Summary: There is no fault by the Council in how it handled planning matters at a development near Mr B’s home.

The complaint

1. Mr B complains that the Council:
• Failed to properly consider the impact on him and access issues when it granted permission for a number of new properties on land adjacent to the estate on which he lives, and approved the application in error and without proper authority;
• Failed to take enforcement action when the developer constructed an access road in breach of planning control and planning obligations, and instead sought to remedy the breach by inviting the developer to apply to vary planning permission; and
• Failed to take enforcement action when the developer started work without first discharging planning conditions and was in breach of a planning agreement.
2. Mr B says that as a result of the Council’s actions, he has lost views that he was promised would not alter, and an access road is being built over public open space and against the terms of the planning permissions and the planning agreement. Mr B says that if he had known about the breaches, he would not have bought his house.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. I considered the information provided by Mr B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all comments received before reaching a final decision.

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What I found

The law and guidance

6. Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.
7. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
8. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
9. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
10. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.
11. Councils can also attach planning conditions to a permission. If a developer breaches these, the Council has a range of formal enforcement options.
12. 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.
13. 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.
14. 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)

What happened

15. This is a summary of the main issues and events, and does not cover everything that happened.
16. Mr B lives in a newly built housing estate overlooking open countryside. The Council granted outline planning permission for the development in 2016. The developer entered into a section 106 agreement. This required the developer to submit for approval, proposals for open space within the development. The section 106 agreement also said the developer would transfer the open space to a management company before the development was 80% occupied. The company would ensure the open space is maintained on behalf of the residents. The section 106 agreement does not allow the open space to be transferred to any individual.
17. In 2017, the Council granted planning permission for the reserved matters. This included details of the open space shown on the approved plan.
18. In 2021, Mr B moved in. His house overlooks the open space (a footpath, hedgerow and a wider play area), and open countryside beyond the development site. The owner of the adjoining land, which is the closest part of the open countryside, applied for permission to build a number of dwellings. This essentially extends the estate that Mr B lives on, and means that dwelling will be built in front of his house. The only possible access to the new site is over the open space approved under the 2017 permission.
19. Mr B and other residents objected to the development on the new site. He said the application was misleading because it said the developer did not need to construct a new access from the public highway that runs through Mr B’s estate. However, this road stops short of the new site and the open amenity space is a buffer between the public highway and the new site. The new developer would have to construct an access strip from the public highway, over the open space, to the new site. Mr B pointed out that this access strip would contravene the 2017 reserved matters planning permission and the section 106 agreement because it would alter the open space. Mr B also said that the section 106 agreement includes both sites and restricts the number of dwellings on both to 98. The new site would exceed the number of dwellings.
20. In 2023, the Council granted planning permission for the new site. It did not take the application to the planning committee. A senior officer was able to grant the planning permission under the terms of the delegation scheme that allows officers to make decisions. The officer’s report:
• Is clear that the intended access is from the public highway on Mr B’s estate via an access strip. It notes that the access strip will need to run across the open space. It describes the open space and says that the new access supports retaining the existing trees. The County Ecologists recognised that a small section of the hedgerow would be lost.
• Notes that residents have said there is no right of access from the highway to the new site and that the new development will mean they lose open views. The Council’s report says these are not planning considerations.
• The principle of development is established because the new site is within the development boundary of the village.
21. The Council attached planning conditions to the permission for the new site. These included that the developer must submit and the Council approve the landscaping details, geological surveys, construction plans, and the estate road details. These particular conditions had to be discharged before the developer started work on the new site.
