Summary: Mr X complains that the Council failed to take enforcement action against a breach of a condition by a developer. There was fault by the Council because of unreasonable delay before it concluded its planning enforcement investigation. However, the identified fault did not cause Mr X significant injustice.

The complaint

1. Mr X complains the Council failed to take enforcement action against a breach of a condition by a developer. Mr X wants the Council to apologise for its failings. He also wants the Council to make a contribution towards the costs he and other homeowners incurred in completing the road.

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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’. 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:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), 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 examined the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties on it.

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What I found

Planning law and guidance

5. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
6. 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.
7. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under s187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the Magistrates’ court.
8. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. This states:

“Effective enforcement is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate.’’

9. So, enforcement action is not mandatory but discretionary.
10. Councils have a choice of different enforcement options to secure a satisfactory remedy for a breach of planning control. Not all cases will, therefore, be dealt with in the same way. The options range from no formal action and applying for retrospective planning permission to formal action such as service of a breach of condition notice or an enforcement notice.

Background

11. The Council granted planning permission in 2015 for the construction of three houses. Access to the houses would be through a private drive. A condition of the permission stated, “no building shall be occupied until the access has been constructed in accordance with the approved plans”.
12. Mr X bought one of the houses in May 2017. He noted at the time of purchase that one the final layer of the access road had not been laid. There were potholes and raised ironworks remained. Mr X received assurances from the developer that the road would be completed.
13. Mr X moved into his home in October 2017. He chased the developer to complete the road to no avail.
14. Mr X reported a breach of planning control to the Council in March 2018.
15. There were email exchanges between the Council’s planning enforcement officer and the developer between April and October 2018. The officer asked the developer to provide a plan for completion of the road in October 2018.
16. In February 2019, the Council served a breach of condition notice on the developer. There was a two month compliance period. The Council says its officers continued to negotiate with the developer during this period. The developer told officers that one of the new houses was incomplete and could not be finished during the compliance period. After expiry of the compliance period, the developer continued to assure officers he would complete the road. The Council says its officers were mindful of the need to be reasonable else a prosecution attempt would fail. As they did not want public funds to be wasted on an unsuccessful prosecution, they continued to afford the developer more time.
17. In December 2019, the enforcement team sent instructions to the Council’s legal team to initiate a prosecution of the developer for failure to comply with the notice.
18. In July 2020, the Council’s legal team advised the enforcement team that these types of prosecutions had been put on hold by the courts due to the coronavirus pandemic and so the Council was expected to review its case list in accordance with the Crown Prosecution Service’s prosecution guidance.
19. In light of this advice, the enforcement officer drew up a report. It recommended no further action on the case principally because prosecution would not ensure compliance with the notice. Prosecution was not considered to meet the public interest test in the Crown Prosecutors’ Code. In reaching this conclusion, the report considered the Code for Crown Prosecutors and the National Planning Practice Framework. It set out reasons for the decision.
20. The Council decided to close its enforcement investigation.
21. Mr X says the decision amounts to a damning failure by the Council to enforce its own planning consent. He says the enforcement officer’s report was one sided and biased. Mr X says their case was not presently fairly by an enforcement officer who failed to enforce anything against a recalcitrant developer. Mr X says he and his wife, on the other hand, were subject to enforcement action by the Council which insisted they applied for planning permission to regularise other developments in their home.
22. Mr X says the developer made three separate undertakings to complete the road to the enforcement officer but the enforcement officer still presented a biased report for no further action.
23. Mr X says he and the other homeowners paid £25,000 to complete the road which would have been avoidable had the Council taken enforcement action. Mr X stresses the enforcement officer promised to take enforcement action but then failed to do so.
24. Rather than take enforcement action, Mr X says the Council sent a threatening letter which accused him and other homeowners of breaching the condition. This refers to the Council’s stage one complaint response. An excerpt from the letter states:

“I also understand that notwithstanding the restriction on occupation, the three new homeowners did move in and occupy the houses in breach of the planning regulations. I am afraid that in the eyes of the law, there is an argument that this makes the homeowners complicit in the breach of planning control although it is understood that the builder promised to lay the final surface within a few days of occupation but he has reneged on the promise…. Unfortunately, this means that if the Council were to take any further legal action, it could be argued that technically, this would have to be taken against the homeowners in addition to the developer… the Council does not intend to take such draconian action against the new homeowners.”

Finding

25. Mr X reported the breach to the Council in March 2018 and the Council completed its enforcement investigation and closed the case in July 2020. I do not find there was unreasonable delay by the Council between March 2018 and service of the breach of condition notice in February 2019. It is clear the enforcement officer took the approach of ‘informal action’ in this period in an attempt to persuade the developer to complete the road. The enforcement officer received assurances from the developer that he would complete the road and so, I find, it was reasonable for the officer to continue that approach.
26. After service of the breach of condition notice, the enforcement team then sought legal advice on prosecution in December 2019. There was unreasonable delay by the Council here. The Council could have waited a reasonable amount of time for the developer to comply with the notice. I note the compliance period was two months until April 2019. Afterwards, given the Council’s commitment to ensuring a prosecution would not be affected by unreasonable behaviour or haste, I find it was reasonable for the Council to give the developer a reasonable period of time to comply with the Breach of Condition Notice. A reasonable period of time would be the same length of time given in the Notice itself, that is to say two months.
27. The Council did not seek legal advice on prosecution until December 2019. I find there was unreasonable delay by the Council in this period. There was a further period of time until July 2020 which the Council says was caused primarily by the COVID-19 emergency. I do not find there was unreasonable delay there.
28. And the consequence of the delay? I do not find the delay caused significant injustice to Mr X. The consequence of a prosecution for non-compliance with the breach of condition notice is a fine. So, prosecution would not have led to the outcome Mr X sought which was that the developer complete the road. I do not find Mr X’s belief that enforcement action by the Council would have led the developer to complete the road is correct given the facts of this case and the nature of the Council’s enforcement duty.
29. I do not find Mr X suffered a degree of injustice that warrants further pursuit of this matter by, or a remedy from, the Ombudsman.
30. As to the Council’s decision not to proceed with prosecution, I do not find it was tainted by fault or bias as Mr X alleges. The planning enforcement officer’s report set out the law and government guidance and gave reasons for the recommendation of no further action. I note Mr X disagrees with the officer’s report but it is not for the Ombudsman to find fault by a council because a complainant disagrees with the judgement of its officers.
31. I do not find the Council’s stage one complaint response was threatening or that it inappropriately accused Mr X and other homeowners of causing the problem with completion of the road. The response starkly explained the legal consequence of Mr X and others moving into their homes before the road was completed if the Council was minded to take legal action. It then said the Council would not do so.
32. Mr X considers the enforcement officer made promises to take enforcement action but then failed to do so. I cannot now account for all communication between the enforcement officer and Mr X. He clearly had raised expectations from his contact with the officer. However, the Council served a breach of condition notice on the developer. That was formal enforcement action. So, I cannot share Mr X’s view the officer failed to keep promises he made.

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Final decision

33. There was fault by the Council but this complaint was closed because the identified fault did not cause the complainant an injustice that warrants further pursuit of the complaint.

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Investigator's decision on behalf of the Ombudsman