The Ombudsman's final decision:
Summary: Ms X complained, on behalf of the residents of 15 properties, the Council failed to enforce against breaches of planning control on a development near their homes. We have discontinued our investigation. The Council took enforcement action in considering a retrospective application from the developer. It is unlikely we would find evidence of significant injustice, caused by fault, to warrant further investigation.
- Ms X complained the Council:
- has not taken sufficient action to enforce against a development which is not in line with planning permission. She says the developer has built closer to fences and hedges of properties on the affected street, removed hedges and a fence they should have kept and built the land up against fences of complainants. However, the Council decided not to take enforcement action.
- presented false information about applications, told lies and has not responded to correspondence within suitable timescales, ignored complaints and tried to cover up failings to avoid its duties.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- The complaint is about issues the residents’ association was aware of more than 12 months before complaining to the Ombudsman. The residents’ association was aware of the right to bring the complaint to the Ombudsman but did not do so, having completed the Council’s internal complaints procedures, until November 2018. There are no good reasons for me to investigate events before November 2017.
- 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’. 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 injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- For this investigation, I:
- considered the information Ms X provided and discussed the complaint with her;
- considered the documents on the Council’s planning portal;
- looked at the relevant law and guidance, including the Town and Country Planning Act 1990; and
- wrote to Ms X and the Council with my draft decision and considered Ms X’s comments.
What I found
- 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.
- We expect councils to consider allegations and decide what, if any, investigation is necessary. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
- Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.
- Councils can ask developers to submit retrospective applications to vary the details of original planning permissions. Doing so gives councils the opportunity to properly consider the deviation from original planning permission. If councils approve retrospective applications, the breaches are ‘regularised’.
- The Planning Inspector approved a planning application in 2013. This allowed houses to be built behind the properties on the street on which some of the complainants live.
- Ms X raised concerns with the Council in May 2016 on behalf of the residents’ association. They highlighted the access driveway to the development was not in line with the approved planning permission. In July 2016, the Council’s Senior Enforcement Officer visited the site and confirmed the development was in breach of planning permission.
- In March 2017 Ms X wrote to the Council. She said it was not enforcing properly and trying to “negotiate a way around this problem”. The developer filed a retrospective application for the new layout at the end of May 2017.
- Ms X and other residents sent several objections. Ms X raised issues on behalf of the residents’ association including:
- Developers had demolished a hedgerow which the planning permission had stated they must keep.
- The Council could not overturn the Planning Inspectorate’s decision.
- The access road was three metres high in some places where it should be 0.5 metres, and four metres closer to the affected properties than it should be.
- The Council had turned a blind eye to planning breaches.
- Instead of serving an enforcement notice, as they believed the Council must do by law, it had instead negotiated with the developer. It had failed to carry out robust enforcement and it should order the developer to dig up the access road and move it to the correct position.
November 2017 onwards
- The Council carried out a site visit and viewed the road from the back gardens of complainants’ properties. At the end of November 2017, the committee met again. An objector spoke and raised several issues. They said the original conditions should be enforced. They said the Council should refuse the application because it was retrospective and the applicant had built the road in the wrong location. The committee discussed further objections that had been received, which did not raise new issues.
- The developer had now agreed to carry out further planting behind the affected properties. A speaker in support of the application said the bank was stable and no neighbouring boundary fences were being used to support it. The site inspection team had decided the section of road that had been realigned with gradient changes was acceptable and lack of boundary hedges would be addressed with new landscaping. The committee discussed there was no reason the Council would not have approved the changes, had the developer filed an application before the works had taken place.
- The Council approved the retrospective application in January 2018. Ms X sent complaints to the Council following this, reiterating the objections the residents had. She told the Council it had a duty to take enforcement action and told it the development was not in line with the more recent approval. She said soil was spilling into residents’ gardens and damaging fences.
- The Council explained planning enforcement action was discretionary and should only be taken where it is expedient to do so. The Council explained it would consider any planning issues raised in Ms X’s most recent letters.
- In June 2018 the Council discharged a condition about the position of a hedge between the development and one of the complainant’s properties.
- Ms X then complained to the Ombudsman in November 2018. Ms X says the Council made mistakes when it considered previous planning applications, some about different sites locally. She says this created a domino effect, with the Council approving further developments it should not have.
- The Ombudsman's powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12 months from when events occurred or the complainant could have known about them. We have discretion to go back beyond this, but would need a good reason to do so. Residents raised breaches with the Council as early as May 2016. The Council decided in July 2016 there was a breach of planning control. The residents could have complained to the Ombudsman earlier, within 12 months of this, if they did not feel the Council was taking suitable enforcement action.
- The residents’ association contacted the Ombudsman in February 2018, but it had not exhausted the Council’s internal complaints process. It then complained to the Ombudsman in November 2018. I have considered events during the 12 months before November 2018, as there is no good reason for me to use my discretion to consider earlier events.
- Ms X raised concerns the Council negotiated with the developer rather than serving a formal enforcement notice. This is in line with the law and guidance.
Ms X says the Council has not enforced against breaches. However, it considered a retrospective application from the developer, considered the objections it received and carried out a site visit. A planning committee made the decision. The planning system allows changes after planning permission is granted. From the evidence I have seen, there is no suggestion further investigation would lead to me finding fault in the Council’s actions from November 2017 onwards.
- In any event, there is also no indication that complainants have experienced significant injustice which warrants further investigation. Some of the complainants do not live in the properties which back onto the development in question, so I am satisfied they have not experienced any personal injustice. For those complainants whose properties do back onto the development, issues relating to damage to property are not due to fault by the Council. These issues should be raised as a private matter between residents and the developer. Other injustice Ms X raises, around privacy due to inadequate screening, is resolved by new screening arrangements. Although the residents do not agree the development is acceptable, there is nothing to suggest I would find the Council at fault through further investigation. Therefore, I have decided to use my power to discontinue my investigation.
- I have discontinued my investigation as there is nothing to indicate I would find evidence of fault or significant injustice.
Investigator's decision on behalf of the Ombudsman