Summary: Mr B says the Council failed to act when his neighbour did not comply with a condition on a planning permission and failed to take enforcement action when his neighbour erected a building without planning permission. There is no fault in the Council’s enforcement actions. The Council failed to ensure the applicant provided a timescale for completion of drainage works when it discharged a condition. An apology is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to act when his neighbour did not comply with a condition imposed on a planning permission; and
• failed to take enforcement action when his neighbour erected a building on the land without planning permission.
2. Mr B says failing to act caused him distress and inconvenience as well as costing him money to install new drainage.

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The Ombudsman’s role and powers

3. 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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and section 34(3))
4. 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

5. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B 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

What should have happened

7. The Planning Inspectorate granted permission for a development on land next to Mr B and imposed several conditions. One condition required the applicant to provide full details of foul and surface water drainage of the site within three months of the date of the decision and for the details to include timetables for implementation.
8. The Council’s enforcement plan sets prioritisation and target response times for investigation of potential breaches of planning control. Where there has been a breach of a planning condition the Council’s target response time is five working days.
9. The Council’s enforcement plan says when it receives complaints it will tell the person who has complained of the Council’s initial findings within 10 working days of the first site inspection. The Council’s enforcement plan also says it will tell the person who has complained of the outcome of the investigation and any further action proposed.
10. The Council’s enforcement plan says if a breach is found to have occurred the Council will need to make a decision about the expediency of taking formal enforcement action. The enforcement plan says the Council will only take enforcement action where it is in the public interest to do so and says serving an enforcement notice is usually a last resort.
11. The Council’s enforcement plan references Government guidance which says where development is considered acceptable on its planning merits or where an application to regularise the situation can be made enforcement action will not normally be in the public interest. It says in those circumstances the person responsible for the breach may be invited to submit a retrospective application to regularise the development. The enforcement plan makes clear it is not an offence to carry out development without first obtaining planning permission. It says it is seldom practical to serve an enforcement notice purely because an application to regularise the unauthorised development is not received.
12. The Council’s enforcement plan says if a retrospective application is invited it will normally allow 28 days for submission of an application. The enforcement plan says the Council may accept a longer period if the application requires more complex plans or reports. The enforcement plan says if an application is not received at the end of the agreed period the Council will make a decision on the expediency of taking enforcement action.

What happened – drainage condition

13. Mr B lives next to a site which is in the greenbelt. In 2016 the Council issued enforcement notices as Mr B’s neighbour had sited a caravan on the land. Mr B’s neighbour put in a planning application to keep the caravan, which the Council refused. Mr B’s neighbour appealed and the Planning Inspectorate granted planning permission in January 2018. The Planning Inspectorate imposed a condition requiring Mr B’s neighbour to provide drainage details and a timetable for implementation.
14. Mr B’s neighbour provided the Council with drainage details in February 2018. The Council approved the drainage details in September 2018.
15. Mr B contacted the Council in April 2020 to tell it his neighbour had not completed the drainage. The Council’s enforcement officer visited the site and did not identify an issue with the pipe Mr B had reported. Mr B was not happy with the Council’s response and put in a complaint. The Council’s enforcement officer visited the site in September 2020. The Council’s enforcement officer was satisfied some drainage works had taken place. The Council’s deputy development manager was due to visit the site in September 2020 to investigate further but had to rearrange due to having to self isolate. The deputy development manager visited the site and Mr B in October 2020. The deputy development manager was satisfied the drainage works were substantially complete. The Council told Mr B it would schedule further site inspections to ensure his neighbour completed the works. The Council was satisfied Mr B’s neighbour had completed the works by December 2020.
16. Mr B was not satisfied the works undertaken were satisfactory though and contacted the Council again in December 2020. The Council agreed to instruct an independent drainage engineer to review the situation on the ground. The Council’s head of planning and the drainage engineer visited in February 2021. The Council was satisfied the drainage arrangements installed by Mr B’s neighbour were satisfactory and told Mr B that.

What happened - outbuilding

17. In June 2020 Mr B reported his neighbour erecting an outbuilding without planning permission. The Council’s enforcement officer visited the site and told Mr B’s neighbour the works required planning permission. The Council told Mr B it had asked his neighbour for a retrospective planning application.
18. The Council received a retrospective planning application in July 2020 which did not include the relevant information or payment. The Council chased the applicant for the information. In November 2020 the Council told Mr B it was still waiting for some outstanding information but did not consider the case warranted enforcement action.
19. The Council received the outstanding information in February 2021 and approved the application in April 2021.

Analysis

20. Mr B says the Council delaying acting when his neighbour failed to comply with a condition imposed on a planning permission. Mr B says the applicant should have complied with the condition within 12 months of the January 2018 permission granted by the Planning Inspectorate. Mr B says the applicant did not comply until February 2021 which has caused water to pool on his property. Mr B says this is a significant risk because his son has a medical condition which means stagnant water is a threat to him. Mr B says he continually contacted the Council every fortnight over a two-year period before the Council acted.
21. Having considered the documentary evidence I have found nothing to suggest the Council knew about the failure to comply with the condition imposed on the permission until Mr B contacted the Council in April 2020. Before that the Council had received proposed drainage details from the applicant and had approved those details. As the Council has no responsibility to monitor the progress of development works it is necessarily reliant on those affected to bring breaches to its attention. As there is no evidence the Council knew of any issues with drainage works on site until April 2020 I have no grounds to criticise it before that date.
22. The exception to that relates to the scheme the Council approved to discharge the drainage condition. The Planning Inspectorate imposed a condition which required the applicant to put in details for drainage to the Council with a timescale for implementation. I am satisfied the Council received and approved the drainage plan put in by the applicant. However, the Council failed to ensure the drainage plan included in it a timescale for completion of the works, as required by condition. Failure to ensure that is fault.
23. I recognise Mr B believes it is the failure to set timescales for completing the works which have resulted in delay. However, as I said earlier, the Council is not responsible for monitoring the implementation of planning permissions. As a result, I could not say if the Council had required the applicant to provide a timescale for completion of the drainage works those drainage works would have been completed within that timescale or before December 2020. I understand Mr B’s frustration though about the Council’s failure to identify the issue with the timescales when approving the plan to discharge the condition. As I cannot say, on the balance of probability, completing the works would have taken place earlier if a timescale had been included I consider an apology to Mr B a satisfactory remedy for this part of the complaint.
24. I am satisfied though the Council progressed the issue about the drainage arrangements once it became aware of the issue in April 2020. I am satisfied the Council acted by visiting the site and liaising with the owner of the site to ensure the drainage details were completed by the end of 2020. As I am satisfied the Council took appropriate action I have no grounds to criticise it, although it would have been good practice to formally update Mr B in writing following site visits.
25. Mr B says he had to install his own drainage works to deal with pooling of water on his land. Mr B believes the Council should refund the cost of those drainage works. However, I have found no evidence of fault in how the Council handled the drainage issue once it became aware the applicant had not completed the works. I therefore cannot make any recommendation for a financial remedy to reflect the costs Mr B incurred. In any event, the Council disputes whether Mr B incurred those costs because of his neighbour failing to complete the drainage arrangements. Instead, the Council’s view is Mr B would have had to pay for those drainage arrangements as part of the works for his own planning permission. This therefore comes down to a matter of liability, which the Ombudsman cannot determine. That is a matter for the courts.
26. Mr B says the Council failed to take enforcement action when his neighbour erected a building on the land without permission. Mr B says although the Council asked for a retrospective planning application in July 2020 his neighbour did not put in the application until February 2021 and the Council failed to take further action. It is clear from the documentary evidence I have seen the Council did not consider it expedient to take enforcement action when there was a delay submitting that application because it considered the development acceptable in planning terms. I cannot criticise the Council for that. Indeed, I note Mr B told the Council’s officer in October 2020 he supported the proposal for retention of the building. So, although there was a delay in the applicant submitting the required documentation I am satisfied this did not cause Mr B any injustice given he supported the application in any event and the Council later approved it.

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Agreed action

27. Within one month of my decision the Council should apologise to Mr B for the distress caused to him when it failed to ensure the applicant provided a timescale for completion of drainage works when it signed off the condition.

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Final decision

28. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman