Chiltern District Council (18 008 422)

Category : Planning > Enforcement

Decision : Not upheld

Decision date : 19 Dec 2018

The Ombudsman's final decision:

Summary: Mr X says the Council is at fault because it has failed to take action to enforce a condition attached to planning permission for a development near his home. The Ombudsman does not consider the Council is at fault in how it decided that it would not be expedient to take enforcement action and for this reason he has ended his consideration of this complaint.

The complaint

  1. Mr X says the Council is at fault because it has failed to take action to enforce a condition attached to planning permission granted for a development near his home.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. As part of my investigation I discussed the complaint with Mr X and considered information he provided. I made enquiries of the Council and considered information it provided.

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What I found

  1. 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. 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 2018, paragraph 58)

The Manual for Streets 1 and 2

  1. The Manuals are guidance setting out how those involved in planning, designing and modifying streets can achieve good design. They recognise that straight streets may lead to excessive driving speeds and reduced visibility is associated with reduced speeds. They also advise that the absence of wide visibility splays at private driveways will encourage drivers to emerge more cautiously.
  2. The Manuals also give guidance on how best to calculate visibility splays.

Background

  1. In 2016 Mr X’s neighbour submitted a planning application that sought permission for development which included a new access point. The neighbour withdrew the application after the Highways Authority recommended the Council refuse permission. This was because the proposal did not provide adequate visibility splays from the proposed access point.
  2. In 2017 Mr X’s neighbour submitted a new planning application which would retain the existing access point.
  3. The Council consulted the Highways Authority which recommended the Council grant planning permission subject to a condition ensuring that visibility splays were adequate. The Council did this.
  4. In January 2018 Mr X told the Council the required visibility splays had not been provided.
  5. In April the Council told Mr X it considered the visibility splays provided were adequate and similar to others in the road. It also said the required visibility splays could not be provided as the land required to do this was not in the control of the owner or Highways Authority.
  6. Mr X was unhappy with the Council’s view and continued to pursue the matter. In June the Council carried out a site visit that found the development complied with the condition.
  7. However Mr X said the Council’s response was vague and he requested details of the measurements taken during the site visit. For this reason he complained to the Council through all three stages of its complaints process. The Council concluded that, while the visibility splays were shorter than required, the difference was not so great as to cause significant harm. Therefore, it decided not to take any enforcement action.
  8. Mr X disagreed with the Council’s view. He says a highways consultant he engaged concluded the splays were significantly different and the Council should take enforcement action. He approached the Ombudsman for assistance with this matter.
  9. As part of its response to the Ombudsman’s enquiries the Council revisited the site and measured the splays again. It found they were the same as it had previously measured.

Analysis

  1. It is not for the Ombudsman to substitute his judgement for that of the Council’s officers. Instead he examines the process leading to the Council’s decisions for evidence of fault.
  2. The Council accepted the visibility splays provided do not meet the requirements of the planning condition and so a breach of planning control has occurred. The Council then had to decide if it was expedient to take enforcement action.
  3. The Council has provided information explaining why it does not consider it expedient to take enforcement action. I do not consider there has been any fault in the process that led to its decision. This is because the Council:
  • measured the visibility splays on site;
  • considered information in the relevant guidance;
  • considered if it was possible to achieve the required visibility splays; and
  • took into account the difference between the site access before it approved planning permission and what is currently provided.
  1. I appreciate that Mr X has raised concerns about how officers measured the visibility splays. However, officers remeasured the site and provided photos verifying the measurements it obtained. I recognise there continues to be a discrepancy between the measurements taken by the Council and by the consultant hired by Mr X. Nevertheless both sets of measurements agree that a visibility splay of 59m is not provided and a breach of planning permission has occurred.
  2. When the condition was attached to the planning permission, it was understood larger visibility splays could be achieved within land under the control of the applicant or the Highways Authority. However, it is now known that this is not the case. The only way the larger visibility splay could be achieved is if trees on land not owned by the applicant or the Highways Authority are removed. As the applicant cannot take the action required to achieve compliance with the condition, taking enforcement action against him would not be expedient.
  3. I also note that the access point to the application site has not substantially altered from the previous access arrangements. It is thus likely enforcement action would be open to successful challenge.
  4. Mr X says the Council should enforce the condition so that the development is compliant with advice in the Manuals. I do not agree. The Manuals provide guidance and are not legislation or policy. The Council should have regard to them and explain its reasons for not taking enforcement action, but it is not obliged to ensure development meets the advice given.
  5. The Council has explained that is has considered the information contained in the Manuals. It considers the current access design will encourage drivers to slow down and that a reduction in visibility will encourage drivers to be more cautious. Therefore, it says it would be hard to justify enforcement action on grounds of public safety.
  6. For the above reasons, I am satisfied the Council has had regard to all the relevant factors when deciding it is not expedient to take enforcement action. As I have not found evidence of fault in how the Council has come to that decision, there are no grounds on which I can question the merits of its view.

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Final decision

  1. I have ended my investigation of this complaint as the Council has had regard to all the relevant matters when deciding not take enforcement action.

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Investigator's decision on behalf of the Ombudsman

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