Summary: There was no fault by the Council in a complaint that it failed to take enforcement action against alleged breaches of planning control at a neighbouring development.

The complaint

1. Mr X says the Council failed to take enforcement action against alleged breaches of planning control at a neighbouring development. Mr X says:
• One of the proposed new houses is bigger than shown on the authorised plans; is in the wrong location; and encroaches on a public right of way.
• The public right of way should be a tarmac path but is only a shingle stone road.
• A garage was built without permission.
• The quality of the building is inadequate.
• The planning documents show the property should have 2 parking spaces.
• The developer put contaminated waste soil under the shingle stone driveway and when it rains it washes on to the footpath and high street.
• The developer raised the level of the garden by over 1 metre which puts pressure on a dwarf wall which is half a metre high in Mr X’s garden and is not a retaining wall and will give way at some point because of pressure from the raised land levels within the development site. The developer put concrete gravel boards on top of the wall and then put 6 feet fence panels on top of the boards.

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The Ombudsman’s role and powers

2. 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)
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 reviewed the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and invited their comments on it. I considered the Council’s comments in reply.

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What I found

5. In the autumn of 2017, the Council received a planning application which proposed the erection of two detached houses comprising a detached two storey house and a detached bungalow.
6. The Council granted planning permission in December 2017. Mr X raised concerns about compliance with planning conditions through his local councillor in 2018.

One of the proposed new houses is bigger than shown on the authorised plans; is in the wrong location; and encroaches on a public right of way.

7. The Council accepted the development was not in accordance with the approved plans. It asked the developer to submit a non-material amendment application and approved the revised plans in June 2018. An enforcement officer checked the dimensions of the house and was satisfied it was in accordance with the approved revised site layout plan.
8. The Council said the site has a ‘claimed’ public right of way but the route is not yet a recognised public right of way. The Council said there was no evidence of encroachment on to the potential public right of way; the development brought the house closer to the path around its north-western corner but the site photographs show it is not on the path.
9. I do not find fault with the approach taken by the Council in terms of enforcement action or its explanation of the status of the claimed public right of way.

The public right of way should be a tarmac path but is only a shingle stone road

10. Mr X says here that a condition of the 2017 planning permission requires the path to be laid with tarmac. But there is no condition that stipulates this.
11. Mr X also complained about the width of the path. He finds it difficult to use the path because he broke his back years ago. He says wheelchair users cannot use the path.
12. The Council said the standard width for a public right of way would be approximately 2 metres but a claimed right of way would not normally be required to meet that width.
13. I do not find fault by the Council’s explanation here. In any case, it is not for the Council to maintain a public right of way or ensure the property owner keeps to statutory requirements. That is a matter for the County Council.

A garage was built without permission

14. Here, the Council says there was permission for a garage. I have looked at the approved drawings which show a garage. I do not find fault with the Council’s response on this issue.

The quality of the building is inadequate

15. The Council’s approach to Mr X’s complaint on this point was to consult with the County Council’s building control team. A surveyor from the building control team visited the site. The surveyor was satisfied the construction complies with building regulations.
16. The Council’s approach was a fair and reasonable means of dealing with the complaint.

The planning documents show the property should have 2 parking spaces

17. When the Council responded to this complaint, the development was still under construction. The Council explained that it conducted site visits and did not observe any contractors breaching the condition.
18. Mr X then said the new property owners drive into the property from the entrance which had been restricted by the condition. He says they park illegally.
19. The condition states ‘there shall be no vehicular or construction vehicle access to the site from…’. The reason being to ‘define the position of access to the site and to protect the amenities and character of the area in accordance with the Selby District Local Plan Policies ENV1 and T2’.
20. A planning enforcement officer visited the site in December 2019. The officer found there was no longer any access to the site from the High Street due to boundary treatments in place at the site. The Council provided photographs of the site. It concluded there is no breach of the condition.
21. I do not find fault by the Council here.

The developer put contaminated waste soil under the shingle stone driveway and when it rains it washes on to the footpath and high street.

22. The Council included a condition (condition 4) that says no development should commence until it received a detailed site investigation report, remedial statement and an unforeseen contamination strategy. The developer provided these documents in January 2018 and the condition was discharged in February 2018.
23. I do not find fault with the Council’s actions.

The developer raised the level of the garden by over 1 metre which puts pressure on a dwarf wall which is half a metre high in Mr X’s garden and is not a retaining wall and will give way at some point because of pressure from the raised land levels within the development site. The developer put concrete gravel boards on top of the wall and then put 6 feet fence panels on top of the boards.

24. The Council’s response to Mr X’s complaint on this point stated boundary treatments and land levels were assessed during a minor amendment application in 2018. It said the application found that boundary treatments and land levels were as permitted by the previous applications.
25. The officer report on the application did take account of these matters. The developer proposed to change the orientation of one of the plots. The officer acknowledged the requirement for a boundary treatment by condition and that the finished floor levels should remain as set out in the previously approved plans. The officer said the floor levels had been checked and did not vary from the existing consent.
26. The Council says a condition requires the rear boundary fence to the same plot should be fitted with a 300mm height trellis prior to the occupation of the plot with the retention of the treatment at all times. It will now visit the site to check compliance with the condition.
27. I do not find fault by the Council here.

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Final decision

28. I closed this complaint because there was no fault by the Council in the matters raised here by Mr X.

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Investigator's decision on behalf of the Ombudsman