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Brighton & Hove City Council (17 009 565)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 28 Mar 2018

The Ombudsman's final decision:

Summary: Mr R complains the Council failed to take enforcement action following activity by developers on land near his home. The Ombudsman has found evidence of one fault by the Council which did not cause an injustice. Overall it has acted in line with procedures. She has upheld the complaint, because of the one fault identified, and completed the investigation.

The complaint

  1. The complainant (whom I refer to as Mr R) says the Council failed to take enforcement action after activity by developers on land near his home.

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What I have investigated

  1. I have looked at how the Council investigated reports by Mr R about activity on the land from 2016 onwards. I explain below why I have not considered other parts of the complaint.

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The Ombudsman’s role and powers

  1. The Ombudsman cannot investigate late complaints unless she decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
  2. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  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

  1. I have spoken to Mr R and considered the information he provided. I asked the Council questions and carefully examined its response and supporting papers.
  2. I shared my draft decision with both parties and considered their comments.

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What I found

  1. In 2008 planning permission was granted, on appeal, for a housing development on land near Mr R. Conditions were attached to the permission along with, subsequently, a Section 106 Agreement (Section 106). Requirements included: the need to protect remaining trees on the site; no site clearance during nesting season (February to July) and the “translocation of slowworms” prior to any development commencing.

Events I have investigated

  1. On 19 December 2016 an agent acting for the developer of the site notified the Council that clearance works would be starting so that surveys required by planning permission could be undertaken. The next day Mr R called the Council and reported activity on the site including the partial demolition of a wall and clearance of foliage. A Planning Officer (Officer A) visited the site and took photographs. She noted that a section of wall had been demolished and foliage removed, this was coped to the Principal Planning Enforcement Officer (Officer B). The next day Officer B replied to the developer’s agent stating it was vital the required conditions and Section 106 were agreed before the “commencement of the development”.
  2. On 6 January 2017 a Councillor contacted the Council with concerns that slowworms on the site might be affected by activity. Officer B visited that day and emailed a response to the Councillor. He said the land clearance had not finished and there had been no further work. Development had not commenced in enforcement terms and there was no breach of planning conditions. On 24 January the Council received an application from the developer to discharge the planning conditions. On 10 February Officer B visited the site again after reports of further activity. He noted there were diggers removing tree stumps. He sought legal advice and was told by the Council Solicitor that removal of the stumps was not commencement of development. Officer B also emailed residents including Mr R. He explained about the legal advice and that until development did commence the Council could not start enforcement action. He had also consulted a Wildlife Protection Officer who had advised that unless there was evidence of slowworms being killed no action could be taken at that time. On 23 February Officer B received further legal advice stating that the demolition of the wall would constitute commencement of works.
  3. Mr R emailed the Council on 1 March about the case and a Planning Officer (Officer C) replied stating the Council was considering requests from the developer to vary the Section 106 and discharge conditions. Two weeks later Officer B asked for legal advice about the removal of the tree stumps. The Legal Team advised it wouldn’t be expedient to take action. The next day Officer B emailed residents, including Mr R, with an update. He explained that following legal advice it was considered the demolition of the wall meant “development had commenced”. In respect of conditions which needed approval before commencement “these are not impacted by the demolition…and are still possible to discharge, it is not considered expedient to enforce at this time”. Regarding the tree stump removal he explained the legal advice that as it was stumps not actual full trees there were no nesting birds that had been affected. As such it would not be possible to take enforcement action for breach of the condition about no development during nesting season. The Council had advised the developer they had failed to discharge conditions. It was currently in negotiations on these matters. He confirmed there were no enforceable breaches at the site and the investigation would be closed.
  4. On 22 March Mr R emailed Officer B asking about possible future breaches and reiterating that conditions had been breached. Officer B replied a week later, he reiterated his previous findings. Whilst there were conditions to be discharged before works commenced “some details can be agreed after works start with no negative impact”. He was not willing to discuss “any speculation about future breaches on the site”. In May Officer B made another site visit and found no evidence of work or construction starting.
  5. On 4 August the Council approved the application to discharge conditions. On 7 September the Council was told about further activity on the site which might harm slowworms. Officer B attended the same day. He noted evidence of machinery having been on site but no works taking place and no evidence of any construction. He notified the Legal Team and the County Ecologist. The Ecologist responded that they had no concerns. The developers appeared to have installed reptile fencing and refuges as required. On 11 September the Council attended the site to look at the Section 106 requirement to protect slowworms. It was satisfied that measures taken on site were in line with an approved methodology. On 23 October Officer B asked the Ecologist about slowworm relocation after further concerns from residents. The Ecologist responded on 2 November stating the translocation appeared to have been carried out in line with best practice. A week later Officer B was shown the final completion report of reptile translocation, it confirmed the slowworms translocation had been carried out correctly.

What should have happened

  1. A person can report an alleged breach of planning control to the Council, usually by completing an online form. That is then considered by the Planning Team. The case is allocated to an Officer to investigate. The Officer might carry out a site visit. If the reported breach involves possible serious harm a visit will usually be made within 48 hours. They can seek advice from the Council’s Legal Team. The Officer will update a complainant when there is a significant development in the case or a decision is made to take enforcement or close the investigation.
  2. If an Officer finds evidence of a breach of planning control they then have to assess the scale and impact of the breach and the risk it poses. This is called “proportionality” and government guidance requires a council to only take action proportionate to the seriousness of the breach. The Council says decisions about enforcement often involve “negotiating rather than proceeding automatically to the service of legal notices”. The Council is not required to start legal proceedings on every case where a breach of planning control is identified. If the Council considers that planning conditions can still be discharged after negotiations it is allowed to take that route. The Council’s policy confirms that “decisions on enforcement action are a matter of professional judgment”.
  3. A Section 106 Agreement is usually put in place where a development could have a significant impact on an area that cannot be solely moderated by planning conditions. The Council have to approve the details of the Section 106 before works start. In this case the Section 106 has a clause excluding some activities on site including site clearance and demolition.

Was there fault by the Council

  1. There is one instance of fault by the Council. When Officers sought legal advice in January 2017 it appears they only asked about the clearance of foliage and not the demolition of the wall. Given that Mr R and other residents were concerned about both actions I would have expected Officers to have looked into both activities when deciding if works had commenced at the site. Advice about the demolition was subsequently obtained from the Legal Team a month later. However I do not see this error resulted in an injustice which I explain below.
  2. I have not found evidence of any further fault by the Council.
  3. Officers, including Officer B, acted in line with procedures when investigating reports by residents. Site visits were made promptly, usually on the same day. On each visit Officers did not see any immediate cause for enforcement action. However they did correctly seek legal advice to clarify if enforcement should be considered. The legal advice confirmed that it was not expedient to take action regarding the tree stump removal and clearing foliage was not commencement of works. Furthermore whilst the demolition of the wall was commencement it was not considered proportionate to start enforcement action bearing in mind the Section 106 excluded demolition and clearance work. This information was shared by Officer B with residents and I consider they were kept reasonably informed about the progress of the case and decision making. The Council continued in 2017 to make site visits and confirmed that works to relocate slowworms had been correctly undertaken.
  4. I understand Mr R feels Officers, particularly Officer B, were unhelpful. I have seen no evidence to show Officers acted unprofessionally or unreasonably. Mr R refers to Officer B’s email of 30 March as being dismissive. The Council will not discuss potential future breaches as it cannot hypothesise about what might happen and so effectively prejudice future decision making. Whilst Officer B’s response could have been written differently I do not see it was rude but rather a brief description of Council policy.
  5. I appreciate Mr R disagrees with the Council’s decision not to take enforcement action. The Ombudsman will not call into question the merits of such decisions in the absence of significant procedural fault. As such I see no basis to query the validity of the decisions in this case.

Did the fault cause an injustice

  1. I do not consider the delay in obtaining legal advice about the wall demolition caused a significant injustice. That is because the Council concluded that whilst the demolition meant works had commenced it was not expedient to start enforcement action. That would have been the case whether the matters was considered in January or February and the actions of the Council would have remained the same in how it handled the enforcement investigation.

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Final decision

  1. I have upheld the complaint because of the one fault I identified and completed the investigation.

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Parts of the complaint that I did not investigate

  1. Mr R refers to a personal injury caused to a member of the public which he says was a result of activity on the land and a lack of compliance with health and safety conditions. I have not investigated this issue because there is no direct injustice to Mr R and he has not submitted a complaint acting on behalf of any person who may have been injured.
  2. I have not looked at events prior to 2016 because the Ombudsman usually expects a complaint to be made to her within 12 months.

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Investigator's decision on behalf of the Ombudsman

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