Summary: Mr X complains the Council failed to take enforcement action regarding a development. The Ombudsman’s decision is that there is no fault by the Council causing injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains that the Council failed to take enforcement action regarding a development in a conservation area near his home. He says the Council

• Did not properly consult regarding changes to the development.
• Did not apply conditions to the approved plan when the Planning Inspectorate had regarding previous plans.
• Delayed responding to his reports regarding the disruption from the building work and his complaints.

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The Ombudsman’s role and powers

2. 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)
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

4. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. I have also considered the complainant’s comments on my draft decision.

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What I found

5. Mr X lives in a conservation area. He contacted the Council in October 2017 when building work started on a development near his home. He said that a planning application for the site which had been agreed by the Planning Inspectorate at appeal had conditions attached regarding a construction management plan (CMP) to prevent disturbance to residents, and to protect the historic road surface.
6. Mr X said that heavy vehicles which were over the agreed weight in the CMP had used the road to deliver building materials and had damaged the road surface. Concrete slurry from the site had also caused damage and contactors’ vehicles had blocked the road. Mr X sent further reports regarding vehicles during October. He chased the Council for a response in November.
7. The Council sent Mr X an acknowledgment and stated that it would inform him of the outcome of the investigation when it was completed. This would normally be within 13 weeks but could take longer in some cases.
8. The Council’s enforcement officer visited the site in November 2017. She did not see any construction workers’ vehicles at the site. She noted that properties nearby were undergoing renovations. She spoke to the owner who advised that vehicles drove to the site for deliveries but did not park in the vicinity. The enforcement officer advised the owner that a CMP had been submitted with the planning application.
9. Mr X chased the Council again for a response in February 2018 and complained about its lack of communication. He said he suspected the Council had not followed up the planning inspector’s recommendation for a CMP to be approved before construction started. He said that cobbles in the street had been dug up, despite developer’s claims that there would be no need to excavate them.
10. The Council responded in February 2018. It apologised for the delay in responding. It said it had investigated and confirmed that the approved planning application that Mr X had referred to had been superseded by a revised plan, approved in 2017. The new planning permission did not have a CMP condition attached. Therefore, the Council could not enforce the terms of the CMP. However, it said despite no attached CMP condition, it had discussed the issue with the owner and carried out a number of site visits. It had not witnessed any parked delivery or construction vehicles. The Council closed its enforcement investigation.
11. Mr X replied that he felt let down by the Council. He said he had not been notified regarding the revised application and in his view the Council had ignored the planning inspector’s conditions and recommendations in the previous approved plan. He said he and other residents had suffered significant disturbance.
12. The Council’s enforcement officer acknowledged Mr X’s email, and stated she had passed it to her manager. However, the Council did not respond.
13. Mr X emailed the Council again in April 2018 because he had not received a response.
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16. The Council
17. did not reply and so Mr X complained to the Ombudsman. As the Council had not completed its complaints procedure, the Ombudsman referred the matter back to the Council.
18. The Council’s stage one response sent to Mr X in September 2018 confirmed that it did not attach a CMP condition to the revised plan. The Council noted what the planning inspector had said about the CMP. However, the Council said that it rarely applied CMP conditions on decisions for single dwellings because these conditions rarely met the tests set out in paragraph 55 of the National Planning Policy Framework 2018 (NPPF). The Framework sets out how the Government’s planning policies for England should be applied. Paragraph 55 states:

“Planning conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.”

19. The Council explained it must consider the scale and the potential harm of the reported breach before issuing a Breach of Condition Notice. It said that there is no right of appeal regarding the notice, and failure to comply is a prosecutable offence. Therefore, officers must be satisfied the breach relates to the reason for the condition and that it can be evidenced. The breach must be persistent and not sporadic. If the Council did not have satisfactory evidence, it would not satisfy the evidential test for prosecution and therefore the Council could not take this action. The Council said blocking the highway was, in any case likely a police matter.
20. The Council responded regarding Mr X’s complaint that the Council failed to properly investigate and failed to communicate between October 2017 and February 2018. The Council said the enforcement officer visited unannounced in November 2017 and did not identify a breach. The officer noted that a CMP condition was not attached to the new approved plan. Therefore, the Council could not enforce any CMP the developer had submitted. However, the officer spoke to the owner about residents’ concerns, in an attempt to negotiate a voluntary resolution. The officer carried out further visits but did not witness any delivery vehicles parked on site. The Council agreed there had been a short delay in responding to Mr X while the officer attempted to address his concerns.
21. Mr X complained further in October 2018. He asked why the Council had left out the CMP condition given that the planning inspector said it was required and the Council had imposed it before. The developer had submitted a CMP with the new plan. He asked if the Council’s lack of a condition was deliberate. He pointed out the new NPPF came in in 2018 after the Council’s decision. The planning inspector had also stated a condition was necessary to protect the cobbled surface of the road. Mr X considered the planning inspector’s condition was mandatory. Mr X did not consider the delay of 16 weeks in advising him was a short delay. He felt the Council could have advised him earlier there was no CMP.
22. The Council replied in November 2018. While it noted a CMP plan was submitted, it said it did not apply CMP conditions as regularly as it did in 2013. The Council said the tests for applying conditions set out in the 2012 and 2018 NPPF were similar. It explained that CMP were notoriously difficult to enforce. It said that such conditions rarely achieve the level of compliance that members of the public would like to see. Therefore, the Council had carefully managed the use of such conditions in recent years. It would not require a CMP on smaller schemes unless absolutely necessary, and each application was considered on its own merits.
23. The Council noted Mr X’s log of events, but it said that when its officer visited, she did not witness vehicles blocking the street. The Council said that in any case, as there was no CMP condition it could not enforce any obstruction that may have occurred. Despite having no power to enforce, the case officer continued to try and reach a voluntary solution with the developers to address residents’ concerns. The Council noted Mr X said that a CMP would have ensured vehicle registration numbers were recorded. However, it said this was not usual practice and so would not have been something recorded within a CMP in any event.
24. The Council noted Mr X’s complaint regarding delays. It said its planning enforcement acknowledgement letter advised that it aimed to determine whether or not there is a breach within a 13 week time limit. It also stated in some cases this process can take longer.   The letter also stated the investigating officer would not need to make contact throughout the investigation process. When Mr X reported the breach, complainants could track the progress of the investigation through the Council’s website. However, this had now changed due to the General Data Protection Regulations in May 2018.  The Council accepted that Mr X wanted more regular contact during the investigation process. But it repeated that during this time the case officer was attempting to negotiate an amicable and voluntary resolution.

Analysis

25. The Council has provided evidence that it consulted residents regarding the 2017 plan. I have not found evidence of fault here.
26. The previous plan approved by the planning inspectorate had a CMP. However, when the owner made a new application in 2017, it was for the Council to consider that plan individually on its own merits. The Council was not obliged to attach the previous conditions, although a more restrictive decision than the Planning Inspectorate’s would need to be justified by the Council referring to material planning considerations.
27. The Council has explained why it did not impose a CMP condition on the approved plan in 2017. It has referred to the NPPF 2018 which states that “planning conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.”
28. While I note Mr X says the Council could not refer to the 2018 NPPF guidance given that the decision was taken in 2017, the NPPF 2012 has similar guidance at paragraph 206. This states: “Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.” Therefore, I do not consider that there was fault in the Council’s view that it was not necessary, enforceable, precise or reasonable to impose a CMP condition. As I have not found there is fault in the Council’s decision making, I cannot criticise the merits of the decision as I explain in paragraph 2.
29. The Council investigated Mr X’s reports regarding planning breaches, but did not witness these when it visited. While it could not take action as there was no CMP, it sought to resolve the matter. I have not found fault here.
30. The Council accepts that it did not respond to Mr X’s emails of February and April 2018. It has apologised for this. While I consider the Council should have responded earlier, I do not consider that this was fault or that it caused significant injustice to Mr X.

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Final decision

31. I have not found fault causing injustice and so I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman