Summary: Mrs B complained about the actions of the Council associated with development next to her home. We find there was some fault by the Council. The financial remedy already offered by the Council is appropriate, but we made further recommendations for a formal apology and improved communications, as well as a service improvement. The Council agreed to these recommendations.

The complaint

1. The complainant, whom I shall call Mrs B, complained about the actions of the Council associated with development next to her home. Specifically, she complains the Council:

• Wrongly gave permission for the basement on the site to be increased in size by 50%, contrary to the requirements of the Town & Country Planning Act 1990;
• Wrongly discharged condition 7 of the planning permission without receipt of a required verification report;
• Wrongly discharged condition 11 of the planning permission without approving a retaining wall;
• Failed to require retaining walls following the excavation; and
• Failed to take enforcement action in respect of breaches of planning consent for the development.

2. Mrs B reports that because of these failings her property has been damaged and has lost value; the family has lost amenity as they have been unable to use the front garden of their home; and the amenity of the area has been harmed by the state of the site, which is on the edge of a conservation area. Mrs B reports huge distress and adverse impact on her heath and that of her husband.

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What I have investigated

3. I have investigated the actions of the Council in this matter from August 2019 onwards. Notwithstanding that some more recent actions in respect of enforcement have not been subject to the Council’s complaints procedure, I have included them here in the interests of pragmatism and completeness.

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The Ombudsman’s role and powers

4. 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)
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’. 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)
6. 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

7. I considered all the information provided by Mrs B about her complaint. I made written enquiries of the Council and took account of the information and evidence it provided in response.
8. I have taken account of relevant legislation and guidance, and of the Ombudsman's guidance on remedies.
9. Mrs B and the Council had an opportunity to comment on my draft decision. I considered all comments received in response before making this final decision.

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What I found

Background

10. In 2014 the Council received a planning application for a two-storey house with a basement. The proposed development site was next to Mrs B’s home, and she lodged her objections with the Council. She was particularly concerned about the proposed basement and about contamination of the land. Approval was granted, subject to conditions, in 2015.
11. As work began and progressed on the site, Mrs B raised various concerns and complaints with the Council.
12. In Spring 2019 the Council considered whether there was any breach of planning consent at the site. The developer had excavated a wide area of the site and constructed a retaining wall along the boundary with Mrs B’s property. The Council was satisfied the excavation of the area in excess of the approved dimensions of the basement was acceptable at this point because this would allow working space on either side of the basement wall, which could later be ‘back-filled’. The Council noted that if the walls of the basement were not constructed in accord with the approved plans, that would then be dealt with. The retaining wall along the boundary with Mrs B’s home was deemed to be temporary. The Council concluded there was no breach of planning consent at this time.
13. Work continued on site, with concrete being laid across the excavation. A membrane was also laid, observed both by Council officers and by the approved inspector the developer had employed from the private sector to ensure works on the site complied with the Building Regulations. In light of ongoing concerns and complaints from Mrs B, a further site visit was carried out in July 2019, by Council officers and Members. The Council remained of the view that there was no breach of planning consent.

Events from August 2019 onwards

14. In August 2019 at a site visit the Council observed vertical bars had been inserted into the edge of the concrete. In the same month, the developer provided a certificate of conformity for the membrane. The developer’s building control inspector again observed and photographed the site, and noted that a membrane guarantee certificate had not yet been provided by the relevant contractor. He also noted that temporary steel supports were in place holding up the ground on the side of Mrs B’s home, and that these would be removed after the basement was built.
15. The Council visited the site again the following month, and took measurements which satisfied the Council’s officer that the concrete slab measurements complied with the approved plans, and this included the distances from the boundary to the two closest points with Mrs B’s property. Two further visits were made in October, when no changes were noted.
16. The Council reports that between November 2019 and mid-January 2020 there was little activity on site. The Council’s position remained that there was no breach of planning consent, but it noted that it looked as though the developer might begin to construct walls to the basement other than in accord with the approved plans, and if that happened there would be a breach. In communication with Mrs B the Council set this out, also noting the extended length of time the development of the site was taking. Mrs B provided the Council with photographs to show blocks were being delivered to the site and indicating that this was a likely precursor to the pouring of concrete to form basement walls, which would form a significantly larger basement than that permitted.
17. At the next site visit at the beginning of February 2020, the Council found that the developer was working to drawings produced by his Building Control inspector in 2018, and not plans approved by the Council. The plan being followed showed the basement extending under the proposed garage area. The Council advised the developer to stop work and submit an application for the changes, and it provided an update to Mrs B in respect of this.
18. Liaison with the developer continued, and he confirmed that his intention was to back-fill the void beneath the garage, and build the basement walls in accordance with a plan submitted in 2017 in connection with the application for discharge of a condition relating to details of the proposed basement. That plan, which I shall refer to as Plan X, showed a basement some 21% larger than that approved under the original permission in 2015, but no basement under the garage. I will return to the matter of Plan X and the discharge of this condition later in this statement.
19. In March 2020 the Council met with Mrs B. Discussions included:

• whether the excavation of the area for the basement constituted a breach of planning;
• whilst there was seemingly a clear intention to construct the walls in the position of the polystyrene blocks, as officers had checked that they could easily be dismantled this was not yet a breach of planning (but would be once concrete was poured into them); and
• whether enforcement would be expedient, if the developer constructed the walls in the position shown but then back-filled the void beneath the garage and re-filled the space between the outside basement wall of the garage and the boundary, given that it would ultimately have the same appearance as the permitted scheme.

Mrs B makes a formal complaint

20. On 13 May 2020 Mrs B made a formal complaint to the Council.

• She referred to the discharge of condition in respect of the basement having permitted a 50% increase in its size and added an external wall which should be a retaining wall due to the proximity to her property. She considered the Council should have required a fresh planning application, given the extent of the alterations from what had originally been permitted.
• She referred to the developer having extended the basement even further, so it extended under the full footprint of the house and garage, making it 100% larger than that originally approved.
• She considered the walls formed of steel reinforcing bars and slab-work now formed the external wall of the dwelling and complained that no enforcement action had been taken in respect of this. She reported the walls so close to her property were causing it damage.
• She raised a concern that the Council had not obtained a verification and validation report in respect of site contamination, which she considered was required by condition 7 of the planning approval.
• She noted that in March the Council had said it would seek to serve a notice to tidy the site, and that he required sufficient hoarding to be erected.

The Council’s response at the first stage of the complaints procedure

21. Having twice contacted Mrs B about delay, which was due to officer involvement in business continuity associated with Covid19, the Council issued the first part of its stage 1 complaint response on 19 June 2020.
22. The Council explained how it had concluded there was at this time no breach of planning consent in respect of the walls as currently positioned, as at this time they were not deemed to be permanent structures. As such a breach would only occur when concrete was poured into them, and it would then consider expediency of enforcement action, but at present took the view that this would be unlikely provided the void was back-filled.
23. In respect of other matters, in particular the difference in plans between that approved under the original 2014 application and that submitted for the discharge of condition in 2017; any requirement for retaining walls; the verification report in respect of contamination; and the appearance of the site, the Council indicated it was still investigating and would provide a further response by 29 June.
24. On 29 June the Council provided the remainder of its stage 1 response.
25. Regarding the differences between the originally approved plan from the 2014 application and Plan X submitted with the application to discharge the condition relating to the basement, the Council said this fell, just, within an envelope of modifications that could be agreed under the discharge of condition. It noted though that the officer’s report prepared for the application did not describe the differences between the plans nor set out how the judgment had been arrived at, and it apologised for this.
26. Regarding retaining structures, the Council said details submitted to discharge a condition in respect of retaining structures did not show such a structure alongside Mrs B’s property, and that condition had been discharged before that in respect of the basement (referred to above). It said it would have been appropriate to ask for details of retaining structures to be requested given the changes to the basement, but acknowledged these could not be required. It apologised that this had not been done.
27. In respect of other matters, the Council:

• reiterated what it had said previously in respect of the rod and block walls not constituting a breach of planning consent;
• set out that it would be chasing the developer for a copy of the verification report; and
• said that it had discussed with the developer what was needed in terms of keeping the site tidy, and it would continue to monitor this.

28. Mrs B was dissatisfied with the response she had been given and on 4 July 2020 escalated her complaint to the second and final stage of the Council’s complaints procedure. On 30 July, the Council acknowledged the stage 2 complaint, apologised for delay, and said a response would be provided by 18 August. The Council did not issue the response until 4 September, when it gave further apologies for delay.
29. In respect of the substantive issue of the differences in the basement plans between that approved under the original application of 2014 and Plan X submitted in 2017 for discharge of condition, the Council said it had now taken legal advice and, taking account of case law, it had concluded that the amendment shown to the basement could not be allowed under the discharge of condition and that therefore a fresh application would be required, for a non- material amendment (NMA) or a minor material amendment (MMA). It apologised for the impact of this change of approach on Mrs B and her family. It said it would write to advise the developer accordingly. Also, contrary to the view previously expressed, the Council said that if concrete was poured into the block walls outside the extent of the basement shown on the 2014 plan, then it was highly likely enforcement action would be taken. The larger element of the basement was no longer deemed to be consented.
30. Regarding the contamination of the land, condition 7 on the permission required an investigation and risk assessment of any contamination on the site, with a written report to be submitted to the Council for approval. When an application to discharge this condition was made, the Council was satisfied with what had been provided, including in respect of proposed remediation, and the condition was duly discharged. It was noted that a verification report would be needed subsequently to confirm all the relevant works had been completed and relevant remediation measures put in place, to allow discharge of condition 8. As no verification report had yet been received, the developer would be advised that this should be submitted, considered, and approved before further works were undertaken and if this did not happen enforcement action would be likely.
31. Insofar as the appearance of the site was concerned the Council considered this had improved and the ‘bar’ for the service of a Notice under S215 of the Town and Country Planning Act 1990, requiring the site to be cleaned up because of adverse impact on the amenity of the area, was not met. If the condition of the site deteriorated, the service of such a notice would be reconsidered.

Events after the completion of the Council’s complaints process

32. At the beginning of October, the Council wrote to the developer to set out what was required in terms of the submission of a verification report and proposals for seeking planning consent for an NMA or MMA. Timescales were given, the latest being 23 October, and the developer was advised that if the verification report was not submitted, considered, and approved before further works were undertaken, and particularly before the pouring of concrete for the walls, this would constitute a breach of condition, and would be highly likely to result in formal enforcement action. The Council updated Mrs B accordingly, and said that from November it would contact her monthly with updates.
33. The deadline given to the developer passed, and the Council did not write again to the developer until the beginning of March 2021 when it repeated advice previously given. The verification report was required immediately, and a deadline of 15 March was given for the submission of a timetable for any proposed application for amended planning consent. In addition, based on a site visit in late December the Council said the condition of the site was unacceptable and the developer was required to tidy it and erect hoarding to the boundary, also by 15 March. The letter to the developer had to be re-issued a week later when the Council became aware that he had changed address.
34. There was then sporadic communication with the developer in March, before an application for an NMA was made: this was initially invalid but information to allow validation was subsequently received. The developer then made a further application in late April, which remains invalid. The Council advised Mrs B that given the planning history, any application to be determined will go to Committee for determination if the officer recommendation is for approval.
35. On 9 April 2021 the Council wrote again to the developer setting out that an application for full planning must be received in a valid form by 1 May, or enforcement proceedings would commence, and the site should be hoarded by 10 May 2021 and all building materials stored neatly on site with any rubble etc removed. The full planning application was not valid by 1 May. The Council visited the site on 15 May 2021 and reports were then drafted in respect of enforcement actions.
36. On 26 July 2021 the Council issued enforcement notices, both effective from 31 August 2021. One required tidying of the site and the erection of solid hoarding alongside the public right of way, within a month of that date unless an appeal is made to the Magistrates Court. The second required removal of the retaining wall structure, now deemed as permanent, from alongside the boundary with Mrs B’s property, and the construction of the basement and backfilling of the area between the two, to the level shown on the plans from the 2004 application. The timescale for this is three months unless an appeal is made to the Planning Inspectorate by 31 August.

Analysis

37. The evidence does not support the view that the Council gave permission for a basement to be increased by size by 50%. The extant planning consent is that granted in 2015, which included a basement under the living area of the proposed dwelling only. If development is not in accord with that original plan, the Council will consider enforcement action. However, there was a period in which the Council considered that Plan X for a 21% larger basement had been approved by the discharge of condition. The Council did not properly review its position when challenged by Mrs B in the first instance, only seeking legal advice later when further challenged on the point. The Council has said that its initial view was common practice and supported by Planning Practice Guidance. However, the case law cited when the Council took legal advice which led it to alter its position was not a very recent judgment: it dates from 2002 (Henry Boot Homes v Bassetlaw District Cl EWCA Civ 983; 4 PLR 108). Councils should regularly update their knowledge base on current case law and should be reflecting that in their casework within a reasonable period of a case being decided. That did not happen in this case, and it was fault. As a result of this, Mrs B had to continue to challenge the Council’s position.
38. The evidence does not support the view that the Council wrongly discharged condition 7 of the planning permission without receipt of a required verification report. This is because that condition required a report on a survey in respect of contamination and an assessment of potential risks. The Council was satisfied with what was provided in this regard, and that was properly a matter for it to determine, exercising professional judgment. A further condition attached to the planning consent (condition 8) did require a verification report to be submitted, to show that the remediation scheme had been followed and the effectiveness of measures taken in this regard: that condition has yet to be discharged.
39. The evidence does not support the view that the Council wrongly discharged condition 11 without approving a retaining wall. The details submitted for discharge of that condition showed retaining walls required for the development as approved in 2015. It was not fault for the Council to discharge the condition in March 2016 on that basis. Any other ‘retaining’ walls, either in positions marking an extended basement or along the boundary to Mrs B’s property, were not deemed to be permanent structures at this time. It was not fault for the Council to fail to require retaining walls following the excavation: the appropriate action in respect of any structures on the site which require permission and are not in accord with approved plans is to consider expediency of enforcement action. As noted above, the Council has now issued an enforcement notice.
40. Where it finds a breach of planning control (as defined in S 171A of the Town and Country Planning Act 1990) has occurred, it is for the Council to decide whether it is expedient to take enforcement action. Councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:
    “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)
    So councils are encouraged to have dialogue with developers, and informal action can often achieve a satisfactory outcome.
41. In this case, interaction between the Council and the developer at various stages satisfied it that some action was being taken towards addressing the relevant issues. However, there were periods when action to address the planning issues associated with this site were not progressed in a timely and appropriate manner, in particular in the period between October 2020 after the developer failed to provide what the Council had requested and March 2021 when it began to pursue this again. While the Council has provided some explanation for delays, including resourcing issues and the impact of Covid19 restrictions, such delays were fault, and on balance the Council would have reached its current position in respect of enforcement action sooner had that fault not occurred. As a consequence of the Council’s fault, Mrs B was caused frustration and disappointed expectation, and a loss of faith in the Council.
42. In addition to this fault, there were delays in the Council’s responses to Mrs B’s complaints, which it acknowledged and apologised for. The Council also apologised for lack of clarity in the officer’s report in respect of the discharge of the condition in respect of the basement. There was also fault in a failure to update Mrs B each month as promised, for example no update was provided in December 2020.
43. In correspondence with Mrs B after the completion of the complaints procedure, the Council offered to pay her a total of £600 in recognition of distress and her time and trouble in pursuing the complaint.

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Agreed action

44. Mrs B has referred to serious concerns about impact on the structural stability and safety of her home and on its value, and on the health of her family. While I do not seek to minimise her concerns, these impacts are not in the main attributable to fault by the Council. The financial remedy offered by the Council, as noted above, is an appropriate sum taking account of the impact of the Council’s fault on Mrs B, and the Ombudsman’s guidance on remedies.
45. However, taking account of the history of the development, I recommended that within four weeks of the date of the decision on this complaint the Council:

• Pays Mrs B the £600 offered, if it has not already done so;
• Issues Mrs B with a formal written apology; and
• Assigns a named officer to have oversight of matters going forward, for the avoidance of further delays and to continue to provide monthly updates to Mrs B until outstanding planning issues have been resolved.

46. In addition, I recommended that within three months of the date of the decision on this complaint the Council considers how it will, on an ongoing basis, review case law as appropriate to inform its decision-making.
47. The Council has agreed to my recommendations.

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Final decision

48. I have completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

49. While I have included some historical background, for the reasons set out in paragraph 4 I did not investigate the actions of the Council in respect of this development site prior to August 2019. This is because although Mrs B had concerns and complaints about the site prior to that date, she did not bring her complaint to the Ombudsman until August 2020.

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Investigator's decision on behalf of the Ombudsman