London Borough of Bromley (19 001 077)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 29 Nov 2019

The Ombudsman's final decision:

Summary: The Council is at fault in how it investigated Mr X’s complaint about a breach of condition at a development site adjacent to his property. The Council’s communication with Mr X was also poor. The faults by the Council caused frustration and put Mr X to avoidable time and trouble which the Council has agreed to remedy by making a payment of £150 to him.

The complaint

  1. Mr X complains that the Council:
      1. wrongly considers that the developer has not breached conditions of planning permission for the development of houses on land adjacent to his property.
      2. failed to take account of his and his expert’s evidence of the breach of conditions
      3. delayed in investigating his complaints about the breaches of condition and in responding to him.

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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. 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. I have:
    • Considered the complaint and the information provided by Mr X;
    • Made enquiries of the Council and considered the information provided;
    • Invited Mr X and the Council to comment on the draft decision.

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What I found

  1. The Council granted planning permission for a housing development on land adjacent to Mr X’s property. The planning permission is subject to a number of conditions. These include conditions providing the development should be carried out in accordance with the approved plans. It also includes the development should be implemented in accordance with the aboricultural report under supervision of an aboricultural specialist.
  2. The arboricultural report set out a number of measures and monitoring the developer should undertake to protect trees on the site and a tree owned by Mr X. This tree is located on the boundary of his property and the development site. The report specified the method for the construction of the foundations in the root protection area of Mr X’s tree subject to confirmation by consulting engineers. The foundations should be traditional strip foundations subject to initial manual dig or pile and beam foundations.
  3. Mr X has provided evidence to show he contacted officer A who was the case officer for the planning application in April 2018. He raised concerns about the planning permission not being implemented in accordance with the approved plans and damage caused by the development to his tree. Officer A addressed some matters but did not address Mr X’s concerns about the tree.
  4. Mr X sent further emails to officer A raising concerns that he had not dealt with his concerns about damage to his tree during excavations. In mid May 2018 officer A advised Mr X he would forward his concerns to officer B, a tree officer.
  5. In early June 2018 Mr X contacted officer B stating the tree protection measures had not been carried out so the roots of the tree had been severed during excavations for the foundations. Officer B did not reply to Mr X but he referred the matter to planning enforcement in mid June 2018. Mr X also made a complaint to planning enforcement at this time. He stated that alternative deep foundations to those specified had been excavated within feet of the tree.
  6. The Council’s records show Officer C, enforcement officer and officer D, tree officer visited the site in early July 2018. The record notes the basic brick work of the buildings had been completed so it was impossible to view the foundations to see the method of construction.
  7. Officer C notified Mr X of the outcome of the planning enforcement investigation. In his letter officer C said there was no breach of planning control as one of the methods for construction the foundations set out in the aboricultural report had been used.
  8. Between July and August 2018 Mr X sent a number of emails to the Council stating he disagreed with its decision that there was no breach of planning control. Mr X also said the Council’s website showed an aboricultural plan showing the building nearest his tree as being cantilevered over the root protection area of the tree. He also said his expert had advised that the tree protection condition had not been met. The Council did not respond to Mr X’s emails.
  9. In late August 2018 Mr X made a complaint to a senior officer. A councillor also contacted the officer on Mr X’s behalf.
  10. Officer E, a senior officer, replied to Mr X’s complaint in January 2019. He apologised for the delay in responding to Mr X’s correspondence. Officer E said that the Council had not found a breach of planning control when it investigated Mr X’s complaint in July 2018. He also said the tree was outside the development site as it was in Mr X’s garden so could not be subject to the Council’s enforcement powers. Officer E advised this was a civil matter between the landowners.
  11. Mr X replied to officer E disagreeing with his position that there was no breach of planning control. He also included photographs of the development showing roots of the tree were severed by excavations in late 2017 and were still exposed in early 2018. Officer E responded and included comments by officer F, tree officer. Officer D noted there was a conflict between the site plan which indicated a cantilevered design and the aboricultural report and that the photographs suggested the foundations were strip foundations. Officer D noted that Mr X’s photographs show precautions were not carried out at the time of the photograph. Officer D also said that the tree was included in the details of tree protection but is not under specific protection under site conditions as it is not on the development site.
  12. Mr X sent further emails to the Council disputing its decision. The Council did not respond so Mr X made a complaint to the Ombudsman.
  13. Mr X considers the developer has breached the conditions as they have not followed the monitoring and other measures set out in the aboricutural report. Mr X considers he had to commission an aboricutural report as a result of the Council’s decision that the developer had not breached the conditions. He has said the report showed the developer had not followed the measures set out in the aboricultural report so had breached the condition. It also showed damage to his tree. Mr X is seeking the costs of £330 incurred in commissioning his report.

My assessment

  1. The Council is at fault in how it investigated Mr X’s complaint that the developer was breaching the conditions of the planning permission.
  2. Mr X first contacted the Council in April 2018 with concerns about the damage to this tree caused by the development but the Council did not refer Mr X to the planning enforcement team at this time. This is fault. Mr X was complaining about damage to his tree which was included in the tree report referred to in the condition. The Council should therefore have either referred Mr X to planning enforcement or referred the matter itself to investigate whether there was a breach of condition. The failure to do so caused a two and half month delay in investigating whether there had been a breach of condition.
  3. The Council did not properly reach its decision that there was no breach of condition at the site in July 2018. The Council decided the foundations had been constructed in accordance with the aboricultural report. But the Council’s records of the site visit note the construction of the foundations could not be seen. There is no record of any further investigations carried out by officers such as questioning the developer about the method used or contacting the approved inspector who carried out the building control inspections for evidence of the method used. So, the Council was not in any position to decide the foundations had been constructed in accordance with the aboricultural report as it did not know the construction method used. This is fault.
  4. Mr X has said his own aboricultural report has shown the developer did not adhere to the measures and monitoring set out in the arboricultural report for the planning permission so breached the condition. It is a developer’s responsibility to comply with the conditions of a planning permission and councils are not required to proactively monitor whether conditions are being complied with. But it is possible the Council should have looked more closely at whether the developer was implementing the development in accordance with the aboricultural report as that was a condition of the planning permission. But I come to no view on whether this is fault and I will not pursue this matter further for the reasons below.
  5. On balance, the faults in the Council’s investigation would not have changed the outcome for Mr X. Councils’ enforcement powers are discretionary and should be used proportionately. The photographs provided by Mr X to the Council show the developer had excavated close to his tree and severed the roots in late 2017. So, any damage had been done at this time. The photographs show the foundations were constructed and largely covered by the time he raised his complaint in April 2018. It is therefore unlikely the Council would have been able to take any effective action even if had not delayed in investigating Mr X’s complaint or if it had properly reached its decision as to whether there was a breach of condition. It would not have been able to take effective action even if it had investigated and concluded the developer was not complying with the aboricultural report. But the faults will have caused significant frustration to Mr X.
  6. Mr X considers the fault in how the Council reached its decision that there had been no breach of condition caused him to commission an aboricultural report. I do not consider it is appropriate to recommend the Council reimburses Mr X for cost of obtaining the report. Mr X could have challenged the Council’s decision without seeking professional advice. Any damage to the tree had been done before Mr X raised concerns with the Council and, as I explain above, the Council could not have taken any effective action with or without Mr X’s report. Furthermore, Mr X was seeking advice on whether his tree had been damaged. It is the developer’s responsibility to implement planning permission without damaging other property.
  7. It is not clear why the approved plans specify a different method of foundation construction to the tree report. This discrepancy should have been identified when the Council determined the planning application. But I will not pursue this matter further as I do not consider any fault will have caused significant injustice to Mr X. As I explain above, it is unlikely the Council would have been able to take effective action.
  8. The Council’s communication with Mr X has been poor and amounts to fault. Officer A did not address his complaint about the tree. Officers did not respond to Mr X’s emails between July and December 2018. The Council also took four months to respond to Mr X’s complaint of August 2018. The Council failed to signpost Mr X to the Ombudsman when it finally responded to his complaint. As a result, Mr X was put to avoidable time and trouble in pursuing his complaint. The Council should remedy this injustice and the frustration caused to Mr X by the faults in how it investigated his complaint about a breach of condition.

Agreed action

  1. The Council will send a written apology and make a payment of £150 to Mr X for the frustration and avoidable time and trouble caused to Mr X by the faults in how it investigated his complaint about breach of condition and by its poor communication with him. The Council should take this action within one month of my final decision.

Final decision

  1. The Council is at fault in how it investigated Mr X’s complaint about a breach of condition at a development site adjacent to his property. The Council’s communication with Mr X was also poor. The Council has agreed to remedy the injustice to Mr X as recommended.

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Investigator's decision on behalf of the Ombudsman

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