The Ombudsman's final decision
Summary: Mr X complained the Council failed to properly determine a planning application and failed to consider planning breaches and nuisances at the site. We did not investigate the way the planning decision was reached. We did investigate enforcement and environmental health issues. We found no fault by the Council. We also found no fault in the Council invoking its vexatious complainant policy.
The complaint
Mr X complains that: The Council failed to properly consider a planning application for a barn and stables in the green belt in 2020.
The plans were changed after the planning committee approved them without any further consultation and without proper consideration.
That the foundations of the building were not checked by the Council.
That the Council failed to properly consider and act on reports about planning breaches and environmental heath nuisances that he reported about the site.
That the Council wrongly treated him as a vexatious complainant.
What I have investigated I have investigated points b) to e) of Mr X’s complaint. The reason why I have not considered point a) is explained in the last section of this statement.
The Ombudsman’s role and powers
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) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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) 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 to Mr X and considered his complaint and the information he provided. I asked the Council for information and considered its response to the complaint.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Planning procedures – Amended Plans Applicants sometimes seek to change their plans during the planning process. The planning system allows for this. If the Council decides the changes are ‘material’, it may require some of the process steps to be repeated, for example, fresh consultation on the revisions. However, if the changes are considered ‘non‑material’ the Council may allow changes without re-consulting. In deciding this the Council should consider whether the amended proposal is still substantially the same or not, and the degree to which third parties lose the chance to make representations on revisions.
There is no statutory definition of what is or is not a non-material amendment. The question is one of fact and degree and a matter for the Council to decide.
Planning Enforcement National Planning Policy Framework (NPPF) Paragraph 58 of the NPPF states that effective enforcement is important to maintain public confidence in the planning system. However, enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.
Section 330 Planning Contravention Notice (PCN) Section 330 of the Town and Country Planning Act 1990 allows a council to issue a Planning Contravention Notice. This requires the recipient or other people with an interest in a site to provide information to the Council. The information must be provided within 21 days. The notice only requires provision of information.
Council Policy on Unreasonable and Inappropriate Complainants The policy sets out examples of behaviour that it covers. These include refusing to specify grounds for complaint, refusing to co-operate with the complaints process or insisting actions are carried out in a way which is outside council policy. It also refers to complainants who make seemingly groundless, malicious complaints or make unnecessary or excessive demands, make excessive contact or make repeat complaints about the same issues.
It states restrictions may include; placing limits on the number of contacts someone can make, who they can contact and how they may contact the council (for example email, phone etc). It states they may also require contacts to take place in front of a witness. The policy states the action taken will be proportionate and subject to review at least every six months.
Background
In January 2020 the Council received a planning application for a barn and stable block.
The Council notified neighbours and consulted on the application. In June, the applicant sent revised plans. The Council did not re-consult on the revised plans because it considered the changes were not significant. The application was referred to the planning committee who decided to approve it at the end of July 2020. The revised plans were those that the Council approved. The decision notice correctly referred to the revised plans.
Although the public were not re-consulted on the revisions, the case officer’s report and the committee’s consideration of the application were based on the revised plans.
Prior to the approval of the application, the Council asked the developer to resolve an issue with access and land ownership. I understand a different landowner owned some of the land that would be used to access the site, so it was necessary to serve notice on that landowner.
Planning Enforcement In June 2020, before the planning application had been approved, Mr X reported construction had started on the site. This did not have planning permission. At that time, a planning application had been submitted but not yet approved.
The Council provided copies of reports Mr X made about the site alleging various issues. These included buildings being constructed without planning permission, removal of trees and vegetation affecting wildlife, child labour, fencing without permission and construction on land that the applicant did not own. Mr X also expressed concerns that the site may not be used for a personal use, but for commercial or industrial purposes and he questioned issues such as electrical work and footings. Mr X also questioned the tarmacking of an access road.
In respect of the reports of buildings being constructed without planning permission, there is evidence the council sought more detail from Mr X about what specifically what was of concern. Mr X’s response referred to an L shaped building, a chimney and cold store. He stated vegetation had been removed and the fencing installed was not on the applicant’s land.
A council officer visited the site following Mr X’s reports. The Council provided a copy of the notes made from that visit. The notes stated “the suggestion from Mr [X] was that the build was not following the approved plans and has no foundations. The steel frame building is currently without side (bricks) but is connected to the ground on concrete bases.” The officer found no evidence the Barn was without foundations or that it was not in accordance with the plans.
The suitability of the foundations or footings is not a planning matter, but officers commented that there were concrete bases when assessing Mr X’s planning reports. Mr X also questioned electrical wiring issues and the supply of water. These are not issues that planning officers would resolve. Planning officers have a role to check if something is being built in accordance with the approved plans, but they do not check the quality of the work, or suitability of wiring. So, it was not fault that they did not do so.
The Council provided photographs that officers took at the site. The photographs do not show a cold store of chimney having been constructed on the site. The doors of the building look taller than the approved plans, but it appears in all other respects the barn was according to the planning permission. The construction work was still ongoing at the time of the visit and the lower parts of the walls (in brick) had not been constructed.
The Council explained that it had issued a PCN regarding the work carried out to the access road. This was a breach of planning control. A planning application was later submitted which was considered and approved by committee.
Mr X repeatedly questioned council officers actions and suggested because they took no action, this was evidence of corruption and the council should take disciplinary action.
Environmental Health The Council provided a chronology of reports Mr X made about nuisance on the site. These were received in August 2020, January 2021 and September 2021. Mr X stated there had been bonfires, dumping of hazardous waste at the site and fly‑tipping. Officers spoke with Mr X and visited in respect of each report. In 2020 and early 2021 they found no evidence of fires but continued to monitor the site. In September 2021 Mr X told officers they had not been more fires since his report. Following a visit in September 2021 officers noted the site was a building site but there were no environmental health concerns.
Correspondence with Mr X The Council wrote to Mr X on 11 January 2021 to explain that the council found his contacts to be inappropriate. The Council stated his behaviour had been derogatory and threatening in nature. As a result, it stated it had added Mr X to the Council’s Employee Safety Register and any future correspondence with the Council should be via the monitoring officer.
I note that in October 2021 the Council found Mr X’s request to escalate his complaint ignored the council’s response and Mr X had re-iterated much of his previous complaint including complaints of fraud and cover up. The officer noted alongside the complaint Mr X had made numerous Freedom of Information requests and numerous officers were being dragged into responding to the same issues. The officer noted there was discussion about inviting Mr X into the council to try and address his concerns and focus on the key issues. I understand the Council invited Mr X to discuss the issues of concern at a meeting. This seems to have been a genuine attempt to understand and respond to his concerns and to explain the planning system. I understand Mr X preferred not to attend a meeting.
In November 2021 the Council wrote to Mr X about requests for information he had made under the Environmental Information Regulations 2004 and Freedom of Information Act 2000. It stated it had supplied some personal information already, but it declined to respond to numerous identical / similar requests for information as it considered them manifestly unreasonable to the extent they were vexatious. The Council explained the legislation it relied on when denying Mr X’s requests and provided the Information Commissioner’s contact details should Mr X wish to challenge the decision.
On 22 November an internal email was sent from the Customer Services Manager to numerous council officers. It stated the council was involved in difficult dialogue with Mr X and the Council had banned him from contacting anyone other than one named officer, which Mr X was ignoring.
Was there fault by the Council Planning There have been planning breaches at the site Mr X complained about. It appears that construction on the site began in June before the planning application for the barn and stables was approved. However, national planning policy is clear that enforcement is discretionary and should be proportionate. Generally, where a breach has occurred, councils will ask the site owner to submit a retrospective application so they can consider if what is being built is acceptable. If it is, the application can be approved, if its is not, it will be refused, and appropriate enforcement action will be considered.
In this case, a planning application had already been submitted for the development that had been started. It would be considered unreasonable for a council to take enforcement action while an application was being considered. When the Council considered the application, it was acceptable, so there were no grounds to take action for starting work early. While it is a planning breach to start work without planning permission, it is not a criminal office to so do.
Later, work was done to the surface of the access road without permission. This was a further breach of planning control. Here, the council used powers available to it to require those responsible to provide information (via a Section 330 notice or PCN). Those responsible then submitted a retrospective planning application. I understand this was considered acceptable, so again, no enforcement action was taken. In both cases, this is usual practice. Action should not be taken solely to punish someone for having breached planning regulations. So, the Council’s approach here was appropriate.
The Council’s responses to Mr X addressed various other points he made. For example, the council noted that the ownership of land was not a relevant factor in deciding planning matters. The planning system decides whether a proposed use of land is acceptable or not. It does not consider whose land it is. The Council followed the appropriate steps to ensure that all those who owned land affected by the application were notified. If someone builds on land they do not own, this is a civil matter between the two landowners, not a planning matter that the council should or could resolve.
Environmental Health In terms of the environmental health reports and fly-tipping Mr X made, the Council took appropriate steps to investigate. Officers visited the site and assessed what they found. They had no grounds to take action against alleged fires that had occurred as these were not witnessed by officers. They took into account that the land was still a construction site. They considered there were no grounds to take action under nuisance legislation. The officers suggested if there were repeated instances of waste being brought to the site, Mr X may wish to update the County Council as they dealt with planning applications for waste sites. I found no fault in the actions taken or the way officers decided not to take action under the Environmental Protection Act.
Vexatious Complainant/Contact Restrictions The Council has a policy for dealing with contacts from members of the public that it considers unreasonable. The Council explained to Mr X that it considered Mr X’s contacts with the Council were repetitive, and derogatory and threatening to officers. As a result, the Council decided it should limit his contact. There is evidence of repeated contacts from Mr X about the same matter. I did not see specific threats to officers, but Mr X was at times derogatory. I found the Council was entitled to impose contact restrictions, this is the Council’s decision to make.
The Council’s policy requires the restrictions to be reviewed every six months, so I would expect it to carry out a review to decide whether restrictions should remain.
Final decision
I found there was no fault in the way the Council dealt with Mr X’s reports.
Parts of the complaint that I did not investigate I did not investigate the way the Council approved a planning application, This was a decision taken in 2020. It could have been brought to us sooner. As Mr X’s reports about enforcement were ongoing through 2020 and 2021 I exercised discretion to consider these from 2020 to date.
Investigator's decision on behalf of the Ombudsman