22. Mr B complained to the Council that it should not have granted planning permission when the only possible access would contravene the section 106 agreement and the 2017 planning permission by changing the open space, and the developer had no right of way over this land.
23. The developer removed a section of the hedge on the open land, dropped the kerb and made up an access strip from the public highway to the new site. The developer also started work on the new site before discharging the pre-commencement planning conditions. This included it driving onto the site from another unauthorised access point, using heavy machinery, and felling trees to make way for the development.
24. Mr B asked the Council to take enforcement action as this was a breach of the planning permission. Mr B reminded the Council that the developer had also breached the section 106 agreement because it had not transferred the open space to the management company or completed the landscaping before the original development, on which he lives, was 80% occupied. Mr B asked the Council to take court action to enforce the section 106 agreement and take planning enforcement action to remedy the breaches of planning control.
25. The Council responded. It said:
• there was no fault in how it granted planning permission for the new site. It does not have to establish whether the developer has a right to access the site. If the developer is trespassing to access the site, then this is a private matter for the landowners and the Council has no role here.
• It agreed that the developer had breached planning control by constructing the access strip because this was not part of the 2017 permission.
• It agreed that the developer had breached the section 106 agreement because it had not transferred ownership or completed the open space landscaping before the original development was 80% occupied.
• It agreed the developer had breached planning control on the new site when it started work before the Council had discharged the relevant planning conditions.
• It did not agree that the section 106 agreement restricts the number of dwellings on both sites. The 2017 planning permission is for up to 98 dwellings on the original site. This does not stop the Council from granting permission for the dwellings on the new site.
• It had considered its enforcement powers. The access strip caused limited harm and also was the only means to access the new development which the Council had already decided was acceptable in planning terms. For this reason, it had decided not to take enforcement action but instead asked the developer to submit an application to vary the 2017 planning permission to allow an access strip through the open space. If the Council approve the variation this will regularise the breach.
• The Council has considered whether to take court action to remedy the breach of the section 106 agreement (that the developer had not transferred ownership of the open space). The Council decided that court action would not be proportionate, and that the space could not be transferred until the layout had been finalised, and this may be altered by the developer’s application to vary the 2017 planning permission. Once it has decided the application to vary, it will consider how to regularise the breach of the section 106 agreement.
• It had not held back from taking enforcement action to defend its decision to grant planning permission on the new site.
26. Mr B told the Council that enforcing the breached section 106 agreement was mandatory via court action. He also said it was not lawful to allow the application to vary the planning permission as the variation was not for the benefit of the original estate but was for the new development. In addition this would vary the operative part of the 2017 permission and this was not allowed by variation. Mr B cited case law to support his case.
27. The Council responded on this point, it said that it had considered the issues raised by Mr B, and it had carefully considered the legal position and case law. It had decided that it was lawful for it to allow the developer to apply for a variation of the reserved matters permission. It also referred to relevant case law in its response to Mr B.
28. Mr B raised that the residents have or should have a legal interest in the open space and were paying for this to be maintained, as such the Council cannot allow the space to be changed without the residents’ consent. However, the Council explained that these private rights are not planning matters.
29. Mr B also said that the Council should have insisted that all the residents of the original site should have been included on the certificate of ownership for the planning application on the new site. He points out that if the certificate of ownership is not correct, then the Council cannot accept the planning application as valid. The Council has considered this issue, and has decided that the section 106 agreement does not allow interests in the open space to be transferred to individuals. It has concluded that although Mr B and his neighbours pay a company for the maintenance of the communal areas and the open space, this does not give them a legal interest in these areas. The Council says this means that the developer did not have to include the individual owners on the certificate of ownership when it applied for planning permission to develop the new site.
30. The developer submitted details needed to discharge the planning conditions on the new site. The Council has discharged most of these conditions including those relating to landscaping, and construction management. The Council has not approved the road layout of the new site and the developer should have submitted details of this for approval before starting work.

Analysis

31. The Ombudsman’s role is to review how councils have made decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not taken into account relevant information, or failed to properly explain why it has made a decision. We call this ‘administrative fault’, and if we find it, we can consider what difference the fault may have made to the outcome, and ask the council in question to remedy it.
32. However, we are not an appeal body; we do not have the power to overturn council decisions or replace them with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly someone disagrees with that decision. We do not uphold complaints simply because somebody feels a council should have acted differently in a particular situation. Where there is disagreement about a council’s application of the law, where it has properly considered those allegations and set out its reasons why it disagrees, the question can only be conclusively determined by the courts.
33. I can see from Mr B’s perspective, it was relatively clear that the developer was going to breach the reserved matters planning permission by altering the open space and constructing the access strip to join the public highway with the new development. It was the only way to provide access to the new development, and the developer had indicated the new access strip on the application plans. However, the Council had to consider the application as it was submitted.
34. The Council properly considered the planning application for the new development. Mr B expected that the planning committee would decide the application, but under Council’s constitution, a senior officer was able to approve the planning application. The constitution says that this officer should be the Head of Planning. At that time, there was no Head of Planning and so the Assistant Director designate the Planning Manager to decide planning applications. This too is allowed under the Council’s constitution.
35. Mr B was promised by the agents that the land in front of his house would not be built on and that he would enjoy the open countryside views forever. However, this is not a material planning consideration for the Council.
36. The Council did not make reference to the section 106 agreement when it approved the new site, but it had considered that building on the site is acceptable in principle as it is within the village’s development envelope. The Council has explained why it does not agree that the section 106 agreement limits the development on both sites to 98 dwellings. Mr B continues to dispute this, but the Council has properly considered his position and explained its view that the 98 dwellings relates to the original site only.
37. The planning report is clear that the Council understood the access points for the new development and the residents’ concerns that this would mean a change to the open space. The Council has to (and did) consider access to the new development in terms of road safety, but whether the developer can physically, or has rights to, construct that access is not a material planning matter. Nor is the impact on any legal interests the residents might have. So, in short, there was no fault when the Council approved the planning application for the new site. It understood the development including the access issues, and it properly assessed the material planning considerations.
38. There was no fault when the Council decided not to take enforcement action in respect of the changes to the road and open space in breach of the 2017 planning permission. It properly considered the harm caused and whether it would be in the public interest to take enforcement action. It was open to the Council to decide that it would not be in the public interest, if the breach could be remedied by varying the 2017 planning permission.
39. The Council also properly considered its legal position to invite a variation of the 2017 planning permission that would change the plans to match the new access. Mr B does not agree with the Council and has sent it detailed argument citing relevant case law. However its responses to him show that it has given this its detailed consideration and can support its position with reference to the law. The parties disagree about the application of the law and as such can only conclusively be determined by the courts.
40. Since responding to my investigation, the Council has decided to grant the variation of the 2017 reserved matters permission to allow a change to the open space. Mr B thinks it has not considered the application properly. He can complain to the Ombudsman about this.
41. The Council agreed that the developer had breached the section 106 agreement. However, court action is not mandatory and the Council has to properly consider whether to start this. It has to weigh up what court action would achieve and whether it is in the public interest to take this approach. It was not fault for it to wait until it had decided the variation application to consider whether it needs to take any action to remedy the section 106 agreement breaches.
42. The Council has agreed that the developer has breached the 2023 planning permission for the new site, by not making sure the conditions are discharged before starting work. It has not fully addressed in its complaints correspondence with Mr B how it has decided what to do about this.
43. The Council could have taken enforcement action to stop the development while it deals with the breaches. Again, the Council has to consider the harm the breaches are causing and whether taking enforcement action would be in the public interest. The Council discharged the majority of the pre-commencement planning conditions between May and July 2023, so fairly soon after the work started. Provided that the felled trees are part of the approved landscaping, then most of the breaches have now been regularised. There was no fault when the Council decided to deal with these breaches by discharging the planning conditions in good time.
44. The Council has not resolved the breached condition that the developer must have the layout of the estate roads approved before it starts works. However, the layout of the roads of the new site will only have a very limited impact on Mr B and so I have not investigated this further.
45. Overall, the Council considered Mr B’s objections and the points he raised after it had granted permission in 2023. It took all the relevant factors into account when handling these planning matters and so there is no basis for me to criticise its decisions. In terms of enforcement, the Council has not failed to act. It has considered the impact of the breaches, whether these can be resolved via the planning process, and whether using the enforcement powers open to it is proportionate or in the public interest.
46. Mr B considers the Council did not have authority to determine the 2021 planning application (decided in 2023) because the ownership certificate was incorrect. However, Mr B does not have a legal interest in the land relating to this application. The site does include part of the original site on which Mr B lives, but only part of the open space. The section 106 agreement prohibits the open space being transferred to individuals. Instead, it should have been transferred to and maintained by a management company.
47. In any case, owners and residents affected were notified, by the Council, of the 2021 application and the Council therefore had the opportunity to consider their comments as part of its decision-making process.

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Final decision

48. I have completed my investigation. There was no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman