Summary: Ms X complains the Council was at fault as it failed to take enforcement action to ensure compliance with planning conditions at the housing development where she lives. We have found no evidence of fault in the way the Council considered these matters.

The complaint

1. The complainant whom I shall refer to as Ms X complains the Council has failed to take enforcement action to ensure compliance with planning conditions at the housing development where she lives. Ms X says the applicant has not implemented the condition needing a travel plan including a bus service. Ms X questions whether the condition was legally viable or enforceable.
2. Ms X says she and other residents have been left isolated from shops and public transport and had the value of their homes affected. Ms X wants the Council to act to ensure the applicant complies with the planning conditions.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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 have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have also viewed the relevant planning applications and documents on the Council’s website.
6. Ms X 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

Planning enforcement

7. Where development does not comply with a planning condition, or takes place without the necessary planning permission, there will be breach of planning control. Most planning enforcement is reactive with councils responding to residents’ reports of possible breaches. Councils should investigate such reports, but they do not have to take enforcement action against every breach they find. Rather, the law gives councils a discretion to act. In exercising discretion, the National Planning Practice Framework Guidance (NPPF) advises councils to “act proportionately in responding to suspected breaches of planning control.”
8. The Council has a Local Planning Enforcement Plan 2016 ( Plan) outlining its approach to enforcement action. This is a discretionary and proportionate approach. It prioritises cases and focuses on whether the impacts are significant and/or irreversible.
9. Breaches of planning permission include a failure to comply with the conditions attached to a planning application. The Council allocates a case to an enforcement officer. It will then investigate and try to resolve matters through dialogue and negotiation. The Council will commence formal action when a breach of planning control unacceptably harms local amenities, cannot be resolved through negotiation, and is considered expedient to do so.
10. The Plan says the commencement of enforcement action will always be commensurate with the breach of planning control to which it relates and not normally be taken to remedy trivial or technical breaches of control. It will not normally be progressed whilst a planning application is being determined by the Council or where a ‘live’ appeal has been submitted to the Planning Inspectorate.
11. It is the responsibility of the applicant to ensure a development is carried out according to the approved plans and any necessary amendments are sought before they take place.

Background to the complaint

12. The Council received a planning application to redevelop an existing sports ground site and include residential properties. The Council refused the application partly because it was contrary to policy with poor accessibility to shops, community facilities, schools, and public transport.
13. The applicant submitted a revised application for the proposal with additional evidence and supporting measures to overcome the Council’s reasons for refusal. This included improving the site’s accessibility with a bus service funded by the developer.
14. The Council considered and approved the application subject to planning conditions. The planning conditions included soft and hard landscaping at the site, tree planting and replacements if they died within five years. It also included a condition for the submission and approval of a travel plan before occupation of the development. The Council required the travel plan to include a travel plan coordinator, a bus service, bike loan scheme, a top up shop, and a walking bus for children to get to school. It also included a footpath across the site with the Council providing a footpath link.
15. The applicant applied to discharge the planning conditions. The Council considered the details for the travel plan were suitable. But did not discharge the condition as there was no implementation date for the bus service.
16. The applicant applied to vary the planning condition to remove the need for the bus service alleging it was not feasible or possible to operate from the site. The Council refused the application. It said the site needed a bus service as part of the planning condition otherwise it would be isolated, unsustainable, and contrary to Council policy. The applicant has submitted a further application to vary the planning condition for the travel plan which the Council is considering.

Ms X’s complaint to the Council

17. Ms X moved into a property on the site and complained to the Council in January 2020. Ms X explained the site was located on a road with a 60-mph speed limit, with no pavements or a pedestrian access freely available to residents to use without third party controls. Ms X said the site had been occupied for 24 months without the travel plan provision being made so residents felt isolated and particularly affected those without their own transport . Ms X wanted the Council to act over five issues. These were pedestrian access, public transport, the adequacy of planting and screening, highways and ‘other issues’.

Issue one – pedestrian access

18. Ms X complained the Council had not made it clear it would only provide a surfaced footpath to the entrance of the land owned by the sports club. Ms X said residents then had to cross a muddy field which was impassable in wet weather. Ms X complained about the time taken to install gates and locks which now needed maintenance. Ms X said the sports club had banned dogs from the sports field due to the actions of some dog owners so preventing others from accessing the amenity. Ms X proposed other footpath options for the site to enable residents to access public transport, shops and to allow dog walking.
19. The Council explained it had fulfilled its obligation to facilitate a public footpath according to the planning permission which allowed residents pedestrian access onto the sports club land. The Council acknowledged Ms X did not consider it was satisfactory to suit the needs of residents due to the sports club’s policies and conditions placed on dogs accessing the site. However, the Council could only control land it owned and had no influence over how the sports club allowed access to its land.
20. The Council noted Ms X’s proposed alternative footpaths but said it had no plans to introduce more paths in the area.

My assessment

21. The documents provided show the Council has carried out its obligation to facilitate and build a footpath at the site. So, I am satisfied there is no evidence of fault by the Council. It is unfortunate residents are unhappy with access to the sports club’s grounds, the condition of the footpath and any rules imposed. But these appear to be matters for residents to raise with the club.

Issue two – the travel plan

22. Ms X raised concerns the applicant had not yet implemented the travel plan and questioned whether it was legally enforceable or viable in the first place. Ms X suggested options for providing a bus service to the site.
23. The Council explained it had refused a planning application to vary the condition to remove a bus service and was discussing this with the applicant. The Council considered the applicant was in breach of the condition and it was being dealt with by the enforcement team.
24. In response to my enquiries, the Council confirmed it considered the condition fully compliant with the local plan and paragraph 55 of the NPPF. This requires conditions to be kept to a minimum, only imposed when necessary, relevant to planning and the development to be permitted. They must be enforceable, precise, and reasonable in all other aspects.
25. In this case the Council considers the condition meets the tests set out in the NFFP as a bus service to link the site with neighbouring shops and services was a casting factor when the Committee decided the planning application . The condition complies with Council policy to improve public transport facilities and prevent the site from being isolated. The Council considers the condition enforceable because if the bus service is not provided the applicant will be in breach of the planning permission . The Council can take appropriate action to secure compliance.
26. The Council has received an application to vary the condition and advised it will not carry out any enforcement action if needed until it has determined the application. This is according to its enforcement plan.

My assessment

27. Ms X questions whether the condition was legally viable or enforceable in the first place. But that is for the Council to decide as local planning authority and it has explained why it considers the conditions are necessary and enforceable.
28. The documents show enforcement officers are dealing with this issue and currently in dialogue with the applicant who has applied again to vary the condition. The Council has placed enforcement action on hold according to its enforcement plan while it considers the planning application. This is a decision the Council is entitled to make. There is no evidence of fault by the Council in the way it has dealt with the possible breach of planning conditions at the site so far. This is because the evidence provided shows it has acted according to its enforcement plan and requirements of the NPPF. This is to investigate, negotiate and keep dialogue with the applicant to try and remedy any breach.
29. Once the current application has been determined it will be for the Council to decide whether any further enforcement action is needed depending on the outcome. This will depend on whether the Council considers there is a breach of planning control and the level of harm being caused.

Issue three – the adequacy of planting/screening of buildings

30. Ms X complained about the adequacy of the planting/screening of the sports club buildings needed as part of the planning conditions. Ms X said although some planting had been done, most trees died in 2018 and the hedging too low to screen the properties from the sports club car park. Ms X requested replacement trees and new hedging planted at a more suitable height to provide screening.
31. The Council advised Ms X enforcement officers would investigate to check compliance with relevant conditions and ensure the landscaping was carried out to an acceptable level. In response to my enquiries the Council confirms the enforcement officers are in dialogue with the applicant and sports club to address the issue and the matter is ongoing.

My assessment

32. The documents show the Council responded to Ms X’s concerns about landscaping and planting at the site. Enforcement officers are discussing the issue with the applicant and sports club to address the matter. There is therefore no evidence of fault by the Council.

Issue four – highway safety concerns

33. Ms X raised concerns about the speed limit on the main road to the site and foliage obscuring the sight lines to the junction. Ms X asked the Council to provide signage to warn drivers of the junction and suggested a scheme to reduce traffic over a nearby brook.
34. The Council explained it had proposals for a local highway safety scheme at a nearby junction including signing and road marking. The Council advised it had reduced part of the speed limit along the main road to 40 mph 12 months ago and this would tie in with the local highway scheme.
35. The Council considered Ms X’s road proposals but did not consider it necessary to introduce a scheme for crossing the brook or works to the junction to the site. Although it would review whether to add extra warning signs to the development as it now served more than just the sports club.
36. The Council confirms it has yet to implement the local highway scheme.

My assessment

37. I do not consider there is evidence of fault by the Council in the way it dealt with Ms X’s concerns about highway safety. This is because the Council responded to Ms X’s concerns. It has reduced the speed limit on the main road, proposes to implement a local highway safety scheme nearby and will consider whether to incorporate some extra warning signs to the site junction.

Issue five – other issues

38. Ms X raised concerns about litter from the sports club, foul, and offensive language from players on the pitches and the need for car parking stewards on busy match days. Ms X complained about commercial signage at the junction to the site blocking site lines to the main road.
39. The Council responded it was not responsible for the day-to-day operations of the club which should be addressed directly with the sports club although the Council would support any representation made. The Council agreed to look at the commercial signage at the site entrance to see if it needed planning permission or any action taken. The Council did not uphold any of Ms X’s complaints.

My assessment

40. There is no evidence of fault by the Council in the way it has dealt with Ms X’s concerns. The Council explained most of the issues are the responsibility of the sports club and it would support her in any representations she wished to make. The Council has agreed to look at the signs at the site entrance to see if it needs to take any action.

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Final decision

41. I am completing my investigation. I have found no evidence of fault by the Council in the way it has dealt with Ms X’s concerns of breaches of planning control at the development she lives.

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Investigator's decision on behalf of the Ombudsman