London Borough of Merton (19 004 088)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 28 Jan 2020

The Ombudsman's final decision:

Summary: The Ombudsman found fault on Ms B’s complaint about the Council failing to promptly investigate her report of a failure to comply with a planning condition. The Council failed to show it properly considered whether to use its discretionary enforcement power for a failure to provide sound insulation testing. The agreed action remedies the injustice caused. It was not fault for refusing to act on other parts of the condition or her report of building regulation breaches.

The complaint

  1. Ms B complains the Council failed to promptly investigate her report that:
      1. her apartment and the building breach building regulations; and
      2. planning conditions set out in the decision notice for planning consent for the building were not complied with.
  2. As a result, her quality of life is affected because of high levels of noise from the main road and she suffered frustration and inconvenience pursuing the Council about it.

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The Ombudsman’s role and powers

  1. 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)
  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)

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How I considered this complaint

  1. I considered all the information from Ms B, the notes I made of our telephone conversations, and the Council’s response to my enquiry table, a copy of which I sent her. I sent a copy of my draft decision to Ms B and the Council. I considered their responses.

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What I found

  1. Ms B lives in a flat, the building of which was completed in August 2016. The previous owner bought it off-plan. The flat is at the front of the block which faces a busy main road and a 24-hour bus stop. It has large floor to ceiling windows at the front which means the flat becomes too hot in good weather.
  2. In May 2017, Ms B moved in and experienced problems straight away. The main problem was noise from outside the building. She argued the noise levels in the flat exceed those allowed by building regulations. Ms B believes the developer failed to comply both with building regulations and planning conditions about noise insulation and surveys. Ms B asked the Council about it and was told as more than 4 years had passed since works started, it could not investigate. Ms B disputed this as she believes the 4-year period ran from the completion of the building.
  3. Ms B argued the developer failed to comply with a planning condition. The condition was included in consent granted by a planning inspector on the applicant’s appeal. It consists of the following:
  • A sound insulation survey (Part 1): The condition said before works began, a sound insulation survey shall be done by a competent person and a report setting out the proposed sound insulation works will be sent to the Council for its approval. The Council confirmed the developer did not provide any survey or report before starting works;
  • The development cannot be used, and the flats shall not be occupied, until the necessary sound insulation works capable of meeting the standards set out were completed (Part 2); and
  • The Council will require sound insulation testing on completion to show the required standard was met. The sound insulation measures will be permanently kept (Part 3). The developer did not provide evidence of sound insulation testing on completion.
  1. The Council said it investigated Ms B’s claim about the breach of this condition and took legal advice. The legal advice said a breach of condition notice (the notice) would require complete compliance with the condition but, neither are achievable here as the works have started and the flats are occupied. This meant issuing a notice would be pointless. The Council confirmed this condition remains undischarged.
  2. The Council explained the condition is a ‘pre-requisite condition’. This means a sound insulation survey was required for approval before works started. By the time Ms B got in touch with the Council about it, the 4-year period it had within which to take enforcement action had already passed. This is because development work began in 2013.
  3. Ms B also argued the developer failed to comply with building regulations requiring it to:
  • Fit an air vent in the bedroom that is not an acoustic trickle ventilator. This means there is an open hole in the wall through which noise passes; and
  • Ensure the temperature in the flat was at acceptable levels.
  1. The Council explained its building control department was not involved with the works. A private approved inspector carried out this function on behalf of the developer.
  2. The Council accepted it failed to respond to her stage 1 complaint sent in October 2018. When she chased the Council for a response in November, it decided to deal with it under stage 2 of its complaints procedure. It sent its stage 2 response in February 2019.


Building regulations

  1. Building regulations set out the minimum standards for design and construction to ensure the health and safety of people in or about those buildings. Building regulation approval is separate from planning consent. An applicant can obtain approval from a building control body. There are 2 types of building control body. One is the free service provided by a council’s building control department. The other is a private sector approved inspector. An applicant can decide which one to use. The applicant for this development chose to use an approved inspector.
  2. What this means is the Council’s involvement in building control was limited. The approved inspector had to send an Initial Notice to the Council before works started. I have seen a copy of this Notice which told the Council the applicant asked the approved inspector to carry out the building control function.
  3. While the Council has enforcement and prosecution powers, these are only available to it in limited circumstances when an approved inspector is used. These powers are only available if: the approved inspector is unhappy with the works complying with building regulations; the applicant does nothing and fails to comply; the inspector goes on to cancel the Initial Notice; and, no other approved inspector takes on the work.
  4. I have no evidence of these circumstances arising for this development. I have seen a copy of the Completion Certificate issued by the approved inspector in 2017. I found no fault on this complaint as the Council had such limited involvement its enforcement and prosecution powers did not arise.

