Summary: Mr X complains the Council failed to take appropriate enforcement action regarding a breach of planning control by his neighbour. We found there was no fault, and this was a decision the Council were entitled to make.

The complaint

1. Mr X complains that the Council failed to take appropriate enforcement action regarding a breach of planning control by his neighbour. He stated his neighbour’s planning application stated no trees would be harmed or removed, but his neighbour cleared an area of ancient woodland and put down hard surfacing. Mr X complains the Council has not required action to rectify the damage.

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The Ombudsman’s role and powers

2. 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 a council’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)
3. If we are satisfied with a council’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

4. I considered Mr X’s complaint and the information he provided. I asked the Council for information and considered its response to the complaint. I took account of national planning policy and the information available on the Council’s online planning files.
5. Mr X 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

National Planning Policy Framework (NPPF)

6. 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.
7. Paragraph 180 of the NPPF states, when deciding planning applications, councils should consider if they will cause significant harm to biodiversity or result in the loss or deterioration of irreplaceable habitats, such as ancient woodland. It states in general that development that causes loss of Ancient Woodland should be refused unless there are exceptional reasons for it or unless a suitable compensation strategy exists.

Background

8. In September 2020 the Council approved a planning application for the conversion of a former care home and change of use to two residential houses. The application form stated there were no trees on or adjacent to the development site. It stated the site was not on land or adjacent to land which contained important habitats or other biodiverse features. The case officer’s report noted the application did not include any external changes to the care home building.
9. The approved plans showed that another building between Mr X’s property and the care home was not part of the development. I refer to this as Building Two.
10. Another planning application was submitted on 16 October 2020. This was a revision to the first application, and included the development of Building Two. The proposal was to convert Building Two into a residential house. This was under consideration while Mr X’s complaint was being considered. It was approved on 25 June 2021.

Planning Enforcement Reports

11. On 30 November 2020 Mr X reported that the developer was excavating land with a digger in the ancient woodland on the development site and he was arranging to lay concrete rafts. He did not have permission for this. Mr X stated damage had been done to the ancient woodland.
12. On 1 December the Council confirmed a tree officer had visited and an enforcement investigation had started. The officer explained to Mr X the developer had been told to stop all works until the investigation had taken place. Mr X later updated the Council that works for spreading aggregate in the woodland were still continuing and more work was carried out on 2 December. It appeared the developer was preparing the area to pour concrete.
13. On 3 December the Council served Tree Preservation Orders (TPOs) to protect the woodland. The Council confirmed this to Mr X on 4 December. Mr X stated that work seemed to have stopped as a result.
14. On 3 March 2021 Mr X chased the Council for an update on the enforcement investigation. An officer responded later that day. The officer stated the enforcement case was closed on 23 February. She stated the Council decided it was not in the public interest to remove the hardstanding. The officer stated officers considered the removal of the hardstanding could cause more harm to the surrounding vegetation. She stated the TPO would remain in place, preventing further development in the Ancient Woodland. In further correspondence the officer stated the Council did not consider the hardstanding affected the visual amenity of the wider landscape and the development was minimal (just the hardstanding), so it would not be pursued further.
15. Mr X raised a complaint as a result. He complained the work to the hardstanding was half-finished and together with the removal of trees and bushes, he considered it definitely affected the landscape. He considered the area should be rectified or the developer should be made to make amends for the damage. He stated the local councillor and the Parish Council both considered that action should be taken.
16. The Council’s response explained the actions taken to consider the issue. It reiterated that officers had visited the site and works were stopped. The Council identified the work was a breach of planning control and a TPO was imposed. However, the Council noted that while it did not condone unauthorised development, the planning system is not set up to be punitive. It stated action was discretionary and it had to decide whether it was expedient to take action.
17. The Council stated the planning harm caused by the hardstanding was not a ‘significant detrimental impact to the visual amenity of the landscape…or residential amenity’. It stated the removal of the hardstanding could also cause further damage to the remaining vegetation and the trees in the area. As a result, it was not considered expedient to enforce the removal of the hardstanding.
18. The Council stated that it did not have grounds to require re-planting, because a TPO was not in place at the time trees were removed.
19. Mr X acknowledged that it was understandable the Council wished to avoid further damage. However, he considered replanting could be achieved elsewhere on the site. He stated there was considerable visual impact from his property as it now overlooked the half-finished hardstanding.
20. In May, the Council’s further response to Mr X’s complaint explained its decision not to take action. It stated part of the consideration of whether it was expedient to take action involved the planning history of the site. It stated there was approved planning permission on the site to convert the care home to two dwellings. The Council was satisfied that this permission had not yet been implemented. However, if this was implemented, the developers would have permitted development rights. Permitted development rights allowed for the laying of a hardstanding within the curtilage of a property. The Council stated it took account of this because, once the planning permission was implemented, the hard surfacing would be allowed.
21. The Council explained why it did not consider there was a significant impact to Mr X’s residential amenity. It broadly stated by residential amenity it meant someone’s living conditions, such as privacy, light, overbearing affects and outlook. The Council stated the right to a view is not a material planning consideration. Because Mr X’s property as over 30m from the hardstanding it did not consider there was significant harm to his amenity.
22. The Council stated the second planning application for the building nearer to Mr X was not yet decided. It stated depending on the outcome of the application, and if the original planning application was not implemented, the Council could potentially reconsider the matter. The Council explained at this stage it did not consider it would be successful in defending an enforcement notice if one was issued and it was appealed.
23. The Council explained it had no planning powers to require replanting of trees unless they were covered by a TPO at the time they were removed. The Council also answered various questions Mr X posed about the site and planning processes. The Council subsequently responded to further queries Mr X raised about its response to the complaint. Its decision remained that it should not take enforcement action.

What should have happened

24. Councils are not under a duty to take formal enforcement action whenever they identify a breach of planning control. Rather, the NPPF requires them to strike a balance between acting to uphold the integrity of the planning system while also acting proportionately.
25. When we investigate, we are considering whether there has been a failure to carry out a duty the Council has or if its decisions are flawed. We cannot replace our judgement with the decision maker’s to determine if they or someone who opposes the decision are correct. It is on this basis that I have considered Mr X’s complaint.
26. I understand the site as a whole contains an area of Ancient Woodland and that Mr X highlights that this should have been properly identified as part of the original planning approval. I note his comments about this. However, as the planning application to convert the care home did not propose work externally, I do not consider any failure to make reference to this at the planning application stage caused the breach of planning control. The breach was caused by actions of the developer.
27. When the Council was made aware of the breach by Mr X, officers visited the site. The Council applied a TPO to stop any further impact to the site. The enforcement officer’s report and the Council’s subsequent correspondence with Mr X explained how it reached this decision not to take formal action, and why it did not intend to require works to rectify what had been done.
28. The enforcement officer considered the visual impact and scale of the works and the amenity of others. They also took account of the importance of the Ancient Woodland when making their decision. The Council is entitled to decide not to take formal action as it has in this case.
29. Although I understand Mr X disagrees, I found no fault in the way this decision was reached. As a result, I do not have grounds to question it.

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Final decision

30. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman