Summary: Mrs X complained about the Council’s failure to ensure her neighbour’s driveway was built using material acceptable to its planning committee. We should not investigate further as it is unlikely to result in a meaningful outcome for Mrs X.

The complaint

1. Mrs X complains about the Council’s failure to ensure her neighbour’s driveway is built using materials that reduce noise from vehicles passing over it.
2. Mrs X also complains that in 2017, the Council failed to enforce a planning condition and protect her hedge, which was damaged by rubbish and timber placed against it.
3. Mrs X says her amenity is affected by the Council’s failure to act.

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What I have investigated

4. The Council’s decisions relating to matters that have occurred within our 12-month time limit.

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The Ombudsman’s role and powers

5. 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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

6. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

8. I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
9. I gave Mrs X and the Council an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

10. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
12. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
14. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
15. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the council may seek an order to restrain an actual or expected breach of planning control.
16. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Background

Mrs X’s complaint

17. Nearly a decade ago, the land behind Mrs X’s home was subject to a planning application to build two houses. The application was approved by the Council’s planning committee. The site is accessed by a driveway which runs along the boundary at the side of Mrs X’s home.
18. The case officer’s report for the application shows that the Council considered the impact on Mrs X from noise of vehicles passing over the access drive. The Council approved the application subject to conditions, including one that requires details of landscaping features, including a ‘noise attenuation surfacing for the access drive’ to be submitted and approved in writing before any development takes place.
19. The applicant submitted details of a driveway, consisting of a reinforcing plastic mesh that is filled with soil and planted with grass seed. The plans showed the turning head in front of the houses, at the top of the drive, was to have a gravel surface.
20. These plans were approved, and development on one of the plots was completed while the other plot remains unbuilt, as were the access drive and turning head. The owners of the new house then submitted a planning application to extend it. The application details included a new plan for the driveway. This application was approved including a plan showing a block paved driveway, but the surface material for the turning head is not shown.
21. Mrs X complained to the Council about its failure to require the landowners to build the driveway as the planning committee had expected. Mrs X said that the committee had wanted to ensure that no part of the driveway, including the turning head, would be surfaced with gravel. Mrs X says that by approving the planning condition details submitted by the applicant, including a gravel turning head, the Council’s officers have allowed the developer to carry out works the committee intended to control. Mrs X says she has a recording of the meeting, and the views of committee members on this issue are clear.
22. Mrs X also complains the Council failed to take enforcement action in 2017 against the developer when building materials and waste were piled against her hedge. Mrs X says she was compelled to build a fence to protect her hedge.
23. Mrs X said she did not come to us sooner, because she did not know about our service.

The Council’s response

24. The Council accepts that it took too long to deal with Mrs X’s enforcement allegations and apologised for the delay. It noted Mrs X’s disappointment that its officers had approved a gravel turning head but explained that it thought this was acceptable.
25. I spoke to a planning enforcement officer, who said the Council served a Planning Enforcement Notice about the landscaping condition at the end of 2019. The enforcement officer went back to site a few months later and there had been no progress on laying the driveway. The owner explained that they did not want to construct the driveway until the extension had been built, as construction traffic might damage it.
26. The Council acknowledged that it had approved two different plans for the driveway, one for a reinforced mat, planted with grass and gravel turning head, and later under the extension approval, a block paved drive.
27. The Council says it does not believe the recent plan for the extension, which included a block paved drive, supersedes the earlier plan, approved under the planning condition for the original application. This was the plan that included grass and gravel driveway. However, in its view, while the latter would be quieter (as pavers can ‘clink’ together when vehicles move over them) either option would be acceptable in planning terms.

My findings

Late complaints

28. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12-months from when events occurred, or the complainant could have known about them. We have discretion to go back beyond this limit but would need a good reason to do so.
29. We should not investigate late complaints or complaints that relate to matters that occurred long ago, unless:
• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision; and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.
30. Mrs X says she did not know about us three years ago when she had cause to complain about the Council’s failure to take enforcement action to protect her hedge.
31. Not knowing about our service is not a good reason to exercise our discretion to investigate late complaints. We are all subject to laws, whether we know or understand them, and it is not possible for us to know when an individual learned of our existence. The time limits are there to ensure we carry out proportionate investigations on the best evidence available, and memories can fade over time.
32. Also, while it is possible the Council might have acted sooner, any failure to act will not make it responsible for the developer’s actions. Even if we were to investigate and find fault, it is unlikely we would recommend the Council compensate Mrs X for the cost of her fence.
33. For these reasons, I have decided not to investigate those parts of Mrs X’s complaint that relate to events that occurred more than 12 months before she complained to us.

The driveway materials and enforcement action

34. The Council has an open enforcement case and expects to require compliance with the plan approved under the planning condition. This is the plan for a reinforced grass driveway and gravel turning head.
35. Mrs X says the recording she has proves committee members did not want gravel on any part of the driveway.
36. Whenever there is a breach of planning control, the Council must consider what harm is caused to the public by the breach. The Council considers both surface types to be acceptable but has decided to defer action until works on the extension are complete.
37. Before we investigate complaints or continue our investigations, we need evidence to show the individual complainant was caused a significant injustice by the Council’s actions. We rely on the injustice to the complainant to justify the disruptions our investigations inevitably cause to the day-to-day work of council officers and the pressure that is placed on the public purse.
38. I do not think I should investigate Mrs X’s complaint further, and my reasons are as follows:
• The Council’s planning enforcement action is ongoing, and we cannot know the outcome. Enforcement action involving a condition may lead to court action. A landowner can always apply to vary a condition and a refusal would give right to an appeal to the Planning Inspectorate. Also, any administrative decision could be challenged by way of judicial review. Any of these bodies or tribunals could disagree with the Council’s view of what should happen on the site.
• I realise Mrs X feels strongly that there should be no gravel anywhere on the access drive, and one of the options the Council approved included a gravel turning head. I am not persuaded that the existence of a small area of gravel on which cars park and turn will cause a significant injustice that would justify our involvement. Even if we found fault, I think it is unlikely we would be able to recommend a meaningful remedy.

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Final decision

39. I ended my investigation, as it is unlikely to reach a meaningful outcome for Mrs X.

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Parts of the complaint that I did not investigate

40. Matters that occurred before our 12-month time limit.

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Investigator's decision on behalf of the Ombudsman