The Ombudsman's final decision
Summary: X complained about the Council’s failure to control development at a business near X’s home that has caused highway safety problems because of off-site parking of cars. We did not investigate this complaint further now, because the planning decision-making process is ongoing.
The complaint
The person that complained to us will be referred to as X.
X complained about the Council’s failure to control a business development on land near X’s home. X said the development has caused increased parking on nearby streets, that affects highway safety.
The Ombudsman’s role and powers
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: further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants, or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files.
I gave the Council and X an opportunity to comment on an earlier draft of this decision.
What I found
Planning applications, law and guidance Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.
If the development is already substantially completed, the developer can submit a ‘retrospective’ application to ‘regularise’ or make lawful what has been constructed.
Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
Planning considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
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.
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 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.
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.
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.
What happened X complained to the Council that a business operating on land near X’s home had extended their building without planning permission.
X said that there was a delay in the Council responding to their complaint, but eventually a planning enforcement officer confirmed there was a breach of planning control.
More recently, the Council received a retrospective planning application for the development, which has not yet been decided.
X lives some distance from the site and does not claim to be caused any direct harm from it. However, X said that visitors to the site often park on nearby residential roads. Photos on the Council’s planning website show cars parked on the pavement and blocking access driveways.
X said they had read Highways Authority comments, which: notes an obvious off-site parking problem that had increased in the last 12 months; it (the Highways Authority) had not been consulted by planning officers on a previous application, even though an increase in floorspace should have required additional parking spaces.
My findings
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.
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?
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.
I should not investigate this complaint further, because the current planning application has not been decided. We do not normally carry out investigations until the planning process and any subsequent appeal right has run its course.
X may come back to us after the planning process is completed.
Final decision
I ended my investigation because the planning decision-making process is ongoing.
Investigator's decision on behalf of the Ombudsman