The Ombudsman's final decision:
Summary: The Council could have provided fuller responses to the complaint to explain its planning decisions. This was fault. However, there was no fault in the Council’s planning decisions. There was no significant injustice caused to the complainants.
- Mr X and his partner, Ms Y, bought a house on a new housing development. They stated the developer breached planning conditions and did not build the development in accordance with the approved plans. They complain the Council failed to take action to rectify the situation.
What I have investigated
- I have investigated Mr X’s complaint about the Council’s actions. However, I cannot consider complaints they make about the County Council or the developers themselves. I have explained the reasons for this in the last section of this statement.
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 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)
How I considered this complaint
What I found
- Mr X and Ms Y complain about the way the Council dealt with concerns they raised about the development of a new housing estate.
- The original planning permission for the development was approved by the planning committee in April 2015 subject to a legal agreement. The legal agreement was signed on 27 July 2015 and the decision notice was issued on 30 July 2015.
- Mr X and Ms Y bought a house on the estate and moved in during June 2016.
- In October 2016 Mr X reported that developer was not adhering to the terms of the planning permission for the estate. Mr X stated the legal agreement for the development required works to the highway access to be completed before the development was occupied. However, these works only started in September, after people had moved in. Mr X also reported several other breaches of the planning permission. These were:
- Two additional car ports had been constructed adjoining a double garage at one of the plots on the estate. They stated these were not on the approved plans.
- They were concerned the developer was proposing to move a street light closer to their bay window which was not as shown on the plans.
- The developers told them they intended to construct the roads and driveways on the new estate in tarmac, but the plans showed they would be block paved.
- He stated the car ports referred to had been approved under the non-material amendment application in 2016. (However, the non-material application the officer cited was about a change to Mr X and Ms Y’s garage, not the car ports they referred to).
- Officer A acknowledged the developer’s original plans showed driveways should be block paved. He stated the developer had agreed to send in an amendment application to change driveway surfaces to tarmac. However, he stated if the developer did not send an application, the Council would not consider it expedient to pursue the breach of planning control. A planning officer told the enforcement team if the developer had originally applied to use tarmac this would have been acceptable.
- He told Mr X and Ms Y the developer intended to relocate a street light because the original position conflicted with a footpath. He stated if the street lighting complied with the County Council’s residential road design guidance, the Council, as the planning authority, would have no objection to the developer’s proposal to move the street light a small distance. He stated he understood Mr X and Ms Y had been shown the location by the developers as part of the sale process.
- The Council stated all but one lamp post was in place and parts were awaited. It accepted the lack of street lighting did constitute a breach of planning permission. However, Officer A felt it was not proportionate or expedient to take formal action as the developers were working to resolve the problem.
- The Council noted the change to the position of the streetlight closest to Mr X and Ms Y’s home would be a technical breach of planning permission, and that Mr X and Ms Y would not allow access for this in any event. The Council stated the developer had since agreed to locate the lamp post on open space land on the other side of the road. It confirmed this would be acceptable in planning terms.
- The Council confirmed the change from block paving to tarmac on some roads and driveways would also be a breach of planning control. This is because it was not in accordance with the approved plans. However, the Council told Mr X the developer had sent an amendment application to regularise the use of tarmac. It received this on 2 December 2016. The Council placed its consideration of this issue on hold pending the outcome of the application.
- The Council confirmed the original plans showed there would be a car port for the two plots Mr X and Ms Y had questioned. As this was not a breach of planning control the Council would not take action about this.
- The Council stated it had reminded the developer of the need to follow the CTMP in terms of delivery hours. The Council stated the issue was still live and asked Mr X and Ms Y to provide details of any further incidents where the CTMP was breached. The Council stated contractors parking on site was not something it could control. This would need to be taken up with the site manager.
- Mr X was dissatisfied with the Council’s response to the complaint. He noted the planning conditions required the lighting to be completed before occupation of the site. The site had been occupied since June 2016, so he felt it was not credible for the developer to claim the issue was a lack of parts. He noted the temporary lighting equipment on site was to allow construction to continue later in the day and was not to provide light for residents. In any event, he stated the temporary lighting had never been used. He also noted the developer had still to erect five lighting columns and not one as the Council stated. He felt there was no excuse for the breach of this condition and the lack of lighting provided to date.
- Mr X also felt the developer should not be able to change the surface of someone’s driveway as a ‘non-material’ amendment to the original planning permission. He stated as residents owned the driveways, it was inappropriate to consider a non-material amendment application to change the surfaces. Mr X also stated residents had not received notification of the non-material amendment application as required by planning rules.
- On 26 January 2017 the Council sent Mr X a further response to the complaint.
- The Council acknowledged the original response contained inaccurate information about the situation with street lighting and apologised for this. However, the Council stated the developer had agreed to move the lamp post that concerned Mr X and Ms Y, and as a result, they had delayed works to other elements of the street lighting. The Council considered this was a reasonable decision and the issue with the lighting did not warrant formal enforcement action by the Council.
- The Council told Mr X the developer had withdrawn the non-material amendment application for the change to road and driveway surfaces. The developer was considering putting in a full planning application to regularise these works and several other issues. This resolved Mr X and Ms Y’s concerns about deciding this matter, inappropriately as a minor amendment.
- The Council noted the developer no longer had a compound for storage and as a result, when deliveries were made, residents’ driveways may be blocked on occasions. Contractors vans may also need to be parked on the estate while works were completed. The Council stated these were short term events that were to be expected as work was completed on a new estate.
- Although breaches of conditions had been identified, the Council did not consider they caused sufficient planning harm to warrant the Council pursuing them further or taking formal enforcement action.
Subsequent Planning Application
- In March 2017 the developer submitted a planning application to amend the planning conditions for the housing development. This requested permission to change road and driveway surfaces, the re-location of the lamp post to a position opposite Mr X and Mrs Y’s property and some other changes.
- The developer’s application confirmed they had notified residents about the application, including Mr X and Ms Y.
- Mr X and Ms Y objected to the application. They were concerned about the potential for water to build up on the roads if the driveways were impermeable. They also noted the blocked paved driveways improved the appearance of the state and formed part of the original planning permission. They stated block paving would be harder wearing than tarmac on roads and driveways. They also noted that designated crossings that were proposed in the block paving had not been included in the revised plans. Overall, they felt the Council should require the developer to fulfil the terms of the original planning conditions.
- I contacted the Council to establish the position of the outstanding planning application form 2017. An officer told me he was seeking more information form the developers and was not content to determine the application as it had been submitted. The application is yet to be determined and the Council is in contact with the developer about the information it requires regarding this. The outstanding planning application includes considering of the suitability of the new road surfaces and other breaches of planning control at the site.
- Councils have a duty to record and investigate any report of a breach of planning control. In considering enforcement complaints, councils must have regard to the government’s policy on enforcement in the National Planning Policy Framework (NPPF).
- The NPPF acknowledges that effective enforcement is important to maintain public confidence in the planning system. However, councils are not obliged to take enforcement solely to regularise a breach of planning control or to ensure developments are carried out strictly as the plans show. Rather, councils have discretion and they have to decide if it is appropriate to take action, and what action to take based on individual cases. The NPPF says council should act proportionately and they should take into account the impact of any breach of planning when reaching their decision about what action to take.
Driveway and Road Surfacing
- I understand that Mr X and Ms Y felt the Council should formally enforce the road and driveway surface materials the developer stated he would use for the development in 2014. However, as I say above the law does not require councils to rigidly enforce approved plans in this way. In a situation like this, the council has to consider if the materials being proposed (tarmac) would be acceptable in planning terms. It will usually consider how it would have viewed the use tarmac roads and driveways if the developer had originally applied for them.
- If councils consider the new materials proposed are acceptable and would not cause harm in planning terms, they often have no grounds to refuse permission to vary materials used. For this reason I consider there was no fault in the Council’s initial view that it may not be expedient to take formal action. Since that time the developer has submitted a planning application, this is yet to be decided. However, I note Mr X and Ms Y have been able to comment on the application. It is for the Council to determine this application in accordance with the NPPF and its local planning policies. In this case the Council’s consideration includes whether permeable or impermeable surfaces should be accepted.
- In the event that the Council decides the variance in materials used is acceptable in planning terms, I can understand why Mr X and Ms Y may still consider that the developer’s decision to change the materials is frustrating and not acceptable to them. They noted the developer made this change after they purchased their property and they consider this a breach of contract.
- I should explain that the planning system exists to determine whether the development proposed is acceptable in planning terms only. It does not exist to protect an individual’s legal rights. So, quite apart from the Council’s planning decision on the materials that are acceptable, if Mr X and Ms Y considered the developer acted unreasonably by varying the contract they had, they may wish to take legal advice about how they may address any contractual issues with the developer.
- Although the Council could have explained the position more fully, I do not consider its decisions about the changes to materials represent fault.
- I have reviewed the original approved plans (ref J). These appear to show car ports for the two plots that Mr X and Ms Y questioned. This part of the plan could have been clearer (garages on other plots seem to have been outlined more boldly) but, as the plans do show car ports for the plots in question the Council’s decision that this was not a breach of planning control was appropriate.
- I note that Officer A’s original response incorrectly referred to a non-material planning application (for Mr X and Ms Y’s double garage) when responding. This error was unfortunate and caused some confusion.
- There are two issues here. Firstly, Mr X and Ms Y were unhappy the developer proposed relocating a lamp post nearer to their home. They noted the proposed location was their land and they would not allow this. Officer A’s initial response stated the Council would be unlikely to object to the relocation of the lamp post. However, he did not make it clear whether the Council considered this a breach of planning control.
- The Council’s first response to the formal complaint clarified this. It acknowledged there was a technical breach because the proposed position of the lamp post had changed from that shown on the approved plans. However, the developer agreed they would move the lamppost to land opposite Mr X and Ms Y’s property to resolve this issue.
- The planning system does not override the rights of those who own land. So, even if the Council had agreed the relocation would not be harmful to their amenity, and would be acceptable in planning terms, Mr X and Ms Y could still have refused the developer permission to land they own for the lamp post if they wished to.
- In terms of the overall lack of lighting, councils generally apply ‘pre-occupation’ conditions for a reason. In this case, the planning permission for the development required the street lighting for the estate to be operational before the development was occupied for residents’ living conditions and for highway safety reasons. The street lights were not complete and were not working when residents moved in. This is a clear breach of the pre-occupation condition.
- Initially the council’s response to this issue was flawed. The Council incorrectly accepted the developer’s statement that all but one of the street lights were in place. It acknowledged this when responding to the complaint. However, when it considered this further, it took into account the correct situation and maintained its view that it would be disproportionate to take formal enforcement action. Councils are required to consider whether it is proportionate to take formal action. When it considered the impact and noted the developer was working to remedy the problem, it decided formal action was not warranted. Although I appreciate Mr X and Ms Y may disagree, this is a decision the Council is entitled to take. I do not have grounds to question it.
Civil / Contractual issues
- The Council should reach decisions on the planning matters raised by Mr X and Ms Y in accordance with planning legislation. In terms of new housing estates, the Council will consider whether any deviations from the approved plans are acceptable in planning terms, but this does not mean the Council could ensure the properties that people have purchased are finished to the specification as sold, or as they expect. Mr X and Ms Y may wish to take up concerns about any changes to the specification directly with the developer.
Mrs Y’s condition
- Mr X had explained Ms Y had Asperger’s Syndrome. He noted that she saw things as ‘black or white’. This meant changes from the approved plans caused her greater anxiety and concern and she had the expectation that the development should be carried out strictly in accordance with the approved plans.
- The Council’s responses to the complaint were inaccurate at times. This caused some confusion and contributed to the escalation of the complaint. As the Council was on notice that Ms Y had Aspergers Syndrome, I would also have expected the Council’s decisions to have been better explained. I consider the flaws in the Council’s responses affected her more than it would have affected someone without her condition. As a result I recommended the Council pays Ms Y £100 to reflect the time and trouble she spent pursuing the complaint. It agreed to do so.
- I am satisfied the Council’s planning decisions themselves were reached properly. The Council is still considering what action to take in respect of the development as a planning application covering issues at the site is still being considered.
- The Council should pay Ms Y £100 to reflect the failings in the way it responded to the complaint and the time and trouble she spent pursuing the matter.
- There was fault causing injustice. I intend to complete my investigation on the basis the Council has agreed to the recommended remedy.
- Before someone comes to the Ombudsman, the law requires that they first complain to the council concerned to allow them an opportunity to resolve the complaint. I am not able to investigate any of the issues raised about the County Council as the complaints about the County Council do not appear to have been put to it as a formal complaint.
- The Ombudsman has no jurisdiction to consider complaints about the developer or their staff.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman