Summary: There was no fault by the Council in a complaint which alleged the Council did not take prompt or proportionate planning enforcement action against a developer following 18 alleged breaches of planning control.

The complaint

1. Mr X says the Council did not take prompt or proportionate planning enforcement action against a developer following 18 alleged breaches of planning control.
2. Mr X says dust from an unauthorised construction site entrance caused breathing problems for all of his family, two of whom have pre-existing medical conditions. Mr X says noise and significant vibration from quarry sized groundworks vehicles made it impossible for residents to sleep during the day.
3. Mr X says inaction by the Council meant he and others had to block the unauthorised access themselves. This led to harassment from the construction workers towards his family and damage to his car. His family were forced to move out of their home because the house and site environment were not safe or suitable. Mr X wants the Council to reimburse the costs he faced for running two homes as well as pay him for his time and disruption.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. 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.

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What I found

7. Local planning authorities have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative areas.
8. There are a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way.
9. Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan.
10. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 58.
11. Paragraph 58 of the National Planning Policy Framework says:

“Effective enforcement action is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate”.

12. In deciding, in each case, what is the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where:
• There is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;
• Development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development;
• In their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed.

Complaint background

13. A resident complained about an unauthorised site access created by a developer at a site close to their home on 6 August 2018. The complaint also involved works affected a protected tree.
14. A planning enforcement complaint involving a protected tree warrants priority action by the Council and so a planning enforcement officer visited the site on the following day.
15. The enforcement officer noted building material close to the protected oak tree and asked the developer to move the material and reinstate protection fencing for the tree.
16. Two days later, the enforcement officer visited the site with the Council’s arboricultural officer. They noted the tree protection was in place but the unauthorised access was still being used.
17. The Council received a new complaint about the unauthorised access on 10 August.
18. The Council wrote to the developer on 13 August to point out breaches of planning control. It asked for a meeting with the developer to discuss a remedy for the breaches.
19. Mr X complained about breaches of planning control to the Council on 14 August.
20. The enforcement officer drove past the site on 16 August and noted a different access point was being used by the developer. He also noticed mud on the road and that visibility splays were not in accordance with the planning permission. The officer made a report to the Highway authority.
21. The enforcement officer made another site visit on 22 August. The officer was accompanied by the aboricultural officer and a planning officer. The enforcement officer noted the unauthorised access had been closed with temporary fencing. The developer said permanent fencing would be put in place shortly. The developer also agreed an action plan to remedy any breaches of planning control. The enforcement officer informed Mr X of the agreed action on the same day.
22. The developer sent an action plan and timescales to the Council on 28 August. The developer asked the Council to visit the site in mid-September to inspect the proposed remedial works.
23. The Council received an email from the local MP on 7 September. The MP said the unauthorised access had been reopened. The enforcement officer visited the site on 11 September. The officer says the turning area within the site had been made good and a footpath was finished. As to the unauthorised site access, the officer noted the temporary fencing had been blown over by wind but remained cable tied.
24. There was an exchange of emails between Mr X and the enforcement officer on 12 and 13 September. Mr X asked the officer for a copy of the developer’s action plan. The officer told him she could not send it to him because it was not for public consultation.
25. On 20 September, the enforcement officer visited the site again. The officer noted remedial works done by the developer but suggested an extension to the tree protection around a tree.
26. The Council was satisfied with the action taken by the developer and so closed the enforcement investigation.
27. Mr X contacted the Council on 25 October. He said the developer had reopened the unauthorised access. As for the tree protection measures, Mr X provided photographs which showed fence posts remained in place but the tree protection was down. The photographs showed a digger within the root protection zone of the tree.
28. The enforcement officer contacted the developer on the same day. The developer told the officer no vehicles were using the access but it was implementing a cycle/pedestrian link between two of the development sites. The enforcement officer told the developer about removal of the tree protection fencing. The developer assured the officer the fence would be erected again along with the tree protection.
29. The developer sent an email to the enforcement officer on 29 October with a photograph showing the fence to close off the unauthorised access was back in place.
30. In terms of a complaint about inaction by the environmental protection team, the Council says Mr X’s wife spoke to an environmental protection officer on three occasions between 10 August and 23 August 2018. The environmental protection officer says she got the impression from Mr X’s wife that they were satisfied the planning enforcement team were dealing with their concerns. The officer points to certain dust control measures being implemented by the developer following intervention by the planning enforcement officer. So, no further action was required by the environmental protection team.
31. The environmental protection officer does not recall saying the developer ‘was a law unto themselves’ as alleged during Mr X’s complaint.

Mr X’s account

32. Mr X says the Council did not take prompt or proportionate action against the developer following 18 breaches of planning permission. The breaches of planning permission relate to a tree line which Mr X says was bulldozed as well as an unauthorised site access directly facing his home.
33. Mr X says the unauthorised access enabled unauthorised construction as the planning permission required the legitimate site access to be operational prior to any construction. As well as being unauthorised, Mr X says the site entrance was not compliant with the Health and Safety Executive’s (HSE) guidance.
34. Mr X says although the developer assured the Council in September permanent fencing would be in place to block off the unauthorised access, their photographs from December 2018 show temporary fencing was still in place at the end of the year.
35. Mr X says the environmental protection office told his wife that the developer was ‘a law unto themselves’. He says the reason why they did not pursue their concerns with the environmental protection team after 23 August 2018 was that the officer told them there was nothing the environmental protection team could do.

Analysis

36. In terms of whether the Council’s planning enforcement investigation was prompt and proportionate, I do not find fault by the Council. I am satisfied the Council reacted promptly to the reports it received of breaches of planning control.
37. As to whether the Council’s actions were proportionate, government guidance is clear that it is for the local planning authority to determine whether it is expedient to take formal action after it establishes a breach of planning control. The Council established a breach of planning control because of use of an unauthorised access. There were a number of paths it could have taken such as informal discussion with the developer; asking the developer to submit a planning application to regularise use of the access; formal enforcement action including service of a breach of condition notice or enforcement notice; or no action at all.
38. The Council chose to pursue informal action with the developer to remedy the breaches. Given the developer’s seeming co-operation the Council decided the informal action was sufficient to address the breach of planning control involving the unauthorised access.
39. It is not for this service to now decide on which one of the options open to the Council was the correct one. But given the number of site visits that took place in this case and the contacts with the developer, I am satisfied the Council properly considered its options and chose the one it considered proportionate to deal with the breach of planning control.
40. As to the alleged comment of the environmental protection officer, I do not consider this investigation can resolve the conflict of evidence between the officer’s own recollection of the conversation with Mr X’s wife and that of Mr X’s wife. There is no independent means of now establishing what was said during the conversation.
41. Similarly, I cannot now determine whether Mr X was put off making a complaint to the environmental protection team by the officer. Not being privy to the conversations, and having no independent corroboration of what was said, I cannot now conclude the environmental protection officer inappropriately told Mr X or his wife that there was nothing the team could do if they chose to make a complaint.

Final decision

42. I closed this complaint because I did not find fault by the Council.

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Investigator's decision on behalf of the Ombudsman