Summary: Mr B complained the Council lost planning documents for a site near to his home. As a result the Council could not take planning enforcement action when development was carried out on the site. The works meant there were numerous heavy vehicles using the road which serves Mr B’s property. The road was damaged and has only been partly repaired. There was fault but it did not cause injustice to Mr B.

The complaint

1. I refer to the complainant as Mr B. He complained the Council lost planning documents for a site near to his home. As a result the Council could not take planning enforcement action when development was carried out on the site. The works meant there were numerous heavy vehicles using the road which serves Mr B’s property. The road was damaged and has only been partly repaired.

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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. 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)
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. I considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

What happened

6. Mr B’s house is on an unclassified road. Near to his home there is a business. Planning permission was granted in 2006 for works at the business site. In 2020 Mr B complained to the Council that works were being carried out which meant numerous heavy lorries using the road to his property. He said the road was being damaged making access to his home difficult and risked damage to his car. He said the Council should be able to take planning enforcement action to stop the vehicles using the road as it was prevented by the conditions on the planning permission.
7. The Council looked into the matter. It only had limited documents and no plans showing the work that was permitted. It approached the owner of the site who said the works were in accordance with the planning permission.
8. The Council told Mr B it could not take any enforcement action as it had insufficient information to be able to say there was a breach of planning control.
9. Mr B argued it was clear from the decision notice that the road should not be used by the business. The Council took legal advice. That supported the view that without all the relevant documents the Council could not take action.

Analysis

10. The Council should maintain proper planning records so it is fault the Council does not hold all the necessary documents for the original grant of planning permission.
11. When such a situation arises the Council should take reasonable steps to establish the facts. It contacted the owner and accepted what they said about the works being permitted. However it did not ask the owner for copies of any plans they held. This was fault. The owner may have held further information that could have informed the Council’s decision making about what was happening on the site.
12. Based on the information the Council did hold it decided that no enforcement action was possible. I am not persuaded the Council adequately explained its reasons for this decision. A condition on the planning permission required there should be no other means of access to the site other than from the access proposed. I accept the argument that without the approved plans the Council could not be certain the works done had been completed in accordance with the plans. But that was not the point at issue. The issue was the formation of a second access which was expressly prohibited by the condition.
13. The highways department was also involved. The Council said it closed the access but it was then reopened for reasons not associated with this complaint. But it did not provide any detail about this.
14. There was fault by the Council but I cannot say this made any difference to the outcome. Even if the Council held all the information it should about the planning permission it may have decided not to take enforcement action. Such action is discretionary, and a council should act proportionately in responding to suspected breaches of planning control. This means that a breach does not automatically mean that enforcement action will follow.
15. The formation of an access onto an unclassified road does not require planning permission. And, in highways terms, if the authority does not have any safety or other concerns it will not take action. So, I cannot say there would have been a different outcome here.

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Final decision

16. There was fault but it did not cause injustice to Mr B.

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Investigator's decision on behalf of the Ombudsman