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Newcastle upon Tyne City Council (17 013 964)

Category : Planning > Enforcement

Decision : Closed after initial enquiries

Decision date : 28 Mar 2018

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Ms B’s complaints the Council has failed to take enforcement action for non-compliance with planning conditions and is now considering a new planning application. Further investigation of the complaint is unlikely to find fault by the Council.

The complaint

  1. The complainant, whom I shall call Ms B, complains the Council has failed to take enforcement action against a developer for breaches of planning conditions. Ms B is concerned the developer has never implemented required planting and landscaping measures and the land is now the subject of a new planning application.

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The Ombudsman’s role and powers

  1. 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)
  2. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. I have considered the information Ms B provided when she made her complaint and the comments she made in response to a draft decision I sent to her. I have considered the planning documents available on the Council’s website.

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What I found

  1. The Council granted outline planning permission in 1999 for major development near to Ms B’s home. The land was divided into “cells”. There have been numerous planning applications relating to this land since 1999.
  2. In May 2017, the Council received an outline planning application for the development of over 66 hectares of land. The development to include residential dwellings, educational provision, playing fields, ecological enhancements and habitat creation.
  3. Ms B contacted the Council in June 2017 in response to this planning application and raised an enforcement complaint. She explained that conditions attached to previous planning permissions for this land had required planting and landscape ecology mitigation but the developer had not carried out these measures. Ms B says that if the Council had ensured the conditions were implemented, there would now be established wildlife habitats in the relevant areas.
  4. The Council has accepted there were some delays replying to Ms B and she was not kept informed of its investigation. The Council has now considered Ms B’s enforcement complaint and decided not to take any enforcement action. This is because the land in question is now part of a new planning application. The Council has explained to Ms B that it is not expedient to take enforcement action while the new application is pending, as the application includes proposed treatment of the same area of land. If planning permission is granted, the conditions attached to the 1999 planning permission will be superseded and unenforceable.
  5. While Ms B is unhappy with the Council’s decision not to take enforcement action, we will not investigate this complaint. It is not for the Ombudsman to say whether the Council should take enforcement action. We cannot criticise the Council’s decision unless there was fault with the way that decision was made.
  6. Enforcement is a discretionary power. Further consideration of the complaint is unlikely to find fault because officers have considered the previous planning conditions, the current situation with the land and the new planning application before making their decision.
  7. The Council has acknowledged failures to deal with Ms B’s enforcement complaint in a timely manner and to reply to correspondence. The Council has now made an enforcement decision, explained this to Ms B and apologised for the failures to reply. Further consideration of a complaint about the Council’s complaints handling would not achieve any more for Ms B.
  8. We cannot consider a complaint about the new planning application until the Council has decided whether to approve it. We cannot consider if there is fault causing an injustice to Ms B when there is no decision.
  9. If, when a decision is made, Ms B is unhappy with this and believes the Council has failed to properly consider the application and her representations, she can come back to the Ombudsman to pursue this part of her complaint.

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Final decision

  1. The Ombudsman will not investigate this complaint. This is because further consideration of the enforcement complaint is unlikely to find fault by the Council. And we cannot consider a complaint about the current planning application until there is a decision.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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