Planning conditions

  1. Planning conditions allow a Council to keep some control over a development. These can include ‘pre-commencement conditions’ (or condition precedents or pre-requisite conditions), which means details need confirming before an applicant can implement consent.
  2. A breach of planning control includes failing to comply with any condition or limitation to which consent was granted. (section 171A Town and Country Planning Act 1990) The Council has discretion about taking enforcement action when there is a breach of a condition. It considers whether action is appropriate taking account of the development plan and any other material planning considerations.
  3. When considering enforcement action, the Council must consider the National Planning Policy Framework. This states effective enforcement is important to maintain public confidence in the planning system. Enforcement is discretionary and a council should act proportionately when responding to suspected breaches. A council should consider publishing a local enforcement plan to manage enforcement proactively, appropriate to its area. (paragraph 58)
  4. The time limit for taking enforcement action is 4 years from the substantial completion where it is an operational development. (section 171B Town and Country Planning Act 1990)
  5. In response to my enquiries, the Council provided a copy of the legal advice it obtained at the start of the last year. This said enforcement by way of a breach of condition notice would require complete compliance with the condition. The advice noted this was not possible for the survey/report and use requirement because the works are complete, and accommodation is now occupied. Issuing a notice would, therefore, be a pointless exercise.
  6. I make the following findings on this complaint:
      1. This condition contained 3 parts. Part 1 was a condition precedent as it stated the survey and a report should be sent to the Council before the start of works. Neither were sent to the Council for its approval before works began. This breached the condition.
      2. Part 2 was also a condition precedent. It prevented the use and occupation of the building until the necessary sound insulation works were completed. It does not say the developer has to send such evidence to the Council. The Council has no evidence showing the completion of such works.
      3. The legal advice provided said the Council should not take enforcement action for any breach of Part 1 and 2. This was because compliance was unachievable. Both required action before the start of works and occupation of the flats.
      4. I found no fault by the Council relying on the legal advice about Part 1 and 2. The works were completed, and the flats occupied. The Council could achieve no reasonable outcome by taking enforcement action against the developer for breaching these now anyway.
      5. Part 3 was not mentioned in the legal advice. This required sound insulation testing on completion of the works. The legal advice appears to imply the entire condition was unenforceable because, as a whole, it was a condition precedent. It concluded by noting as works were completed, and the flats occupied, any outcome in enforcing the condition was unachievable.
      6. Part 3 was not a condition precedent. It only applied when works were completed. Part 3 does not say who had to do the sound testing but it could reasonably be inferred this was the developer. Nor does it explicitly say the developer had to provide the Council with the evidence of the testing. As far as the Council is aware, no testing was done and so this condition remains undischarged.
      7. While a small point, the Council failed to convincingly explain why enforcement was not an option because of the passing of 4 years since development works started. The Council says development works began in 2013 but gave no specific date. The chronology it provided states Ms B contacted the Council about it in May 2017. The window of opportunity for taking enforcement action may well have been open, although I accept the point about it serving no purpose for Part 1 and 2.
      8. As noted, Part 3 was not a condition precedent as it required action on completion of the development. Completion took place in August 2016. The Council failed to show it considered taking enforcement action about Part 3 as it is still within the 4-year time frame. This means the time limit for taking enforcement action has yet to expire.
      9. I accept the Council had discretion about taking enforcement action but, there is no evidence showing it properly considered whether it needed to act about Part 3. This is fault. I am satisfied this caused Ms B avoidable injustice as this caused her distress which included uncertainty of not knowing whether the outcome might have differed but for the fault, as well as some stress, inconvenience, and frustration pursuing her complaint with the Council.
  7. In response to my draft decision, the Council accepted it should have explained to Ms B in greater detail why enforcement action was not an option for Part 1 and Part 2 of the decision. It also accepted it should have explained why it would take no action on Part 3.
  8. The Council also agreed to contact the developer/freeholder to ask about the sound testing required under the condition. It will provide a copy of the results to Ms B. It also noted as the owner of the flat, Ms B is also responsible for compliance with this condition. What this means is she may technically also be liable for enforcement action that arises. It warned she, along with the developer/freeholder, may also be asked to provide the sound testing.
  9. The Council accepted it failed to respond to her complaint at stage 1 of its complaints process. While fault, I am not satisfied this caused Ms B a significant injustice. This is because it decided to move it on to stage 2. In addition, this investigation looked at her complaint and so remedied any outstanding injustice the fault may have caused her.

Agreed action

  1. I considered our guidance on remedies.
  2. When considering the remedy, I also took account of Ms B’s own actions. For example, when she bought the property, the legal principle of, ‘Caveat emptor’, which means, ‘Let the buyer beware’, applied. Local searches carried out during the conveyancing process when buying a property will show whether any planning consent granted contained conditions. Part of the process involves looking at planning consent and checking whether the property was built according to what was granted.
  3. The Council will, within 4 weeks of the final decision on this complaint, carry out the following:
      1. Send Ms B a written apology for failing to properly consider whether it needed to take enforcement action for the failure to carry out sound testing as required by a planning condition;
      2. Request the developer, or freeholder owner of the building, to carry out the sound testing required under this condition and provide Ms B with a copy of the results;
      3. If this shows a problem with sound insulation not meeting the requirements set out in the condition, the Council will consider what enforcement action may be appropriate; and
      4. Pay Ms B £100 for the distress caused by the fault.

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Final decision

  1. The Ombudsman found fault causing injustice on part of complaint b) and no fault on complaint a) of Ms B’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman

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