Summary: Mr B complained the Council failed to take appropriate action in respect of non-compliance with planning permission for development near to his home. We found no fault by the Council in terms of the substantive planning matters associated with this complaint. However, there was fault in the Council’s communications with Mr B about the matter and in its handling of his complaint. Those faults led to injustice for Mr B, for which a remedy has been agreed.

The complaint

1. The complainant, whom I shall call Mr B, complained the Council has not taken appropriate action in respect of a breach of planning permission for development near to his home. The original planning permission included a condition requiring the provision of a sustainable wetland scheme which has not been provided. The developer used the area for the deposit of construction waste from the redevelopment of the site. As a result of this Mr B does not have the benefit of the open recreational area the approved scheme should have provided.

Back to top

The Ombudsman’s role and powers

2. 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)
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)

Back to top

How I considered this complaint

4. I considered all the information provided by Mr B about his complaint. I made written enquiries of the Council and took account of all the information it provided in response.
5. Mr B and the Council had an opportunity to comment on a draft of this decision. I considered all comments received in response before making my final decision.

Back to top

What I found

Legal and administrative information

Planning

6. The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is required for any development or change of use of land and may be granted by a Local Planning Authority or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
7. Permission is required for development, which includes building, engineering, or other works in, on, over or under land, or the material change in use of any buildings or land.

Approval of details of planning conditions

8. Where necessary for approval of a permission a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application.
9. The applicant must satisfy the condition and apply for it to be discharged by the authority.

Removal or variation of planning conditions application

10. Where planning permission is granted subject to conditions, it is possible to apply for a permission to vary or remove those conditions. The authority will then issue a fresh planning decision.

Planning enforcement

11. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
12. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:

• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.

13. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under s.172 of the Act. It is for the planning authority to decide whether it is expedient to take action.

What happened in this case

The planning matters

14. The Council granted planning permission for a large development of a new residential housing estate. Mr B’s home is next to the development site.
15. An application was made to vary the approved plans, but conditions attached to the original permission were carried over.
16. One of the conditions associated with the planning approval for the development set out that no development should commence until the applicant had submitted a detailed landscape and planting plan. This was to include the planting of locally native trees, shrubs, grasses and wildflowers, the redesign of a sustainable urban drainage system (SuDS) pond and other related works, plus aftercare by means of a whole site Habitat Management Plan to be agreed in writing by the Council and fully implemented during the first full planting season (November to March inclusive) following the commencement of development.
17. The developer submitted documents relating to planting and SuDS which the Council considered satisfactory in terms of what was required in that regard by this condition. I will return to this matter later in this statement.
18. Mr B has raised concerns that the planting which has been done does not reflect that shown on plans. The Council advised him that the plans had been superseded by new ones. Mr B noted that in the revised plan the area of the SuDS pond with which he was particularly concerned now lay outside the ‘red-line’, which is used on plans to mark the development boundary. He therefore queried what permission now applied to that area. The Council said it would check the status of the land with its legal department, and it did so. The records show that the view obtained form the legal department in January 2020 was that anything outside the reduced red line no longer had permission and the Council could not take enforcement action if that permission was not complied with: it said though that it would look further into this matter and advise. The Council advised Mr B it needed time to look into this matter: no timescale was given. Mr B was consistent in asking for an update on this, but none was forthcoming, and the records provided to me by the Council contain no further entry from the legal department. The failure to provide an update to Mr B was fault.
19. The Council now confirms that its position is that no further advice was sought from its legal team on the point, and says that this is because it is working with the developer the implementation of the scheme as agreed through the plans on the application for discharge of the relevant condition, referred to at paragraph 16 and 17 above.
20. There have been numerous subsequent applications to vary the planning consents associated with this large development. Some aspects of the original scheme were implemented, and some were changed through such applications. Regarding the red line not encompassing the SuDS area in revised plans, the Council says this is because those applications were dealing with site specific issues (such landscaping and highway and footpath surface materials). However, the Council accepts that while this was its practice at that time, it is confusing for the public, and it has therefore altered its practice so that applications for variation of condition retain the same red line as the original consent. In respect of this particular development site the Council has confirmed the SuDS area remains enforceable. The Council also confirms that the developer agrees that the SuDS area is to be completed in accordance with the plans approved under the discharge of conditions application.
21. Mr B also raised concerns about earth ‘mounds’ raised on the site, using construction waste. The Council’s records show the County Archaeologist also raised this issue with planning, querying whether these were unauthorised works. The Council’s view is that mounds are not in breach of planning consent as the development is still underway with parts of the development yet to be implemented. It notes that it is common for materials and earth to be stored at a development site whilst construction is in progress. The Council has however confirmed that when the development is near completion, it will ask for the mounds to be removed: its understanding is that this will form part of the landscaping implementation.

Action going forward

22. Responding to my enquiries the Council confirmed it had not visited the site recently, partly due to Covid restrictions, but would now be arranging a site visit to get an update on the progress of the landscaping, wetland scheme and the removal of the earth mounds. An enforcement officer will monitor the implementation of the scheme.

Communications and complaint handling

23. Mr B corresponded with the Council about his concerns regarding the development over a lengthy period. The Council did not always provide the responses: for example, in addition to not updating Mr B about the legal position, as referred to in paragraph 18 above, the Council also advised him in November 2019 it would keep him updated about landscaping as this was progressed, but it did not do so. That was fault. Mr B had to chase the Council for updates and responses, and when these were provided, explanations given were often unclear and sometimes appeared contradictory. When dealing with Mr B’s complaint, there was also a delay by the Council in providing its second stage response: this was fault, for which the Council apologised.

Summary analysis

24. It is the case that this development site has been the subject of numerous applications, for planning permission and for variation and discharge of conditions. The recent planning history of the site and the processes associated with that have been complex. Nevertheless, the Council could and should have been clearer in its communications with Mr B about what the various permissions meant in terms of what was happening on site, and it should have responded promptly to his concerns and queries and provided updates when it had said it would do so.
25. As a result of the identified failings in this case, Mr B was put to unnecessary time and trouble seeking to have his queries resolved and to gain a clear understanding of what the finished site should look like, in order to comply with the relevant permissions, and what action the Council will be taking to ensure this is achieved (or, in the event of non-compliance, to consider expediency of enforcement action in respect of any established breaches).

Back to top

Agreed action

26. To remedy the injustice to Mr B, I recommended that within four weeks of the date of the decision on this complaint, the Council:

• Issues Mr B with a formal written apology;
• Pays him £250;
• Provides him with an update, following the site visit referred to at paragraph 22 above, on the outstanding issues of the landscaping and wetland scheme (SuDS pond) and removal of the earth mounds.

27. In addition, I recommended that the Council undertakes to provide Mr B with a further brief update every three months until the development is complete, and the Council is either satisfied that the permissions have been complied with or has determined that enforcement action in respect of any established breaches is not expedient.
28. The Council has agreed to my recommendations.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman