Summary: Mrs D complains the Council failed to take enforcement action against a breach of planning control or to respond to her complaint. We have found the Council failed to consider whether to take enforcement action, but this did not cause a significant injustice to Mrs D. Its failure to respond to a complaint caused her time and trouble and distress. The Council has agreed to acknowledge this by making a payment to Mrs D.

The complaint

1. Mrs D complains the Council failed:
• to take action in response to repeated breaches of planning permissions and conditions to construct a pavement outside her home.
• to advise her of the steps they had taken to ensure compliance after each extension to meet the planning condition was granted.
• to enforce construction of a temporary solution to ensure residents' safety
• to respond to her queries and complaint
2. Mrs D says as a result there has been a delay in constructing the pavement since 2016 and she has therefore been unable to leave her home independently since early 2018. Mrs D says the situation has impacted considerably on her physical and emotional health.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 considered the information Mrs D sent, including photographs of the site and the Council’s response to my enquiries.
7. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

8. Most development needs planning permission from the local planning authority. Local highway authorities may ask the planning authority to use planning conditions to control development. In this case the local planning authority is South Somerset District Council (the Council), the highway authority is Somerset County Council.
9. The highway authority can ask that a condition is attached to the planning permission that requires the applicant to enter into a legal agreement with the highway authority before it carries out works on the highway. This is done under section 278 of the Highways Act 1980. Once the agreement is signed the applicant is required to obtain technical approval for the works from the highway authority prior to them commencing.

Planning enforcement

10. If development takes place either without the necessary planning permission or that does not comply with the relevant planning permission, there will be a breach of planning control. The law gives local planning authorities power to take formal enforcement action against breaches of planning control. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice. Failure to comply with a breach of condition notice is an offence that may be tried in the magistrates’ court.
11. Councils should investigate reports of breaches of planning control, but they do not have to act against every breach they find. The Town and Country Planning Act 1990 says a local planning authority may issue an enforcement notice where “it is expedient to issue the notice having regard to the provisions of the development plan and to any other material considerations”. Government guidance says, “Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework 2012, paragraph 207)
12. Councils often first try to deal with breaches informally, through negotiation with the developer/landowner. Negotiations may take time and can result in a planning application. This allows the council to give local people an opportunity to comment on that development and then assess it against planning policies.

What happened

13. Mrs D has physical disabilities. She lives in a flat in a development that had been granted planning permission by the Council.
14. The original scheme in 2006 had included proposals for a new pavement outside the main entrance, but permission for the pavement was refused. In 2016 the developer applied to the Council to vary a condition in relation to conversion of some new units. It then became clear that the residents who lived in the earlier converted parts, including Mrs D, were expecting a pavement to be constructed to provide a safe means of access. The Council therefore asked the developer to provide the pavement and granted consent. The planning permission included a condition that the new pavement should be fully constructed within one year, i.e. by 23 September 2017, or before the first occupation of the new units, whichever was the sooner.
15. The developer was required to make a section 278 agreement with the county council before it could start work on the pavement. I have seen no evidence the developer contacted the county council about this agreement prior to November 2017, when it applied to the Council to extend the deadline for building the pavement to 30 April 2018. The Council approved the application to vary the condition in February 2018. Mrs D says the new units were first occupied in February 2018.
16. A further application to vary the condition was submitted to the Council in May 2018. This was granted by the Council in September 2018 and gave consent to an extension of the deadline for completion of the pavement to 30 November 2018. I have seen no evidence the developer sought a further extension and variation of the condition after December 2018. The Council has accepted there is no evidence it considered whether to take enforcement action after 1 December 2018.
17. The developer and county council signed the section 278 agreement on 30 November 2018. The developer submitted plans for the pavement for approval by from January 2019 to September 2019, when the county council advised a utilities survey was required.
18. Mrs D complained to the Council and to the county council about the delays in constructing the pavement in July 2019. She said there had been repeated breaches of planning permission but no enforcement action had been taken, and she was therefore being discriminated against under the Disability Discrimination Act 1995.
19. Mrs D noted that the lack of a pavement caused a significant difference in levels between the road and the floor of her building, which was difficult to navigate. The step affected her in particular as she was reliant on her mobility scooter and could not leave the building without her husband lifting the scooter, which put him at risk of injury. Mrs D said “As he is my full-time carer, we cannot take the risk of this happening, so I have rarely been able to leave my home during the last 18 months. On the occasions when I do need to go out, I have to travel in the road around parked cars, until I can get to a dropped kerb on the other side of the street.” The developer had installed some temporary concrete and wooden steps, but these were not safe.
20. The Council opened a planning enforcement case but says it cannot now find the case records. The records it has show it was in contact with the county council and developer about the matter and had emailed Mrs D, though the Council no longer had that email as the officer had since left. In response to my draft decision, Mrs D sent a copy of the email. It was sent on 20 August 2019 and says an update would be provided soon. Mrs D says no update or formal response to her complaint was received. The Council also wrote to Mrs D’s MP.
21. Mrs D complained to the Ombudsman in September 2019. We decided to wait until the works had been completed before investigating.
22. Mrs D made a further complaint to the Council’s chief executive on 13 November 2019. She said she had not yet received a response to her complaint and considered one of the acknowledgments she had received to be threatening in tone as it had advised that “should the matter become the subject of a report to the Council's Area Committee [her] communications may be available for public inspection” without having considered her complaint, or advising her of the role of the Area Committee or why her complaint would be referred to them.
23. Mrs D considered it was unacceptable for the Council to say the delay was caused by the county council and to allow the condition to be repeatedly breached, as residents were being put in an unsafe position. She asked for a copy of updates that had been referred to in the Council’s letter to the MP, a response to her complaint, details of the planning enforcement action the Council was taking, and what action it was taking to ensure that temporary measures were put in place to enable residents to leave the building more safely.
24. The Council replied on 9 December 2019. It said it was the developer’s responsibility to install the pavement, following approval from the county council. The developer had indicated works would start in the new year.
25. Mrs D remained dissatisfied as her queries had not been responded to. The Council sent a second complaint response on 23 December 2019. This said approval from the county council had recently been granted. A survey of the below ground utilities was due to be carried out and it was expected the works would be completed by February 2020. The Council said it had powers to issue a Breach of Condition Notice but “there was a defence that the developer had made every reasonable attempt to discharge the condition”. The Council said any temporary measures would also require technical approval from the county council.
26. In February 2020, the developer told the Council “a secondary survey has now been completed which has identified a gas main that is too shallow and which will require diverting.” The works started in April 2020 and the pavement was completed on 8 May 2020.

My findings

27. When a council receives a complaint about a breach of planning control, it has a duty to investigate. If a breach is found, the Council’s next duty is to take a view on whether it is expedient to take formal enforcement action.
28. I have seen no evidence the Council considered whether there had been a breach of planning control prior to July 2019. This is despite the pavement condition being breached in October 2017, May 2018 and December 2018. This was fault, the Council should keep proper records. In response to my draft decision, the Council said it had introduced a new electronic system to manage planning enforcement cases. I welcome this improvement.
29. However, in the first two instances I consider it likely that, even if enforcement cases had been opened in October 2017 and May 2018, no Breach of Condition Notice would have been issued. This is because the developer applied to vary the condition and the Council approved these variations and it would not have been expedient to take enforcement action whilst considering a planning application. I have reviewed these planning applications and the case officer’s reports; there is no fault in the way the Council decided to approve them. Mr D was therefore caused no injustice by enforcement cases not being opened.
30. In December 2018, once the condition was breached, the Council may have considered issuing a formal notice to require the developer to start works on the pavement. The Council has accepted there is no evidence it considered whether to take enforcement action, indeed I have seen no evidence it was taking any action about the breach until July 2019. This is fault. Whilst councils are not required to monitor all development, it had twice extended the deadline for the pavement so was aware of this development and should have investigated the breach and decided whether to take enforcement action.
31. However, I do not consider this fault caused Mrs D a significant injustice. This is because even if the Council had issued a breach of condition notice in December 2018 requiring the developer to build the pavement, the developer would still have had to seek technical approval for its plans from the county council; a process which took at least eight months. In addition, the developer submitted its plans for approval to the county council in January 2019, so a formal notice would not have brought completion of the pavement any earlier.
32. Whilst I appreciate the significant difficulties caused to Mrs D by the pavement not being built, I cannot say these were caused by fault by the Council. It was the developer’s responsibility to progress the agreements, plans and works for the pavement after September 2016.
33. There was fault by the Council when it did not respond to Mrs D’s July 2019 complaint. Its complaint policy says it should have done so within ten working days. An officer contacted her, but the Council did not send a formal response to her complaint. This caused her time and trouble as she had to approach the Ombudsman and then make a further complaint. The Council was unable to advise her about the enforcement action it was taking, as it was taking none, but it did not reply fully to her November 2019 complaint. Mrs D says the whole experience caused her and her husband to feel extremely distressed, frustrated and vulnerable for three years.

Agreed action

34. Within a month of my final decision, the Council has agreed to apologise to Mrs D and pay her £150 to acknowledge the time and trouble and distress she was caused.

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Final decision

35. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman