Summary: Mr B complains the Council has not taken enforcement action against a neighbouring development. He says the developer breached planning conditions and left spoil and shipping containers on site, which impacts on his enjoyment of the area. The Ombudsman finds fault in the delays and lack of communication in the Council’s enforcement investigation.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council has not taken enforcement action against a development that neighbours his house. He says the development of five flats includes basements, which were not part of the approved plans. Mr B says the developer has also left spoil and abandoned shipping containers on the site for a long period of time. He says the Council has not acted on this and says it is not a priority.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I considered the information Mr B provided and spoke to him about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments before making a final decision.

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What I found

Law, Guidance and Local Policy

6. 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.
7. 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.
8. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)
9. The Council’s planning enforcement policy says it will acknowledge complaints within five working days. It splits complaints into urgent and non-urgent. It says for urgent complaints the Council will commence its investigation and inform the complainant of its progress within 15 working days. For non-urgent complaints it is 25 working days.

Background

10. In 2007 the Council granted planning permission for a development of five terraced houses neighbouring Mr B. Planning permission was renewed in 2011 and 2015.
11. In March 2019 Mr B raised a concern with the Council about the development. He said the houses were being built with basements, which were not on the approved plans. The Council visited and found there was a breach of planning control as the basements were not included on the approved plans. It also found there was a slight breach in that the houses were built a few centimetres out of place.
12. The developer submitted a new application to amend the plan to include basements. The Council advised the new plan was in line with local policies. However, it refused the application based on reasons not related to the basements or design.
13. In 2019 the Council then considered whether to take enforcement action against the building. The Council decided the slight difference in location did not harm the amenity of neighbouring properties. It did not comment on whether the basements harmed the amenity of neighbours but said the basements have been ‘capped’ under the supervision of building control. The Council found it was not expedient to take enforcement action.
14. Mr B raised his concerns again in December 2020. The Council said it had already considered whether to take enforcement action and decided it was not expedient.
15. In February 2021 Mr B wrote to the Council again. The Council treated Mr B’s letter as a stage one complaint. Mr B said the Council appeared to have granted retrospective planning permission for the basements, removing his right to object. The Council did not uphold the complaint. It said it had not granted planning permission but decided not to take enforcement action.
16. Mr B made a stage two complaint. He said the site was in an Area of Outstanding Natural Beauty (“AONB”) and the developer had left spoil and shipping contains permanently on the site. The Council said it would respond to his original concerns at stage two. However, the shipping container and spoil issue was something the Council had not already investigated. The Council opened a new enforcement investigation into this matter.
17. The Council did not uphold Mr B’s stage two response. It said the stage one response had properly responded to Mr B’s concerns.
18. In June 2021 Mr B wrote to the Council asking for an update on its enforcement investigation into the spoil. He pointed out that it had been more than 30 working days since the Council’s acknowledgement. The Council said the enforcement investigation was ongoing. However, it was having a resource issue in its planning enforcement team and there were currently delays to investigations. Mr B chased in July 2021. The Council said it did not yet have an update. It was needing to prioritise cases, and this was not a high priority case.
19. In late July 2021 the developer submitted a further planning application to regularise the basements. The Council considered it would be able to address the issues with spoil and shipping containers through conditions on the planning consent.
20. In August 2021 the Council noted concerns about the spoil impacting on protected trees. As the planning application was ongoing the Council continued with the plan to address this through conditions. However, in late November 2021 the planning application was refused, again for reasons other than the design. The Council therefore considered other options to address the issue.
21. The Council says its enforcement investigation is ongoing and it is considering different routes to address the issue. One of those routes is through the tree preservation order (“TPO”) for the protected trees.

