Summary: X complained about the Council’s decision not to take enforcement action in relation to unlawful development on land opposite X’s home. We did not investigate this complaint further as we were unlikely to find fault, recommend a remedy for X or reach any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to take enforcement action in relation to development on land opposite X’s home.
3. X wanted the Council to respond to their detailed questions about planning obligations and decisions relating to the land opposite them.

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The Ombudsman’s role and powers

4. 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:

• there is not enough evidence of fault to justify investigating, or
• any alleged fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, 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, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint and spoke to a Council planning enforcement officer. I considered documents from its planning files, including the plans and the decision notice.
6. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning applications law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Planning enforcement powers

11. 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.
12. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
13. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. 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.
14. Some areas of land are designated as ‘greenbelt’ land. Greenbelt land is subject to enhanced planning controls, the purpose of which is to prevent urban sprawl by keeping the land open.
15. Government guidance says that inappropriate development in green belt should not be allowed except in very special circumstances, where the harm is clearly outweighed by other considerations.
16. Councils should regard construction of new buildings in greenbelt as inappropriate, but there may be exceptions, which could include:
• buildings for agriculture and forestry;
• facilities for sport and recreation;
• alterations to or replacements of existing buildings; and
• limited infilling or redevelopment of previously used sites (brownfield sites):
• where there is no greater impact than existing development; or
• no substantial harm is caused and the development contributes to affordable housing.

What I found

17. X complained about the Council’s decisions relating to:
• a planning application for a commercial development the Council approved; and
• a failure to take enforcement action for development on greenbelt land opposite X’s home.
18. The site is across a main road and screened by mature trees but can be seen through gaps in the trees. The site is about 40 metres away from, and about 20 metres lower than, X’s home.
19. Council planning enforcement officers considered X’s allegations and decided:
• unauthorised storage units on the site did not cause enough harm to the public to justify formal enforcement action; and
• the storage units were not, as X had suggested, on land controlled by a planning condition.
20. X disagreed with the Council’s explanation and asked for it to confirm X’s understanding of the planning status of the land and provide more information about planning obligations that apply to it.
21. I spoke to X about their complaint, and they said:
• the original application plan for the commercial development included a site plan that was not accurate;
• since the planning application was approved the developer had added storage units without planning permission, and this was in breach of greenbelt policy. X said this was inappropriate development as there were no exceptional circumstances to justify it;
• the Council had failed to explain its decision not to take enforcement action to protect the openness of the greenbelt; and
• X had professional qualifications and experience relevant to consideration of planning matters.
22. I spoke to a planning enforcement officer about what happened. The officer agreed with X that the storage units were a breach of planning control, not because they were in breach of a planning condition, but because there was no planning permission allowing them to be stored on the site. However, the Council had decided formal action was considered disproportionate at this stage because:
• the site was previously developed land;
• the colour of the units meant they caused little visual impact;
• the low number of units on the site, and
• their location was screened by trees and other landscape features.
23. The planning enforcement officer said the Council would reconsider the situation if there were any changes. The officer sent me a plan showing the site of the storage units, a plan showing land controlled by planning condition on the commercial development approval, and emails to X explaining the Council’s enforcement decision.
24. In response to an earlier draft of this decision, X said the harm to the public is not consideration in greenbelt matters.

My findings

25. 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.
26. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
27. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
28. I will not investigate this complaint further, and my reasons are as follows:
• X lives a significant distance from the site. I am not persuaded that X is caused a significant injustice by the Council’s decision to approve the commercial development and its subsequent decision not to take enforcement action in relation to the site.
• X raised concerns about the impact unlawful development might have on greenbelt land. While this does not cause X a personal injustice, I decided some further investigation was justified. This is because greenbelt policy is meant to stop urban sprawl and protect the openness of land, so there was a potential public interest reason for doing so.
• I spoke to a planning enforcement officer and found before a decision was made, the Council considered its powers, it took account of the circumstances it found on the site and other relevant evidence, it found a breach of control, and then considered potential harm to the public and the proportionality of potential action. This is the decision-making process we would expect, and so further investigation is unlikely to find fault in how this decision was made.
• I know X doubts the Council’s decision is lawful, but we are not a court and cannot determine questions of law. Our main role is to decide whether individuals are caused a significant personal injustice because of fault by councils. For the reasons set out above, I consider it unlikely further investigation would result in a finding of fault, a remedy for X or any other meaningful outcome.

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Final decision

29. I ended my investigation as it was unlikely to result in a finding of fault, a remedy for X or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman