Summary: Mrs B complained about the Council’s actions in approving a landscaping condition attached to a planning permission for development near her property. She says the Council has failed to protect her amenity and she has lost all privacy. We did not find fault with the Council.

The complaint

1. Mrs B complained that East Lindsey District Council (the Council) in granting planning permission for development near her property including a landscaping scheme, failed to protect her amenity. She says she has lost all privacy as a result of the development. She also says the Council has said it is not able to take enforcement action because the planning conditions are unenforceable.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. We 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. Mrs 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

Enforcement action

6. 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.
7. 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 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 to resolve issues through negotiation and dialogue with developers. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
8. 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)

Planning conditions

9. Planning permission may be granted subject to conditions relating to the development and use of land.
10. Councils often impose construction management planning conditions on approvals for major developments, to reduce noise, dust and disturbance form large scale construction sites. While these conditions may help lessen the harmful impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.

What happened

11. Mrs B’s neighbour submitted a planning application for development on their land which was adjacent to the rear of Mrs B’s house and garden. The application included building a training area for their own horses with a new access road.
12. The officer report to the planning committee recommended approval. In the section considering the impact on the neighbours’ amenity it said:
• Facilities for horses were not uncommon in rural and village settings and in this case, it was limited to the use of the applicant’s horses only (currently four), in an existing paddock area.
• In respect of noise and overlooking, it said the keeping of horses was generally fairly peaceful in nature. But it acknowledged that activity at the site would increase. It decided against a restriction requiring daylight hours use only because the land was already used for grazing horses and there was nothing to stop the applicant caring for his horses whenever necessary. Any limitation would be unreasonable because the intensification of use would be modest and restricted by the availability of natural light.
• It noted there was a two metre-high hedge on the boundary which would help screen the development and mitigate the perception of overlooking. In addition, there would be a 1.5 metre landscaping buffer which could be controlled by a condition.
• It concluded that many of the neighbours’ concerns could be addressed by conditions. It acknowledged the proposal would have some impact on neighbouring properties, but with conditions these impacts were acceptable and would not cause significant harm to neighbouring amenity.
13. The application was approved with conditions in November 2021 by the planning committee. Mrs B objected to the application.
14. The decision contained a number of conditions including:
• Submission of a landscaping scheme to ensure that appropriate landscaping is provided to integrate the site into the local area.
• Submission of the details for manure disposal and other waste material, in the interests of the amenity of local residents.
• No external lighting to be installed without prior approval by the Council, in the interests of the character and appearance of the development and the visual amenity of the area.
• Restriction of the use of the facilities for the domestic purposes of the applicant and no commercial use, to safeguard amenity.
• A restriction on construction hours including deliveries, in the interests of local residents.
15. The applicant submitted a landscaping scheme first in June 2022 which included reference to Mrs B’s hedge and required this to be kept at two metres. Mrs B complained that this was not the applicant’s hedge to control. The Council requested an amended scheme which was submitted in September 2022. This showed a 1.8 metre close-boarded fence on the boundary with a 1.5 metre strip of landscaping then the access road, creating a five-metre buffer zone from the training area.

Complaint

16. Mrs B complained to the Council that the landscaping scheme would take several years to mature and would not stop people on horseback or in vehicles from looking into her property. She also complained about the way planning permission had been granted and the Council’s failure to take action about breaches of the working hours conditions.
17. The Council visited Mrs B and responded to her complaint in November 2022. It said that the planning application had been properly considered and approved. It had been fully considered by the planning committee and the approval contained a number of conditions protecting the amenity of neighbours.
18. One of the conditions was for a landscape scheme to help integrate the site into the local area and in the interests of nearby residents. The Council accepted that during construction and before the development was fully complete Mrs B was being affected by activity on the site. However, it considered this was an inevitable but temporary consequence of development and would significantly improve once the development was finished.
19. It also accepted that the landscaping would take time to grow but combined with the fence would reduce the impacts to an acceptable level. In reaching a conclusion on this point it noted that the development was restricted to personal use only.
20. It advised her to raise any concerns about possible breaches of the planning permission with the enforcement team.
21. Mrs B remained unhappy and escalated her complaint to stage two. She said a three metre high fence was needed to properly protect her privacy.
22. The Council responded at stage two of its complaints procedure. It upheld its response at stage one and consider the landscaping scheme provided appropriate screening to mitigate the impact on her to an acceptable level.

Enforcement

23. The Council responded to her enforcement queries in January 2023 and Mrs B complained to us in February 2023.
24. In April 2023 Mrs B said that the Council was not taking action against the height of the road which she said had been raised, because there was no condition controlling the levels.
25. The Council said in response to a draft of my decision that there was an ongoing complaint in respect of the enforcement issues.

Analysis

Planning application

26. The Council properly approved the planning application more than 12 months ago. It considered nearby residents and acknowledged there would be an impact on their amenity. But given the low-level use of the site, its existing use as a paddock, and the controls on lighting, commercial use, waste disposal and landscaping, the Council concluded the development was acceptable. Mrs B objected to the plans and had the opportunity, to provide full details as to how the development would affect her including the height of the road, the noise from the development and concerns about privacy. I do not find fault with the Council here.
27. If she was unhappy with the decision she could have complained about the process at the time. Instead, she has waited until the landscaping condition was approved to again raise her concerns about the impact of the whole development.

Landscaping

28. I do understand Mrs B is very distressed by the potential impact of the development, but the Council properly considered the impact when it approved the application in 2021. Mrs B considers the landscaping treatment should completely protect her privacy. That is an unreasonable expectation. The planning condition required details of the landscaping scheme to be submitted and approved. These details included a 1.8 metre fence and a 1.5 metre screen of shrubs. The Council considered this met the terms of the condition and discharged it. There was no requirement to consult Mrs B or reconsider all the issues raised in the original planning approval. It had already decided that with the landscaping scheme in place the impact of the development would be reduced to an acceptable level. I have not found fault with its actions.

Enforcement

29. In respect of the enforcement issues the Council is considering Mrs B’s concerns. As the issues are ongoing and Mrs B has not completed the complaints procedure it is too early for me to reach a view on this issue.

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Final decision

30. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mrs B.

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Investigator's decision on behalf of the Ombudsman