Summary: There was no fault by the Council in a complaint that alleged it failed to recognise and implement the recommendations of the Planning Inspector and failed to take formal enforcement action following breaches of planning conditions by a developer.

The complaint

1. Mr X complains on his own behalf as well as that of a number of his neighbours.
2. Mr X says the Council:
• Failed to recognise and implement the recommendations of the Planning Inspector;
• Failed to take formal enforcement action following repeated breaches of planning conditions by a developer since construction started in April 2019.

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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. 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

5. I reviewed the complaint and background correspondence provided by Mr X. I considered the details of the planning permissions granted for the subject site. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

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What I found

6. A developer sought outline planning permission for a major development in 2013. The Council did not decide the application within the prescribed period which led the developer to appeal to the Planning Inspectorate. In 2014, the Planning Inspectorate allowed the appeal.
7. The Council proposed certain conditions if the Planning Inspector was inclined to allow the appeal. In deciding the appeal, the Planning Inspector accepted the conditions and included them within its decision.
8. There are two conditions that are relevant to this complaint. Condition 21 states:

“In each phase, no development shall take place until a scheme for surface water drainage, based on sustainable drainage principles and including a programme for implementation and arrangements for management, designed in accordance with the outflow rates set out in plan ref TPIN1017-100B Drainage Strategy – General Arrangement (in CD7.18), and no surface water shall discharge to the public sewer system other than as shown on plan ref TPIN1017-100B. The surface water drainage system shall be constructed in accordance with the approved scheme and programme, and maintained thereafter in accordance with the approved management arrangements.”

9. Condition 22 states:

“In each phase, no development shall take place until a programme for implementation of the foul drainage system shown on plan ref TPIN1017-100B Drainage Strategy – General Arrangement (in CD7.18), and arrangements for its management, have been submitted to and approved by the local planning authority. The foul water drainage system shall be constructed in accordance with plan ref TPIN1017-100B and the approved programme, and maintained thereafter in accordance with the approved management arrangements.”

10. In 2016, the developer submitted a non-material amendment application to amend the wording of conditions 21 and 22. Condition 21 was amended as follows:

“In each phase, no development shall take place until a scheme for surface water drainage, based on sustainable drainage principles and including a programme for implementation and arrangements for management, designed in accordance with the outflow rates set out in plan ref TPIN1017-100B Drainage Strategy – General Arrangement (in CD7.18), or rates subsequently agreed with the local planning authority in consultation with the relevant statutory body; and no surface water shall discharge to the public sewer system other than as shown on plan ref TPIN1017-100B, or any detailed arrangement plan subsequently agreed. The surface water drainage system shall be constructed in accordance with the approved scheme and programme, and maintained thereafter in accordance with the approved management arrangements.”

11. Condition 22 was amended in the following way:

“In each phase, no development shall take place until a programme for implementation of the foul drainage system shown on plan ref TPIN1017-100B Drainage Strategy – General Arrangement (in CD7.18), or any detailed arrangement plan subsequently agreed, and arrangements for its management, have been submitted to and approved by the local planning authority. The foul water drainage system shall be constructed in accordance with plan ref TPIN1017-100B and the approved plan and programme, and maintained thereafter in accordance with the approved management arrangements.”

12. The Council approved the amendments in February 2017.
13. An application for approval of all reserved matters including access, appearance, layout, landscaping and scale was then submitted in February 2017. The Council approved the application in March 2018.
14. A change of developer led to the submission of a new reserved matters application in July 2018. The Council approved the application in November 2018.
15. In September 2019, the developer submitted an application to discharge conditions 21 and 22. The Council contacted Lancashire County Council, which is the Lead Local Flood Authority. That council was not satisfied with the details submitted by the applicant and asked for further information from the applicant before concluding its comments. The application had not been decided by the Council when the complaint was made to this service.

Complaint 1 – failure of the Council to recognise and implement the recommendations of the Planning Inspector

16. Mr X says the Council ignored the recommendations of the Planning Inspector and Lancashire County Council.
17. Mr X says here the flood risk assessment and associated drainage scheme produced under the 2013 planning application identified the need for construction levels to be below existing neighbouring properties. He says other documents submitted at the time in support of the application show the intention to build at levels below existing neighbouring properties. Mr X says these documents were before the public inquiry and the Planning Inspector subsequently agreed planning conditions that explicitly referenced the same drainage scheme.
18. The Council, on the other hand, says the Planning inspector imposed a planning condition requiring details of the levels to be submitted to and approved in writing by it. In its view, the Inspector expected details to be submitted which may not necessarily have been in accordance with the illustrative plans submitted in the outline planning application. The Council notes the Inspector did not specifically direct the land levels should not deviate from the plan. Subsequent details of the land levels were submitted by the applicant and were considered acceptable by the Council.
19. I do not find the Council failed to recognise and implement the recommendations of the Planning Inspector.
20. The conditions of the 2013 do not include one that explicitly deals with land levels. Condition 1 says the details of the access, appearance, landscaping, layout and scale shall be submitted to and approved in writing by the local planning authority before any development begins and the development shall be carried out as approved. The condition also states the details of the reserved matters shall be consistent with illustrative masterplans and proposed access arrangements documents.
21. I also note the Inspector’s decision statement. Paragraphs 98 to 158 of the decision notice set out the Inspector’s judgement on the merits of the application. Although the preceding paragraphs set out the views of various parties on the application, the Inspector did not expressly address the matter of land levels in his comments. The implication is that the Inspector did not consider that issue to be a significant material consideration.
22. I cannot share Mr X’s view that the Inspector recommended the development should be built at levels lower than the existing buildings. The conditions also imposed by the Inspector do not create an obligation on the developer to build at levels lower than existing properties.
23. The land levels were included as part of the reserved matters applications. Whether there has been a breach depends on whether the developer has not built in accordance with the plans of the application being implemented and not with reference to the 2013 application as Mr X asserts.

Complaint 2 – Failure of the Council to take formal enforcement action

24. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
25. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
• The carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
26. There is a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way. 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.
27. In this case, the developer commenced development before discharging a number of the planning conditions including conditions 21 and 22.
28. Mr X says the Council was unwilling to issue any stop notice or temporary order because there was no perceived ‘harm’. He says officers told them ‘as the houses themselves are not being constructed then it is not expedient to take that drastic action’. Mr X says this was disingenuous because a spine road was being constructed that would largely dictate the level of the new houses.
29. When Mr X and others escalated their complaint about a lack of enforcement action, he says the Head of Planning stated ‘the impact on neighbouring properties (drainage and other matters) will be a key part in considering whether the approved levels are appropriate. However, Mr X says groundworks continued unabated in breach of planning conditions.
30. Later, Mr X says the development control manager admitted the developer was not implementing the approved drainage scheme and so are in breach and would need to apply to re-discharge the condition.
31. In its response to the complaint, the Council pointed out the decision on what action it takes is discretionary. It explained government guidance required it to take action proportionate to the breach. It pointed out its officers had asked the developer to cease work pending resolution of the planning enforcement complaint. Any work carried out by the developer beforehand was at its own risk.
32. The developer submitted details of a surface water and foul water drainage scheme to discharge conditions 21 and 22 in September 2019. It is under consideration by the Council.
33. The developer was clearly in breach of the commencement conditions because it started developer before discharging all associated commencement conditions. But this does not mean it was mandatory for the Council to take enforcement action.
34. Enforcement action is discretionary and depends on whether a local planning authority finds it expedient to take action. A party in breach of a condition can also seek to regularise the breach by submitting an application for approval. Local planning authorities usually defer a decision on formal enforcement action until the regularisation application is decided.
35. That is what happened in this case. The Council’s approach does not amount to fault. In terms of the timescale, development commenced in April 2019 and the application to discharge conditions 21 and 22 was submitted in September 2019. I do not find there was unreasonable delay by the Council in getting to that point.
36. The developer can continue development while the Council considers the application. But the developer runs the risk that the Council’s decision is an adverse one and so may incur the costs of undoing the work. This may not be acceptable to Mr X and his neighbours. However, it does not mean there was fault by the Council.

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Final decision

37. I closed this complaint because I did not find fault by the Council in the matters raised here

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Investigator's decision on behalf of the Ombudsman