Summary: Mr D complains the Council incorrectly threatened him with planning enforcement action. The Ombudsman has not found evidence of fault. He has completed the investigation and not upheld the complaint.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council incorrectly threatened him with planning enforcement action in 2019. This resulted in him carrying out unnecessary works to his home and incurring costs.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have spoken to Mr D and considered the information he supplied. I asked the Council questions and examined its response.
5. I shared my draft decision with both parties.

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What I found

What happened

Background

6. In 2016 the Council granted planning permission for works to Mr D’s home. Planning conditions included landscaping and hardscaping requirements including planting of shrubs and that the driveway surface be a permeable material.

Events I have investigated

7. In March 2019, the Council received complaints that Mr D’s home had breached planning conditions including not planting hedging and paving the driveway with non-permeable blocks preventing surface water drainage. The case was assigned to an Officer who visited the site on 29 March. He spoke to Mrs D advising of planning breaches which they needed to remedy by planting and drainage to counter the non-permeable materials used. Two weeks later the Officer visited the site and noted no work had been done to the property.
8. On 26 September, the Council made another site visit and again spoke to Mrs D. The Officer noted that rainwater had not been retained on the driveway further indicating it was made from permeable materials. The Officer advised Mrs D that she needed to comply with the approved plans. Mrs D had another meeting with the Officer on 16 October at the Council. The Council reiterated that works had to be in line with the landscaping and hardscaping schemes it had approved. “Some sort” of drainage was needed to stop the hardstanding driveway area being in breach because the wrong materials (permeable instead of non-permeable) had been used which would cause drainage issues. Alternatively, Mrs D could submit a new planning application to request retention of the current hardstanding without drainage. Mrs D said she would submit an application to retain the front of the property as it was. The Council never received an application from Mrs or Mr D.
9. On 27 February 2020, the Officer spoke to Mrs D by telephone. Mrs D said the hedge work was complete and drainage works were due to start. The Officer told Mrs D to ensure drainage was within the curtilage of the property.
10. On 11 March, the Officer spoke to Mr D. The Council confirmed that he needed to fully comply with planning conditions to resolve the planning control breach or to submit a discharge of details application requesting different landscaping. The Officer also advised Mr D that work which deviated from the approved plans would be assessed to see if it was sufficient and, if not, the breach of planning control would remain. On 19 May the Officer spoke again to the family who explained they had not completed the works but would do soon. The Officer stated there were no extenuating circumstances the Council was aware of and it would consider formal enforcement action and serve a Notice as it had been over a year since the breach was identified. If the works were completed before the issuing of the Notice the Council would not proceed with it. The Officer also emailed Mr D with a copy of the landscaping plan that needed to be adhered to. At the end of May the Officer emailed Mr D again advising a report was being prepared recommending a Breach of Condition Notice.
11. On 1 and 2 June Mr D updated the Officer about delivery of planting and driveway works. On 4 June he also emailed the Council with photographs of drainage works. The Officer spoke to Mr D the next day and explained he would assess the photographs and information provided to the Council. On 16 June, the Officer emailed Mr D. He had received the information supplied by the family. He said the landscaping and hardscaping schemes did not specify the installation of drainage and so the Council could not enforce on the drainage that had been done. However, the Council still needed details of the hardstanding materials used. On 17 June Mr D emailed the Council that materials used for the hard surfacing were in line with the planning requirements but did not provide any supporting papers.
12. It transpired the drainage works carried out by the family were on another resident’s land and not within the boundary of Mr D’s property. On 6 July, the Council sent a formal response to Mr D’s complaint. It said Officers had found the hardstanding was constructed from the wrong materials and it was permeable. This meant the Council requested Mr and Mrs D to consider installing drainage within the boundary of the property to resolve the problems caused by the permeable driveway. In addition, other works had not been carried out during 2019 or the first part of 2020. In August, the Council visited the site and confirmed tree planting work was compliant.
13. The case remains open with the Council because it still requires evidence from Mr D regarding the material used in the hardstanding.

What should have happened

14. The Council considers reports of planning control breaches. When it receives a report, it will open an investigation and assign the case to an Officer. The Officer will carry out an unannounced site visit to assess if there is evidence of a breach. If a breach is found the Officer will notify the property owner and set out how the breach can be resolved and the timeframe for the works to be completed. The resident also has the option of applying for either new planning permission to retain the site as it is or can, in some cases, apply for a discharge of the conditions. If no such applications are made and the Council finds the work is not carried out as requested, it can consider further enforcement action.
15. If a property owner disputes the Council’s view, they need to provide evidence to substantiate their case. The Council will assess that evidence and reassess whether the work is in breach or compliant. If it remains in breach the Council can serve a Breach of Condition Notice.

Was there fault by the Council

16. Mr D says the Council told him, incorrectly, to install drainage. Having considered the evidence, I do not find any significant fault by the Council. I note the email to Mr D on 16 June 2020 failed to explain why drainage had been requested by the Council and could have caused some confusion. However, the Council’s subsequent letter of 6 July clearly sets out why Officers requested Mr D install drainage. Whilst drainage work was not included in the landscaping scheme it was proposed to remedy the breach of planning resulting from using the wrong materials on the hardstanding area. I see no evidence of the Council telling the family it should only install drainage. It explained the alternative option of submitting a new planning application and I see Mrs D understood this and stated she would do so in 2019. The Council acted in line with its procedures. It found a planning breach and set out the next steps for Mr and Mrs D.
17. Mr D also says the Council were wrong to seek enforcement action against him and he has used the correct materials on the driveway. There is no fault by the Council. Officers adhered to procedures and correctly applied the Council’s policies in this case. Site visits evidenced works had not been carried out. The Council could have sought formal enforcement action but instead gave Mr D a reasonable timeframe to carry out the required works or apply for new planning permission. Officers were entitled to issue a formal enforcement Notice had the works not started. In this case no formal Notices were ever issued. I know Mr D disputes the type of material used for the driveway. However, he has not supplied evidence to the Council to show the area is no longer a breach of the planning conditions. It remains open for the Council to pursue Mr D until it is satisfied the landscaping and hardscaping requirements have been met.
18. Mr D disputes what information was given to his family at site visits and meetings. I must consider what contemporaneous evidence there is in order to verify what was said. I cannot simply rely on a person’s recollection of events. In this case the only contemporaneous records I have are from the Council and they show Officers did fully inform Mr D and Mrs D about the works needed and the reasons why.
19. I appreciate that Mr D strongly disagrees with the Council’s decisions. The Ombudsman will not question the merits of such decision which have been taken in the absence of significant fault.

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Final decision

20. I have completed the investigation and not upheld the complaint.

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Investigator's decision on behalf of the Ombudsman