The Ombudsman's final decision
Summary: Miss X complained about the Council’s failure to take enforcement action against her neighbour’s development. We have not found the Council to be at fault because it properly investigated her concerns. We did not investigate Miss X’s complaint about planning permission granted to her neighbour in 2018 because it happened too long ago.
The complaint
Miss X complains about the Council’s failure to take enforcement action to prevent unauthorised development and activities on a neighbouring farm.
She also complains about the Council’s decision to grant planning permission in 2018.
She says the impact of the development has significantly affected her quality of life and amenity of her home because of excessive noise, dust, traffic and loss of outlook.
What I have investigated The restriction outlined in paragraph seven applies to this complaint because part of Miss X’s complaint is about events that took place over a year ago. The Ombudsman has discretion and can disapply this rule if there are good reasons. I have decided not to exercise discretion to investigate this aspect of the complaint for the following reasons: The Council granted planning permission for the development in 2018 and the building work is now complete. Miss X could have complained to the Ombudsman about the Council’s decision to grant planning permission sooner.
Furthermore, even if I were to say Miss X’s complaint was in time, my decision not to investigate would be the same. This is because I am unlikely to find fault by the Council.
From the Council’s detailed response on the issue to Miss X, I am satisfied the Council properly assessed the acceptability of the development, including the impact on neighbouring properties, before granting planning permission.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’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) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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)
How I considered this complaint
I spoke with Miss X and reviewed the information she provided, including photographs of the site.
I made enquiries with the Council, considered its response and reviewed the relevant law.
Miss X and the Council were given an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Planning enforcement 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.
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.
If there is a breach, one option is for a council to ask the developer to make a retrospective planning application without delay. (Section 73A Town and Country Planning Act 1990) Permitted development Permitted development rights are a national grant of planning permission which allow certain development (both building works and changes of use) to be carried out without making a planning application to the council as local planning authority.
What happened Miss X purchased her home in 2017, although did not move in until 2018. She was aware the neighbouring property (the Farm) was a working potato farm and expected a certain degree of agricultural activity and associated noise and traffic.
In 2018, the owner of the Farm (Mr D) was granted planning permission to erect an additional storage building. As a condition of this approval, Mr D was required to submit a surface water drainage plan prior to work starting. He did not do so.
In 2020, once the storage building was built, Miss X became concerned about increased activity at the Farm. Her assessment was that the site was being used as a distribution centre (whereas before, potatoes were stored, packaged and distributed elsewhere). In April 2021 she reported her concerns to the Council, raising the following specific issues: An increased number of large, overbearing potato boxes. Their impact was made worse because they were stacked on higher ground and next to Miss X’s boundary. Miss X was worried they created a potential fire hazard.
Hardstanding had been laid without planning permission, leading to possible surface drainage issues affecting neighbouring properties.
Unrestricted, excessive noise from farm machinery and increased agricultural activity.
Excessive HGV traffic to and from the site more akin to industrial use of the site.
She asked the Council to take enforcement action to place restrictions on Mr D’s activities and look into any possible breaches of planning permission that she believed had taken place. She also questioned the Council’s decision to approve the 2018 application.
The Council investigated Miss X’s concerns, including those about the 2018 application. In summary, it said: The consultation requirements were met and when approving the 2018 application all relevant material planning matters were properly considered by the Council’s planning committee.
The storage crates were not considered to be development that required planning permission. Any potential fire risk could be raised with the local fire authority.
The hardstanding was deemed to be permitted development and did not require planning permission.
The Council was satisfied the intensification of activity at the Farm was associated with the agricultural business and did not represent a material change of use.
The Council agreed Mr D had not complied with the condition of the 2018 permission because he had not submitted a drainage plan prior to the erection of the new building. In response to the Council’s enquiries, Mr D said he intended to submit the plan as part of a forthcoming planning application. This was accepted to the Council and so no enforcement action would be taken.
Noise and other disturbances were not planning matters and but could be referred to the appropriate Council department (the Public Protection Team).
Dissatisfied with this outcome, Miss X made a formal complaint. She provided the Council with a nuisance diary that she had kept as well as historical aerial photographs showing how the site had been overdeveloped over many years. She was also concerned the Council was demonstrating bias in favour of Mr D.
Miss X explained in some detail the devastating impact the neighbouring property had on her quality of life. She explained the overdevelopment and industrial scale use of the site has significantly affected her mental health and enjoyment of her home. She was now unable to make use of her garden because of the noise, vibrations, fumes and dust emanating from the Farm. In warm weather she cannot open her windows or go outside because of these nuisances.
To inform its response, the Council carried out a site visit to assess the current situation. The Council did not uphold the complaint, confirming the points made in paragraph 20 above. It also disputed any claims of bias.
The Council provided Miss X with more information about possible action it could take to address the noise and other nuisances she was experiencing. This would require further recordings to be taken. Miss X is reluctant to participate in this because she has no confidence it would make a difference.
Analysis We are not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made, and, where we find fault, to determine what injustice it caused.
For the reasons I have explained above, I am unable to investigate Miss X’s complaint about the 2018 planning permission.
In this case I am satisfied there was no fault by the Council in its response to Miss X’s concerns about the Farm. I say this because: It properly considered whether it was expedient to take enforcement action regarding the breach of planning consent when Mr D did not submit a drainage plan. It correctly followed government guidance by liaising with Mr D. It decided he could regularise the breach by including the outstanding drainage plan as part of a new planning application. This was in line with policy and it was within the discretion of the Council to take this approach for this breach. The Ombudsman cannot question the merits of this decision.
In reaching its decision about whether there was a material change of use at the Farm, the evidence I have seen shows the Council considered the photographic and other evidence produced by Miss X. It also reviewed the historical context of Farm and carried out a site visit. It then made a professional judgement about whether there was a breach and decided there was not. I appreciate Miss X strongly disagrees with this subjective opinion, and this is entirely understandable from the photographs I have seen. However, in the absence of any fault in the process, the Ombudsman is unable to intervene.
I found no evidence of bias in favour of Mr D in the records I have seen.
The Council properly advised Miss X of what support may be available from its Public Protection department to address the noise and nuisance problem. I understand from talking to Miss X that she does not wish to pursue this.
Conclusion
Miss X may disagree with the conclusions the Council reached but I do not find fault with the way they were made. It has considered the law, the evidence and Miss X’s view. It has responded to her points and given reasons why it does not agree with them. I have not found the Council to be at fault.
Final decision
I have not found the Council to be at fault. On this basis, I have completed my investigation.
Parts of the complaint that I did not investigate I have not investigated Miss X’s complaint about the decision to grant planning permission in 2018 for the reasons explained at paragraph 4 above.
Investigator's decision on behalf of the Ombudsman