Summary: Mr X complains the Council has not taken enforcement action about breaches of planning permission and hasn’t responded to other complaints. The Council was not at fault.

The complaint

1. Mr X complains the Council has not dealt properly with circumstances relating to a development of student accommodation near his home because:
• it has not taken action to ensure that occupancy of the flats is single;
• it has not taken action to control street parking by occupants of the development, which was stated would be restricted through tenancy agreements when planning permission was applied for;
• it has not taken action about the development being occupied before being completed, contrary to conditions of the planning permission; and
• it has not dealt with his complaint properly because it has only responded about planning enforcement, and there has been no investigation about noise nuisance, waste volumes or dangerous parking; and
• the development is unsafe.
2. Mr X says he has experienced noise nuisance and dangerous parking as a result of the development being partly occupied since December 2019. He also says the proposed increase in occupancy will make the environment unhealthy for residents and increases the fire hazards and risk of death.

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What I have investigated

3. I have investigated that part of Mr X’s complaint about how the Council dealt with his complaint concerning breaches of planning permission and responding to his complaints. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. 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)
5. We must 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 the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), 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 spoke to Mr X and considered the details of his complaint as well as the Council’s response. I reviewed documents sent by the Council and Mr X.
8. Mr 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 permission

9. Planning permission is required for the development of land. Planning permission may be granted subject to:
• conditions relating to the development and use of land.
• a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.
10. Councils can take enforcement action if they find planning rules have been breached. However, 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)

What happened?

11. In 2015, planning permission was granted for a development near Mr X’s home, subject to conditions. A s106 legal agreement was entered into for the developer to pay a sum of money to the Council.
12. In 2016, further planning permission was granted for material amendments to the planning permission granted in 2015, subject to conditions. An amendment was made to the s106 legal agreement to reflect amendments made to the proposed development
13. In 2017 and 2018, conditions relating to the planning permission were discharged.
14. The development commenced and Mr X complained to the Council.

Analysis

15. The Council can only consider enforcement action against conditions attached to any planning permission that is granted. The development has been built according to the 2016 planning permission. The conditions that are enforceable are therefore those attached to the 2016 planning permission.
16. There were no conditions attached to the planning permission relating to the occupancy level or parking arrangements. These issues cannot therefore be the subject of any enforcement action. This was not fault by the Council.
17. The Council says Mr X’s complaint was made before the development began to be occupied. It says it opened an enforcement case opened but the matters complained about were not considered enforcement matters, so it dealt with them as service complaint and the enforcement case was closed.
18. I have seen copies of the decision notices which show the conditions relating to occupation of the development attached to the 2016 planning permission have been formally discharged.
19. The Council accepts there may be a breach of planning permission now. It says, “Notwithstanding this and whilst there may be a technical breach of planning control now that the accommodation is occupied government guidance suggests it would not be appropriate to take enforcement action where there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area.

In this case it would be considered that there would be no harm in the building being occupied prior to the implementation of the occupancy conditions. Furthermore, those students who have occupied the accommodation have not raised any planning enforcement concerns regarding the implementation of the conditions.”

20. There is no evidence the Council has considered this technical breach of planning permission referred to before responding to my enquiries. This was fault by the Council. There is no injustice caused to Mr X because on the balance of probabilities the Council would be unlikely to take any enforcement action.
21. Mr X’s original complaint was not about the detail of specific existing problems and was framed in reference to additional issues that might be caused in the future through a breach of planning permission.
22. I have seen the material the Council provided to Mr X about parking issues. The Council made a decision not to proceed with a scheme of parking control after a period of public consultation, which Mr X was aware of. This is a merits decision by the Council. This was not fault by the Council.
23. The Council agrees it has received over £20,000 from the developer as part of the s106 legal agreement. This sum should be used for parking and traffic monitoring and/or minor highways works and maintenance thereof and/or traffic regulation orders for local highway improvement measures in Mr X’s road and other streets. The Council must spend this money for these purposes by December 2024. The Council has acted within the terms of the s106 agreement. This was not fault by the Council.
24. The Council invited Mr X to make specific complaints about environmental enforcement in its final complaint response. Mr X has made two such complaints.
25. The Council has responded to issues raised by Mr X appropriately. As Mr X raised environmental issues after and separately to his original complaint, he can complain to the Council again if he is not happy with the outcomes. This was not fault by the Council.

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Final decision

26. I have found the Council was at fault because it did not consider a breach of planning permission. This did not cause Mr X any injustice. I have now completed my investigation.

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Parts of the complaint that I did not investigate

27. I have not investigated that part of Mr X’s complaint about the development being unsafe because the injustice claimed does not relate to Mr X.

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Investigator's decision on behalf of the Ombudsman