Summary: Mr X complained about the Council’s inadequate investigation and failure to take enforcement action against development near his home. We found no fault in how the Council responded to the breach of planning control reported by Mr X.

The complaint

1. Mr X said the Council failed to enforce a planning condition and related construction management plan when it carried out its own development. Mr X said this was distressing because, as a local planning authority, the Council should set a good example and comply with its planning permissions and enforcement policy. Mr X wanted the Council to take action against the breach of planning control in line with its enforcement policy.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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 Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• considered information on the Council’s website about the development;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared the Council’s response to the complaint with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered the responses received before making a final decision.

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What I found

Background

5. Most development needs planning permission from the relevant council acting as local planning authority. The law provides for councils to grant themselves planning permission for their own developments. Most planning permissions include conditions that control and regulate the development. Where development includes significant building or engineering works, councils may use a condition requiring the developer to provide a construction management plan (CMP). A CMP sets out how the developer will manage the works to minimise their impact on residents. So, for example, a CMP might include measures to manage dust from the site and wheel washing for lorries to prevent mud on local roads. Councils must give their planning and land use reasons for each condition they place on a planning permission.
6. Carrying out development without the necessary planning permission is a breach of planning control as is a failure to comply with a permission and its conditions. Councils should investigate reported breaches, but they do not have to act against every breach they find. Government guidance says councils should act proportionately in responding to suspected breaches. Councils often try, at first, to resolve breaches by negotiation. But, if a council decides to use its enforcement powers, it usually has a choice in how to act.
7. The Council has a Local Enforcement and Site Monitoring Plan (‘the Plan’), which sets out its policy for dealing with breaches of planning control. The Plan reflects the Government’s national enforcement guidance. The Plan provides for a Harm Assessment, which ‘scores’ a breach to decide the priority a case will have. Essentially, the Council will focus on breaches with a high score as they will cause the greatest planning harm. A breach scoring five or under will normally have a negligible impact making enforcement action unnecessary. A breach scoring six or more will normally lead to formal enforcement action unless resolved through negotiation.
8. The Plan includes a protocol for dealing with breaches affecting the Council’s own development. The protocol says if officers do not consider a confirmed breach needs remedial action, they must report the case to the Council’s Development and Regulation Committee.

What happened

9. The Council granted itself planning permission for development involving engineering works. The permission included a condition requiring approval of a CMP before work started on site. The condition said the CMP had to include a commitment not to handle or move soils unless they were in a dry and friable condition. The condition also said the development had to be carried out in line with the approved CMP. The reasons for the condition concerned highway safety (no on street parking of construction vehicles, or materials deposited on roads) and protection of local amenities.
10. The Council, as local planning authority, approved the CMP prepared for the service department (‘the developer’) that was to carry out the development. The CMP said:

“As per the planning condition, there will be no handling or movement of soils unless they are in a dry and friable condition for the duration of the construction period to minimise and mitigate against the disruption to local residents.”

11. Work started on site and continued while COVID-19 restrictions were in place. Mr X contacted the Council and referred to the findings of a ground investigation report (‘the GIR’) for the development site. Mr X said the GIR showed that soils on the site could not be ‘dry’ or ‘friable’ as they had a natural moisture content of more than 20%. So, as work had now started on site, there had been a breach of the condition and CMP to not handle and move wet soils. Mr X asked the Council to take immediate enforcement action.
12. Over the next four weeks, a Council planning enforcement officer (‘the Officer’) investigated Mr X’s report of a breach of planning control. The Officer wrote to Mr X saying COVID-19 restrictions might affect investigation timescales and site visits. The Officer went to the site three times. On two visits, the Officer drove around the area but found no evidence of mud on roads near the site or, viewed from within their car, evidence of wet soils. For the third visit, made after Mr X provided a video, the Officer went on to the site. The Officer’s photographs from the third visit show no standing water and the land looks ‘dry’. While not finding a breach, the Officer completed a harm assessment. The completed assessment showed that, if confirmed, the breach would score three. The Officer found no further action necessary as there was no substantial harm to the public or the environment. However, the Officer contacted the developer for information. The developer replied that dry and friable soils were removed from the site about five weeks earlier.
13. The Officer wrote to Mr X about the enforcement investigation. The Officer said handling and moving dry and friable soils would minimise disruption to residents and prevent mud on roads in line with the aims of the condition and CMP. Immediately before the investigation, there had been extremely hot weather and the Council received reports of dust from the site, which indicated very dry soils. The Officer accepted Mr X’s video showed surface water on the site, which suggested a ‘technical breach’ of the condition and CMP, but site visits found no mud on nearby roads.
14. In the correspondence that followed, Mr X challenged the Council’s view there was a ‘technical’ and not an ‘actual’ breach. He repeated the GIR showed material excavated and removed from the site could not be dry or friable and the Council had to enforce compliance with the condition and CMP. In response, the Council continued to point to the condition reasons and that its enforcement investigation had found no mud on nearby roads to evidence a breach. The Council also told Mr X about the harm assessment. It said, with a score of three, it would not consider enforcement action necessary if there was evidence of a breach. The Council confirmed that as it had not found evidence of a breach, there was no case to present to its Development and Regulation Committee. The Council closed its enforcement investigation.
15. Mr X then complained to the Council. He said it had failed to take enforcement action when the development could not take place without breaching the CMP because the GIR showed the soils were wet. The Council replied, referring to its enforcement investigation and repeating it had no evidence of a breach. The Council also said the GIR was not part of the planning application and its findings used tests carried out over a year before development started on site. The only soils referred to in the GIR were topsoils sitting on the surface of the site at a depth around 0.3 metres. The Council said, while of limited relevance to the planning permission, the GIR supported its finding of there being no available evidence to confirm the site ‘soils’ were not dry and friable.

The Council’s response to the Ombudsman

16. The Council commented further on the ‘technical breach’ it wrote to Mr X about. The Council said Mr X’s video, which lasted one second and had no date or time, seemed to show the site after removal of topsoils. The video also seemed to show standing water on the site, which surface water appeared to rest on the clay material identified in the GIR as existing below the topsoils. Mr X’s video did not show handling and movement of soils although machines on site were probably reprofiling the land. The Council said its reference to a ‘technical breach’, was to the unsubstantiated video evidence. As the Officer had not found a breach on visiting the site, the video alone did not provide sufficient evidence to justify action.
17. The Council also confirmed the topsoils removed from the site before Mr X reported a breach of planning control, were stored and then reused in completing the development.

Consideration

18. My role is to consider whether the Council acted with fault in dealing with Mr X’s report of a breach of planning control on the site near his home. That the Council might have done more and or acted differently does not necessarily mean it acted with fault. And without evidence of fault, I cannot question the Council’s enforcement decision (see paragraph 2).
19. The breach reported by Mr X concerned handling and moving soils when they were not ‘dry and friable’ as required under the approved CMP. The evidence showed the Council investigated the reported breach. Its investigation included site visits and contact with the developer. These steps were in line with both the Plan and those councils would reasonably be expected to take in considering such an alleged breach.
20. The Council’s enforcement investigation led to the developer confirming soil removal took place before Mr X both reported the breach and provided his video recording. I have watched Mr X’s video. The Council’s view, that surface water it shows is sitting on clay material that was below the removed soils, is not without merit or unsustainable. I also recognise the brevity of the video means it does not show handling or movement of material on the site. Publicly available information also confirms the month the developer said soils were removed from the site was the driest such month on record in England.
21. I considered what Mr X said about the GIR. However, the GIR was not part of the planning permission for the development. I therefore see no good grounds for referring to the GIR in reading and interpreting the permission and its conditions.
22. I also considered Mr X’s dissatisfaction with the Council using the lack of mud on roads as evidence there was no breach of planning control. The courts have said a planning condition should be construed with its reason(s) so its purpose and meaning can be properly understood. Here, the Council’s reasons for the CMP condition concerned highway safety (including the deposit of material and wastes on roads) and protection of local amenities. The CMP addressed many construction activities, one of which was handling and moving ‘dry and friable soils’. Mud and other construction waste deposited or spilling on to roads can be a problem when development takes place. I do not therefore share Mr X’s concerns about the Council’s decision making taking into account there was no mud on nearby roads.
23. With hindsight, the Council’s reference to a ‘technical’ breach on the site was not helpful to Mr X. However, I find the Council used the word ‘technical’ while it sought information from the developer to help reach its later enforcement decision.
24. Overall, I was satisfied the steps taken by the Council to respond to Mr X’s report of a breach of planning control were adequate and proportionate. Those steps did not provide the Council with evidence soils on the site had been handled and moved when not dry and friable. I did not therefore find the Council’s enforcement decision, that there was no confirmed breach, was taken with fault.

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Final decision

25. I completed my investigation finding there was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman