Summary: The Council gave incorrect advice on a planning enforcement matter. This was fault and put the complainant to unnecessary time and trouble. A recommendation for a time and trouble payment is made.

The complaint

1. Mr X complains about the way the Council considered a complaint that a development next to property he owns was not being built in accordance with the approved plans. Mr X says the Council gave him incorrect information and he was forced to seek professional advice, which led the Council to retract its view. However, by this time the developer had continued to build so that an access route to Mr X’s property was omitted. Mr X says he incurred unnecessary costs and the access is not what was originally agreed.

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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)

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How I considered this complaint

4. I have considered information provided by Mr X and the Council including the planning documents and complaint correspondence.
5. I have considered the Ombudsman’s Guidance on Remedies.
6. 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

Factual background

7. The Council approved planning permission for a new housing development on land adjoining properties owned by Mr X. Mr X says he negotiated with the developer that, in exchange for not objecting to the plans, his properties would have an access way through the development to the main road.
8. The access between the new development and Mr X’s properties is shown on the approved plan and noted in the case officer’s report.
9. Mr X complained to the Council in October 2019 that the developer was not building in accordance with the approved plan. In particular, the developer had changed an area in front of one of his properties, that was designated for visitor parking, to a bin storage area and had not put in the agreed access to his properties.
10. The Council’s planning enforcement team advised there was no breach of planning control. It advised the changes were compliant because they were shown in subsequent plans the developer had provided for the discharge of planning conditions.
11. Mr X obtained advice from a Solicitor and Planning Consultant that this advice was incorrect, as the subsequent plans did not override the plan attached to the original planning permission. Only the original plan had permission as deviations from the original plan would need to have been approved as a non-material amendment or by an application for a new permission. Neither applied here. Therefore, the developer was not permitted to site the bin area where the visitors parking was marked as the amenity considerations of bin storage to the front of Mr X’s property had not been considered.
12. Mr X reapproached the Council in June 2020 sharing the advice he had obtained.
13. The Council then agreed the original plan did not include a bin storage area and so no condition for a bin area should have been included. The Council also agreed the discharge of conditions did not override the original approved plan unless there had been an application to vary the plan, which there had not.
14. Mr X’s adviser said that no condition was included in the planning permission requiring the access construction, but it remained part of the approved plan attached to the planning permission. The adviser said this was a matter between Mr X and the developer, not the Council. The Council agreed this was a private land matter.
15. Mr X however told me that when the Council realised its mistake, it contacted the developer and insisted he reinstate the entrance as per the original plan and remove the bin area from in front of Mr X’s property. Mr X says the access and bin area is not built as per the original plan.
16. The Council declined to contribute to Mr X’s expenses as it said Mr X should have come back to the Council between October and June and, had he done so, it would have addressed the error promptly, as happened in June.
17. Mr X says he was put to unnecessary time, trouble and expense and the error meant he had several difficult communications with the developer.

Analysis

18. Planning authorities must take into account material considerations when deciding whether to approve planning applications. Material considerations relate to the use and development of land in the public interest, but not to private considerations for example agreements between neighbours or restricted covenants.
19. Councils can take enforcement action if they find planning rules have been breached. However, Councils do not have to take action just because there has been a breach of planning control. Enforcement action is discretionary.
20. Mr X says he reached agreement with the neighbouring developer about a new access route between the new housing and his properties. This is a private matter between the two neighbours. The Council was entitled to decide not to pursue enforcement action to ensure the access was provided, however I understand the Council has intervened with the developer. If Mr X remains unhappy with the access this would be a private matter between him and the developer.
21. When Mr X shared his expert advice with the Council it accepted fault and apologised. It agreed that the bin store could not be sited in front of Mr X’s property and the developer was advised to revert to the original plan. This lacked sufficient bin storage areas but that is not an injustice to Mr X as the bins have been moved from the front outlook of his property.
22. Our guidance on remedies says we aim to remedy personal injustice when we find fault. We will seek to put the person back in the position they would have been in ‘but for’ the fault. We can recommend a financial remedy for quantifiable expenses, or a symbolic payment to acknowledge the impact of the fault, and for the time and trouble involved in bringing a complaint.
23. Mr X has incurred unnecessary time and trouble resolving the matter with the Council and dealing with the developer. Mr X has however been unable to provide invoices, quotes or receipts for the advice he obtained. I cannot recommend repayment of unquantified expenses. I do consider a symbolic payment is merited because there is no evidence the Council would have changed its view had Mr X not been able to seek very specific advice which challenged the legal view put forward by the Council. Most members of the public would not have had the knowledge to do this and would have accepted the incorrect advice of the Council. I acknowledge when Mr X provided the advice and the matter was considered by the Planning Manager the advice was corrected swiftly.

Agreed action

24. Within four weeks of my final decision, the Council will pay Mr X £250 to acknowledge the impact of the fault on him.

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Final decision

25. I have completed my investigation. The Council gave incorrect advice on a planning enforcement matter. This was fault and put the complainant to unnecessary time and trouble.

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Investigator's decision on behalf of the Ombudsman