Findings

22. I have considered Mr Bs about two issues:
• The basements
• The spoil and shipping containers

Basements

23. Planning enforcement is discretionary. If the Council does not consider the unauthorised development causes significant harm to neighbouring amenity, then it can decide it is not expedient to take enforcement action. This does not mean the Council grants planning permission. Only that it will not enforce against the breach.
24. In this case, the Council investigated and set out clearly that it did not consider the slight change in location caused significant harm to neighbouring amenity. However, it did not comment on whether the basements caused harm, such that it was expedient to take enforcement action. Therefore, there is only evidence it considered the impact of one part of the breach, arguably the less significant part, when deciding whether to take enforcement action.
25. The Council commented that the basements were ‘capped’, which might suggest it did not believe there would be material harm for that reason. Although this is not set out clearly in the report. Mr B says this is not true as the basements are not capped. In its response to my enquiries the Council says it had reports from its building control team that the basements would be capped. However, it has not since checked whether this took place.
26. Mr B says the Council’s statement that the basements were capped was false and misleading. It is certainly the case that its report indicated the basements were already capped, when the planning enforcement had not checked that this had already happened. However, I cannot say this was deliberately misleading. It had information that the basements would be capped and this was the basis of its statement.
27. The issue is that the planning enforcement team did not follow up to check or, if it found they were not capped, consider whether they caused harm to neighbouring amenity. However, Mr B made clear in a telephone call to me that he does not seek filling in of the basements as a remedy. When I asked what remedy Mr B he hoped the Council would provide, he talked about removal of the shipping containers and spoil. I have dealt with this issue from Paragraph 30 onwards.
28. I understand Mr B is concerned the decision not to enforce allowed construction to continue without conditions about disposal of soil and the protection of trees. However, the impact of disposing of soil during the construction process is unlikely to have been a material planning consideration, either in determining an application or deciding whether to take enforcement action. I cannot say what, if any conditions the Council might have imposed relating to this had it approved an application. I also cannot say the Council should have advised or required the developer to submit a further application. It was the developer’s decision whether he submitted a further application and followed this through. He did not, so the Council had to consider whether it was expedient to enforce against the breach.
29. There is no indication Mr B considers the basements themselves cause significant harm to his amenity. I have therefore not found that there is fault causing significant injustice to Mr B. It is unlikely anything could be gained from recommending the Council investigate the issue of the basements further.

Spoil and containers

30. I find fault in the Council’s enforcement investigation into the spoil and shipping containers.
31. I understand the Council has had difficulties with staffing, which has led to delays in progressing cases that it has not identified as high priority. While that means the delays may have been somewhat outside its control, it still represents a service failure in that the Council did not start to investigate or update Mr B in line with the timescales set out in its enforcement policy.
32. The Council responded to Mr B in June and July 2021 to explain why there were delays. However, I cannot see that it continued to update him with its position from that point on. For example, there are no records that show the Council told Mr B it intended to deal with the issue through conditions, what the nature of those conditions would likely be or the timescales in which it believed this would be resolved. It did not outline whether the conditions would likely require full removal of the spoil and containers or otherwise. It also does not appear to have updated Mr B when the application was refused, and it instead decided to pursue the matter through tree preservation orders.
33. The Council has not told Mr B how it intends to treat the spoil and containers or what enforcement powers it considers it has. It is not clear whether the Council considers the spoil and containers amount to a breach of planning control, which it can enforce against. Or, if the reason it is trying to tackle the issue through other means, such as the tree preservation orders, is because it doesn’t believe there is a planning a breach. I would have expected to see the Council had outlined this to Mr B together with its reasons either way.
34. It is also not clear what impact enforcing against the tree preservation order will have. My understanding is that it is the spoil impacting on the trees. So, it is not clear whether any enforcement along these lines would also address the shipping containers, and if not whether the Council intends to take any other action in respect of the containers. Again, the Council has not clearly communicated its position to Mr B.
35. At this point in time, it is 10 months since Mr B initially raised concerns about the issue. Therefore, the Council should decide how it will address the issues and under what powers, communicate this to Mr B and progress the case without further delay.

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Agreed action

36. The Council has agreed to, within six weeks of this decision:
• Apologise to Mr B for the delay and lack of communication in its enforcement investigation
• Decide whether there is a planning breach or a breach of any other regulations or orders and, if so, how it will go about enforcement action
• Start the process of that enforcement action
• Communicate its decisions and reasons clearly and in detail to Mr B

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Final decision

37. The Council is at fault in how it investigated Mr B’s concerns about spoil and shipping containers.

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Investigator's decision on behalf of the Ombudsman