a planning application for a traveller site near to her home. In particular, she complaints about:
1. an inaccurate and biased case officer report, upon which the decision was made;
2. the failure to respond to her correspondence that highlighted many inaccurate statements in the case officer report; and
3. the time taken to process the planning application.
2. Ms X also complains about the Council’s failure to take enforcement action in respect of unauthorised activity on the site, including residential use of a stable block and disposal of asbestos and sewage. She also says the Council failed to respond to her complaint about the conduct of the enforcement officer towards her.
3. Ms X says this has caused significant distress and frustration. She is no longer able to benefit from the peace and privacy of her home she previously enjoyed.

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What I have and have not investigated

4. Mrs X first reported a breach of planning control regarding unauthorised use of the stable block in August 2020. She says the Council failed to investigate this and this has had consequences on the most recent planning application. I will not investigate this part of the complaint because it is late. Paragraph nine (below) therefore applies. I will not exercise my discretion in this case because I can see no reason why Mrs X could not have complained to the Ombudsman sooner. I am also unlikely to find fault because the Council sought to regularise the breach by inviting a retrospective planning application.
5. I will not investigate the complaint about the time taken to process Mrs P’s application. While I acknowledge the application took far longer than the law expects, the Council has explained the reasons for this. As the application was ultimately successful and Ms X was not the applicant, I do not consider there was sufficient personal injustice to her to warrant investigation by the Ombudsman.

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The Ombudsman’s role and powers

6. 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)
7. We provide a free service, but must use public money carefully. We do not start or continue an investigation, or part of 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. (Local Government Act 1974, section 24A(6), as amended)

8. 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)
9. We cannot investigate late complaints unless we decide there are good reasons. 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)
10. If we are satisfied with an organisation’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

11. As part of my investigation I have:

• considered the complaint, documents and photographs provided by Ms X;
• made enquiries of the Council and considered its response;
• considered the relevant law and statutory guidance;
• viewed the video recording of the two Planning Committee meetings;
• spoken to Ms X; and
• sent my draft decision to both parties and invited comments on it. Any comments received were taken into account before I made my final decision.

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What I found

Planning applications

12. Most development needs planning permission from the local council. Councils must publicise planning applications so people may comment on development proposals.
13. Councils must consider each planning application received on its own merits. They must also make their planning decisions in line with relevant development plan policies unless material considerations indicate otherwise.
14. Planning considerations include things like:

• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.

15. Planning considerations do not include things like:

• views from a property;
• the impact of development on property value; and
• private rights and interests in land.

16. Peoples’ comments on planning and land use grounds will be material planning considerations.
17. Planning policies may pull in different directions, for example, promoting development and protecting existing residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in deciding an application.
18. A planning case officer will usually prepare a report drawing on the information received about the proposed development. The report will assess the development proposals against relevant planning policies and other material planning considerations. The assessment usually leads to a recommendation to grant or refuse planning permission. Normally, councils grant planning permission if they consider the proposed development is in line with planning policy and they find no planning reasons of sufficient weight to justify refusal.
19. The courts have said council reports assessing applications do not need to include every possible planning consideration but should address the principal controversial issues. And reports do not need to be perfect as their main intended audience are the applicant and the council, which parties are well versed in the issues. The courts have also said reports should not be subject to hypercritical scrutiny. And they do not merit challenge unless their overall effect is to significantly mislead the decision maker on key material issues.

Planning enforcement

20. 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.
21. Section 171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined 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.

22. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils/authorities should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils/authorities to resolve issues through negotiation and dialogue with developers.
23. Council’s often invite developers to submit retrospective planning applications so the impact of the development can be properly considered.
24. 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 2021, paragraph 59)

What happened

Contextual information

25. Below is a summary of the relevant facts pertinent to this complaint. It is not meant to be a full chronology. It is our role to determine if the Council has followed proper practice when making decisions about planning applications, alleged breaches and any enforcement action that may be considered necessary.
26. Ms X’s Grade II listed home is located in a rural and agricultural setting. It is in a designated area or outstanding natural beauty (AONB). For many years she has enjoyed this quite environment with scenic views. Several years ago, an adjacent field (the Field) was bought by Mrs P, who is a member of the travelling community. The Field only had planning permission for horse grazing and a stable block. Previous attempts to seek planning permission for residential use on the site were unsuccessful.
27. Ms X says Mrs P and her family had lived on the Field for two years without permission to do so, using the stable block and mobile caravans for living accommodation. She reported this to the Council in August 2020, but she says the Council failed to take any action. I have not investigated this part of the complaint because it is late (see paragraph four above) and refer to it for contextual reasons only.

The 2021 planning application

28. In 2021, Mrs P sought to regularise this breach by making a retrospective planning application to allow her to erect a mobile home, a day room and to park one touring caravan on the Field. This was to provide accommodation for Mrs P and her family. She had chosen to settle here to allow her children to attend the local school.
29. Mrs P’s planning application was considered by the Council’s Planning Committee (“the Committee”) in July 2022. The was adjourned because additional information was required, primarily about the children’s schooling arrangements, availability of other traveller sites in the area and ecology issues.
30. The Committee reconvened in November 2022. The planning officer (Officer J) recommended the application should be approved.
31. Ms X spoke at both meetings to voice her objection.
32. The Committee voted by a majority to approve the application, although it was decided to do so on a temporary basis.

Ms X’s complaint to the Council

33. Ms X complained first complained to the Council in September 2022.
34. She said Officer J’s report contained many errors and false statements:

• A failure to refer to Mrs P’s other addresses in the locality, one of which was a site that had planning permission to be used for travellers. The report stated Mrs P would be homeless were permission not to be granted. Ms X says this was not correct.
• The report stated there were no other available traveller sites in the locality. Ms X says this is untrue and had been recently confirmed by a Planning Inspector when adjudicating on another application. An alternative school was within a reasonable distance to an alternative site.
• There was no proper investigation into the children’s schooling arrangements. Ms X says she had evidence the family were settled elsewhere.
• There were incorrect assumptions about visual intrusion and screening. The report referenced other development on the site that implied the application would not make much difference. There was also reference to screening from trees, but failed to mention this only afforded seasonal relief and the trees were deciduous.
• The development would be far more visually intrusive when viewed from Ms X’s property and passing footbaths, contrary to what was said in the report.
• The number of objectors was incorrect (it was 69 and not 58 as stated).
• Statements about environmental and health concerns were incorrect. Ms X says there has been unauthorized activity including excessive noise from dogs, sewerage and drainage issues as well as the use of the stable block for residential purposes.
• A failure to properly consider the impact of vehicular use to and from the property.

35. The Council’s initial response confirmed it did not address the main issues Ms X had raised because the planning application had yet to be decided by the Committee. It did acknowledge the time taken to deal process the planning application that was caused by an incomplete application and staff shortages.
36. Ms X felt this was an inadequate response as it had failed to address any of the points I have summarised above. She asked for her complaint to be dealt with at stage two of the Council’s complaints procedure.
37. The Council responded in January 2023, four months later. It said the initial response “effectively covered the points you had raised”. Her complaint was partially upheld but stated the Council did not consider it was guilty of maladministration.
38. Dissatisfied with what she considered to be another inadequate response that did not address the points she had raised, Ms X brought her complaint to the Ombudsman.

Enforcement

39. Ms X contacted the Council’s Environmental Health Department in March 2021 to report excessive noise emanating from the Field. She also restated her previous concerns about unlawful disposal of asbestos on the site and dumping of sewerage.
40. The records show the Council carried out a site visit in April 2021 in response to Ms X reporting excessive dog barking from the Field. During the 45 minute visit, the officers did not witness any barking. Ms X says this is because Mrs P will have been made aware of the visit in advance.
41. Ms X says she was left extremely distressed by Officer J’s conduct during this visit and so made a formal complaint. She spoke to the officer’s manager who she says knew nothing about the matter but would speak to the officer concerned. She did not do so.
42. The Council carried out further site visits in November 2022 but decided not to take enforcement action. It has also explained waste disposal is a matter for either the Environment Agency or a different Council department.
43. The Council provided a response in May 2023. The Council has apologised for the delay and described it as what it described as “an inexplicable failure”. However, it was satisfied with the outcome of its enforcement enquiries. It explained to Ms X that there was no evidence of breaches on the Field that it would act upon.

Analysis

44. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant. I have considered Ms X’s specific complaints below.

The planning application

45. The Council’s position is that it fulfilled its duty, “to fully assess the harm a development would have on the local environment and weighing this harm against the benefit of the development. In this instance it was considered the harm would not outweigh the benefit of providing much needed housing to a family protected by the Human Rights Act.”
46. As I have stated above, my role is limited to the decision-making process, not the decision itself. On the evidence I have seen, including video recordings of the two Committee meetings, I am satisfied there was no fault.
47. I say this because the Council considered the material planning issues before it made its decision. It decided there would be some harm caused to Ms X and the AONB, but this was not enough to outweigh the benefit to the applicant, Mrs P. I am satisfied Ms X was allowed the opportunity to present her case to the Committee and she made them aware of her significant concerns. The Leader of the Parish Council also spoke to the Committee and raised similar objections.
48. Based on this evidence, I am satisfied the Committee was aware of the relevant planning considerations, as well as the areas of concern raised by Ms X, but decided these concerns were not enough to justify refusal of the planning application. This was a judgement it was entitled to make.
49. As regards the impact on Ms X’s amenity, the Council thought the separation distance and screening from trees and the stable block meant this would be acceptable. The Committee was aware the screening was only seasonal and there was a possibility the caravan could be sited nearest to Ms X’s property than the stable block. I understand Ms X strongly disagrees with this, but we are not an appeal body and cannot agree with the judgements made by officers and councillors in the absence of fault in the procedure. I have seen no evidence of fault in the decision-making process.
50. Nor do I consider Officer J’s report misled the Committee. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the Council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
51. However, the courts have made it clear that:
• Case officer reports do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• Case officer reports do not need to include every possible planning consideration, but just the principal controversial issues.
52. In this case, the Officer J’s report includes the key material planning issues, including the case officer’s view on the impact on Ms X’s amenity.
53. Ms X says the reasons given in the report are inadequate, but I do not agree. There is enough detail to show the case officer did not consider the impact significant enough to warrant refusal of the application. This view is supported by reasons. I appreciate Ms X strongly disputes what was written, but the professional opinion of the officer, based on his own assessment of the site, is not a matter the Ombudsman can interfere with.
54. Overall, I have not found fault with how the Council dealt with Mrs P’s planning application and how it considered the impact on Ms X’s home.

Enforcement

55. Ms X is also dissatisfied with both the failure take enforcement action about several breaches of planning control and the Council’s failure to respond to her complaint, particularly about the conduct of Officer J.
56. The Council has already accepted it failed to properly engage with Ms X during the complaints procedure. Ms X was promised a response, but this did not happen until two years after she first complaint to the Council. This is fault. I have made recommendations below to address the frustration caused to Ms X.
57. In respect of the officer’s conduct during the site visit, I can see the Council had partially addressed this in its initial response from 2021. This stated Officer J had expressed regret for the impression he had left. As this event happened two years ago, I do not intent investigating this further due to both the passage of time and this is essentially one person’s version of events against that of another. It would not be possible for me to make an evidence-based finding of fact.
58. I recognise Ms X disagrees with the Council’s overall assessment that the activities on site do not warrant enforcement action by the Council. Having considered all the evidence available, I am satisfied there was no procedural fault in reaching this decision. It has now explained its position to Ms X and invited her to report further breaches should they occur. This is a position the Council was entitled to make having assessed the situation on site.

Poor complaint handling

59. Whilst Ms X’s complaint was partially upheld due to the length of time taken to process Mrs P’s application, I agree with Ms X that the Council failed to provide a meaningful response to her substantive complaint about the case officer’s report and decision of the Committee. Its first response relied on the fact the application had yet to be decided for not going into any detail. But then failed to do so when it had been, and Ms X had specifically asked the Council to do so.
60. The Council’s complaints procedure states the stage two response “will ensure that all matters raised in the original complaint have been comprehensibly and accurately addressed.” This did not happen in this case. I consider this to be fault. There was also fault with how long the Council took to respond. The complaints procedure says a response should be provided in 20 working days. In this case, it took four months.
61. Overall, I found the complaint handling to be poor and have made recommendations below to remedy the distress and frustration experienced by Ms X.

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Agreed action

62. The Council has agreed to take the following action within four weeks from the date of my final decision.
1. Apologise in writing to Ms X for the fault I have identified in its handling of her complaints.
2. Pay Ms X £250 to acknowledge her distress and frustration caused by the fault in the complaint handling.
3. Share this decision with relevant officers and remind them of the requirements of the Council’s complaint handling policy to provide a comprehensive and timely response to complaints.
63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. I have upheld Ms X’s complaint and the Council has agreed with my recommendations to remedy the injustice to her and improve its complaint handling.

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Investigator's decision on behalf of the Ombudsman