Summary: Mrs X complained the Council failed to take enforcement action against a developer who breached planning conditions. Mrs X says this caused her an injustice through the developer removing trees on their boundary, building the property closer to theirs than allowed and taller than allowed. Mrs X says the Council’s delays and failure to act have also caused her distress and anxiety. The Ombudsman found fault with the Council failing to follow its enforcement policy. The Council agreed to provide Mrs X with an apology and £300 to reflect this fault and the subsequent distress and anxiety caused.

The complaint

1. Mrs X complained the Council failed to take enforcement action against a developer who breached planning conditions.
2. Mrs X also complained the Council delayed in responding to contacts about breach of planning conditions and her complaints.
3. Mrs X says this caused her an injustice through the developer removing trees on their boundary, building the property closer to theirs than allowed and taller than allowed. Mrs X says the Council’s delays and failure to act have also caused her distress and anxiety.

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What I have investigated

4. I have investigated Mrs X’s complaints about the Council’s enforcement action relating to planning applications granted from February 2019 to the end of 2020.
5. I have not investigated the Council’s action relating to planning applications for which the Council has not made a decision from the start of 2021. I have explained this within the section of this decision titled “Parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. 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)
9. 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

10. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
11. I have also considered the planning applications, the planning officer’s reports and decision notices.
12. Mrs X and the Council provided comments on my draft decision. I considered their comments befor­e making my final decision.

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What I found

The Law

13. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
14. Councils can take enforcement action if they find a developer has breached planning rules. However, councils do not have to take enforcement action just because there has been a breach of planning control.
15. Government guidance says:
16. “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 2012, paragraph 207)
17. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost-effective way of achieving a satisfactory result. The Council should keep a record of any informal action, including a decision not to take further action.
18. Council’s often invite developers to submit retrospective planning applications so the impact of the development can be properly considered.

Council enforcement policy

19. The Council’s enforcement policy says it will usually carry out a site visit within 10 days following a reported breach.
20. For minor breaches, the Council may not take any action at all.
21. Where the Council identifies a breach of planning control it will consider if it is possible that planning permission may be granted by the Council to remedy the breaches. It may ask the developer to make a planning application to regularise the breach which could include sending a warning letter. The Council calls this informal enforcement action.
22. If a planning application cannot resolve the breach and where the Council believes it is expedient to do so, the Council can take formal enforcement action. It will normally only take formal action as a last resort. The Council will consider whether a stop to the works is necessary while it decides on what formal action to take.
23. Where appropriate, the Council will issue an enforcement notice or breach of condition notice to seek compliance. A breach of condition notice requires a developer to ensure compliance with a planning condition within a set timescale. If the developer does not comply with this notice a council may seek prosecution in the Magistrates’ Court.
24. The Council will not provide routine updates to complainants but will provide an update once it has decided or closed the case.

Council’s complaint policy

25. When the council receives a complaint, it will investigate the complaint and respond at Stage 1 within 10 working days.
26. If a person is not happy with the Stage 1 response a person can request a Stage 2 complaint response. The Council says it will respond to all Stage 2 complaints within 20 working days.

What Happened

Events prior to 2019

27. The developer applied for planning application, Application 1, for a four-bed house and detached double garage as well as a double garage for an existing property. The proposed build bordered Mrs X’s land.
28. The Council granted planning application in October 2017.

Events from 2019

29. The developer applied for a second planning application, Application 2. This planning application sought to make alterations to Application 1.
30. The Council granted Application 2 in March 2019 subject to conditions. Within Application 2, the developer provided an Arboricultural report detailing tree and root protection schemes that the developer should carry out.
31. The developer applied for a third planning application for the site, Application 3, which the Council granted in May 2019 subjection to conditions. The Council retained most conditions from Application 2. The relevant conditions to Mrs X’s complaint are:
• Condition 2 – The developer should complete works in line with the approved plans.
• Condition 3 – The developer not to build above slab level until he submits materials to the Council, which the Council approves.
• Condition 4 – The developer shall not commence above slab level until he provides details of all fencing, walling and boundary treatments to the Council, which the Council approves.
• Condition 6 – The developer shall not commence above slab level until he submits a revised Arboricultural report, which the Council approves.
• Condition 7 – The developer shall not commence above slab level until he provides a landscape scheme to the Council, which the Council approves.
• Condition 8 – The developer shall not start development until he provides details of how the development will protect and enhance biodiversity, which the Council approves.
32. Mrs X contacted the Council to advise she was not informed about the planning application and raised concerns about the planning application.
33. The developer submitted details of the materials to be used for the development in August 2019 satisfying Condition 3. The developer also submitted a minor material amendment, Application 4, to bring Condition 2 in line with revised plans for the building. The Council granted Application 4 in September 2019 to revise Condition 2. The Council retained Conditions 4, 6, 7 and 8.
34. Mrs X complained to the Council on 30 October 2019 about the developer not adhering to planning Conditions 4, 6, 7 and 8 attached to Application 4. Mrs X said the developer had not taken any action in line with the Arboricultural report from Application 2. Mrs X also complained the developer was not completing works in line with Condition 2 and was varying from the development plans the Council approved.
35. On 7 November 2019, the Council provided a Stage 1 response confirming with Mrs X the developer had not provided information in line with Conditions 4, 6, 7 and 8. The Council advised it would arrange for its enforcement team to investigate.
36. The Council opened an enforcement case, Enforcement Case 1, about a breach of Conditions 4, 6, 7 and 8 on 11 November 2019. The Council’s enforcement team completed a site visit on 13 November 2019 and confirmed the developer had started development above slab level.
37. The Council’s enforcement team told Mrs X it had completed the site visit and would consider its position before deciding on what enforcement action to take.
38. The Council’s enforcement team sent a letter to the developer advising of the breach of Conditions 4, 6, 7 and 8 on 19 November 2019. The Council decided not to take further action as the developer had submitted a planning application, Application 5, which could resolve the breaches. The enforcement team waited on the Council to decide on Application 5.
39. Mrs X asked the Council for an update in January 2020. The Council advised it was waiting on the outcome of the planning application before continuing with its enforcement investigation.
40. The Council granted planning application for Application 5 on 3 February 2020. Application 5 retained planning Conditions, 4, 6, 7 and 8 as well as Condition 2, with amendments to the plans.
41. The Council’s enforcement team sent a second warning letter to the developer on 28 February 2020 about breaches of planning conditions and potential enforcement action.
42. The developer submitted a new planning application, Application 6. The Council’s enforcement team again put the enforcement case on hold subject to a decision on Application 6.
43. The Council approved Application 6 on 6 April 2020. Application 6 retained the same planning conditions as Application 5. The Council did not take any further enforcement action.
44. Mrs X complained to the Council on 16 September 2020. Mrs X told the Council the developer had not put in place any tree protection in line with the Arboricultural report and had felled two trees to date. Mrs X also complained about removal of boundary hedges and the location of the garage in relation to the boundary.
45. Mrs X chased the Council for a response on 23 September 2020.
46. The Council confirmed with Mrs X it would be issuing a breach of conditions notice to the developer in the next few days. The Council attended the site on 24 September 2020 but discovered work had also commenced on the pre-existing building’s garage. The enforcement team placed the breach of conditions notice on hold and issued a third warning letter allowing the developer and owners 28 days to respond.
47. The Council provided a Stage 1 response to Mrs X’s September 2020 complaint on 6 October 2020. The Council said:
• Because the developer had started work on the garage for the pre-existing property there were now two different owners potentially in breach of conditions. The Council therefore needed to issue warning letters in the first instance.
• The deadline for the developer to respond was 22 October 2020.
• It was still investigating Mrs X’s complaint through its enforcement team.
48. Mrs X responded to the Council’s Stage 1 on 12 October 2020. Mrs X said:
• The complaint had been ongoing since May 2019 and the Council had failed to act.
• The repeated planning application revisions had no bearing on the breach of planning conditions.
49. The Council promised a Stage 2 response by 13 November 2020.
50. The Council visited the site on 23 October 2020 to follow up on the enforcement case. The Council says the intention was to serve the breach of conditions notice in relation to Conditions 4, 6, 7 and 8. The breach of conditions notice would require the developer to provide details within 28 days to rectify the breaches. The Council observed numerous changes to the development compared to the approved plans under Application 6 which would put the developer also in breach of Condition 2. The Council sent up a second enforcement case, Enforcement Case 2, to reflect this potential breach.
51. The Council did not issue the breach of conditions notice on 23 October 2020.
52. The developer submitted a new planning application, Application 7, on 26 October 2020. This planning application sought to discharge Conditions 4, 6, 7 and 8.
53. The Council’s enforcement team noted that submission of this planning application would resolve the breach of conditions notice which would have been issued on 23 October 2020. The Council placed Enforcement Case 1 on hold subject to a decision on the planning application. The Council informed Mrs X of the situation in the complaint.
54. Mrs X complained to the Council on 27 October 2020 that the enforcement case was again on hold. The Council responded to advise about the two enforcement cases it had and what the current situation was.
55. The Council’s enforcement team sent a warning letter to the developer on 28 October 2020 to submit a new planning application to rectify the issues highlighted in Enforcement Case 2.
56. Mrs X complained to the Council on 4 November 2020 and 12 November 2020. Mrs highlighted her concerns about the failure of the developer to adhere to the Arboricultural report, the positioning of the garage, objections to the installation of a fence and the lack of action by the Council in relation to enforcement of the planning conditions.
57. The Council provided its Stage 2 response on 13 November 2020. The Council said:
• It did not undertake a Stage 2 investigation in January 2020 due to the ongoing enforcement investigations.
• The Council’s enforcement team is still investigating Mrs X’s concerns but the cases are on hold while the Council’s decides whether to accept or reject Applications 7 and 8.
• The Council had not issued a breach of planning conditions notice yet.
58. The developer submitted a non-material amendment planning application, Application 8, on 26 November 2020 to seek compliance with Condition 2. The Council’s enforcement team also placed Enforcement Case 2 on hold subject to a decision over Application 8.
59. Mrs X complained to the Ombudsman but has also continued to liaise with the Council in relation to Applications 7 and 8. Applications 7 and 8 are awaiting a decision from the Council at the time of this draft decision.

Analysis

Events from May 2019 to September 2019

60. Mrs X was in contact with the Council from May 2019 about the development. While Mrs X contacted the Council in May 2019, Mrs X did not complain about a breach of conditions at this time. Mrs X complained about the planning application itself and the Council not advising her of the planning application.
61. This aspect of Mrs X’s complaint concerns the Council’s actions from over 12 months ago. Contact in May 2019 also does not relate to the lack of enforcement action from the Council.
62. While the context of this information is important, I do not consider it appropriate to investigate the Council’s actions prior to September 2019 as this concerns an unrelated issue. We cannot investigate this complaint as Mrs X took more than 12 months to bring this to our attention.

Council enforcement action

63. Mrs X’s contacts with the Council from September 2019 are technically more than 12 months prior to Mrs X contacting the Ombudsman. However, as she made related ongoing complaints and any injustice would also be ongoing, I consider it appropriate to investigate the Council’s enforcement action from September 2019.
64. In view of the Council’s planning enforcement policy, I would expect it to carry out a site visit within 10 days of Mrs X’s reports of an alleged breach of planning conditions. I would expect the Council to decide if there was a breach and, if so, whether it would take any action. I cannot say whether the Council’s decision at each stage is right or wrong, but I can consider whether it applied its policy correctly and followed a proper decision-making process.
65. Mrs X complained to the Council on 30 October 2019. The Council managed this complaint through its complaints process rather than enforcement process at the first instance. The Council responded within 10 working days, in line with its complaints policy. The Council passed Mrs X’s complaint to its enforcement team on 8 November 2019. I do not find fault with the Council in the way it handled Mrs X’s first complaint.
66. The Council’s enforcement team attended the site on 13 November 2019. The Council’s enforcement team completed this site visit within 10 working days of receiving the case. The Council noted breaches of planning Conditions 4, 6, 7 and 8 and subsequently sent a warning letter to the developer.
67. The Council took informal enforcement action which warned the developer of non-compliance with the conditions and prompted action to rectify the breaches. The Council acted in line with its policy, I do not find fault.
68. The developer submitted Application 5 in response to the enforcement teams warning. Conditions 4, 6, 7 and 8 all had the potential for compliance through a further planning application as all four conditions required the developer to submit further details or schemes to the Council.
69. Enforcement action for planning conditions is intended to promote compliance and not be punitive. While the developer had already gone beyond slab level, in breach of the conditions, the enforcement team’s decision to place the case on hold waiting on the result of the planning application is in line with this principle. I do not find fault with the Council putting the case on hold.
70. Application 5 did not satisfy Conditions 4, 6, 7 and 8. The enforcement team warned the developer again of breaches planning conditions but put the case on hold due to the developer submitting Application 6. The enforcement team again acted in line with its policy, I do not find fault.
71. Application 6 did not satisfy Conditions 4, 6, 7 or 8. When the Council granted Application 6, the Council’s enforcement team failed to take any action.
72. The Council’ planning enforcement team did not carry out any site visits or continue with either informal or formal action from April 2020 until after Mrs X’s contact in September 2020. The Council has not provided any suitable explanation for not undertaking further site visits or taking further enforcement action during this time. I therefore find the Council at fault because it did not act in line with its planning enforcement policy.
73. The Council’s fault caused Mrs X an injustice through lost opportunity for the Council to take enforcement action for five and a half months between 6 April 2020 and 24 September 2020. This lost opportunity caused Mrs X frustration and anxiety. And, because the Council did not provide clear explanations and decisions for not acting, Mrs X suffered further distress and was put to time and trouble making further complaints to the Council.
74. When Mrs X contacted the Council on 16 September 2020, the Council’s enforcement team completed a site visit within 10 working days. The Council’s enforcement team sent warning letters to the developer and the owner of the garage allowing up to 22 October 2020 to comply.
75. The Council acted in line with is planning enforcement policy. I do not find fault with the Council’s actions.
76. The Council attended the site on 23 October 2020. The Council says it intended to issue a breach of conditions notice for Conditions 4, 6, 7 and 8 on this date in line with formal enforcement action. The Council said it did not do so because it discovered breaches of Condition 2 as well.
77. However, a breach of Condition 2 would have no bearing on a breach of Conditions 4, 6, 7 and 8. This is especially apparent when the Council opened a separate enforcement case for Condition 2. I therefore consider the Council failed to follow its enforcement policy by failing to issue the breach of conditions notice due to a fault in the Council’s decision-making process.
78. While this is fault from the Council, I do not consider this caused Mrs X an injustice. The developer submitted Application 7 on 26 October 2020 which provides details relating to Conditions 4, 6, 7 and 8. The breach of conditions notice required submission of these details to the Council within 28 days. The submission of Application 7 would have satisfied this breach of conditions notice if the information the developer submitted was appropriate.
79. As Application 7 remains outstanding with the Council as a live planning application, I cannot comment on the suitability of the content or potential future decisions by the Council.
80. The Council’s enforcement team sent a warning letter to the developer about the breach of Condition 2 on 28 October 2020. The developer submitted Application 8 on 26 November 2020 to bring Condition 2 in line.
81. Again, I cannot consider ongoing matters and the Council must decide whether to grant Applications 7 and 8.
82. The Council is not at fault in putting both enforcement cases on hold while it decides on Application 7 and 8 as these applications look to directly rectify breaches of planning Conditions 2, 4, 6, 7 and 8. I cannot direct the Council to take further enforcement action or consider ongoing matters.

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Agreed action

83. To remedy the injustice set out above, the Council agreed to carry out the following actions:
84. Within one month:
• Provide Mrs X with an apology and a payment of £300 for the lost opportunity to take enforcement action and subsequent distress, anxiety, time and trouble caused.
85. Within three months:
• Provide training to the planning enforcement team to ensure they do not leave enforcement complaints on hold for longer than necessary and follow the correct decision making.

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Final decision

86. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Parts of the complaint that I did not investigate

87. I did not investigate the Council’s action relating to planning applications ongoing in 2021.
88. The Ombudsman can only decide if there is fault in the way a Council has acted if it has failed to follow its own policies or legislation. The Council is currently considering ongoing planning applications registered in October and November 2020 in line with its planning policies.
89. While I have had consideration of these ongoing planning applications, I cannot decide if the Council has acted correctly within the scope of this complaint. This is because:
• The Ombudsman cannot pre-judge the Council’s decision-making process in relation to a planning application.
• The Council would not have had opportunity to comment on any complaint prior to the Ombudsman’s decision.
90. Because I have not investigated the planning applications due to be decided in 2021, Mrs X has the option to approach the Ombudsman in the future about these matters as a separate complaint.

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Investigator's decision on behalf of the Ombudsman