Summary: Mr X complained the Council delayed taking enforcement action against a developer who had breached planning conditions. We have discontinued our investigation as the Council’s enforcement investigation remains open. It is not possible for us to reach a decision on the alleged injustice caused by the Council’s actions until the enforcement investigation has concluded.

The complaint

1. Mr X complained the Council failed to take enforcement action against a developer who was in breach of planning. He said:
• the development is nearly complete despite the Council not discharging three conditions related to drainage, contamination and surface water.
• it took the Council 5 months to respond to his report of the planning breach.
• despite the Council writing to the developer in July 2021 to remind them not to undertake any further works until the conditions were discharged, the developer continued, and the Council did nothing.
2. Mr X said the development without the proper drainage adds to the flooding problems in the area which affects access to his property.

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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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. I considered Mr X’s complaint and spoke to him about it.
6. I also considered the Council’s response to Mr X and to my enquiries.
7. Mr X 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

Council enforcement policy

8. The Council has a planning enforcement policy. This sets out what is considered potential breach of planning control. This includes failing to comply with any condition subject to which planning permission has been granted. The law says that councils should only take enforcement action when it is satisfied that the proposed action is expedient and proportionate.
9. The Council has a target to achieve an ‘identified action’ in relation to alleged breaches of planning control within 8 weeks of receiving the enquiry. The ‘identified actions’ include:
• identifying no breach and closing the case,
• deciding action is not expedient,
• negotiating with the developer to resolve the breach,
• requesting a planning application,
• issuing a notice, and
• taking legal action.
10. If the Council decides to negotiate with the developer, the policy adds a condition. Negotiations should not be allowed to hamper or delay the consideration of enforcement action where a breach of planning control causes serious harm to amenity.

What happened

11. The Council granted planning permission for a housing development subject to conditions. Three of these conditions related to contaminated land, drainage and foul and surface water.
12. Mr X said the developer built the houses before the Council had discharged the conditions. Mr X said the Council visited the site in May 2020 so would have seen the breach of planning conditions. Mr X reported this to the Council in August 2020. The Council said it visited the site in November and December and it appeared that building works had stopped. The Council did not inform Mr X of this until February 2021.
13. Mr X continued to report problems caused by the development in terms of its impact of flooding in the area. In July 2021, the Council said although work on the site had not recommenced, it contacted the developer. In the letter, the Council advised the developer that if they restarted development in the absence of the Council discharging the outstanding conditions, the Council may issue a Temporary Stop Notice (TSN).
14. In August 2021, the developer submitted condition discharge applications to the Council. Objections were received and the Council did not discharge the outstanding conditions.
15. In December 2021, the developers recommenced the building work. The Council wrote to the developer to advise them that in the absence of the discharge of conditions, the development remained unlawful.
16. The developer responded to the Council’s letter. It said that it had submitted information and while there had been a mix up due to a change of developer, matters were progressing positively.
17. The Council continued to advise the developer to stop further works until the outstanding matters had been resolved. The developer confirmed they would stop works on the part of the development with outstanding conditions.
18. At the time of my investigation, the Council confirmed the conditions remain outstanding and it has an ongoing enforcement investigation in relation to this site.

My findings

19. From the evidence I have seen, the Council delayed responding to Mr X about the alleged breach of planning. While this is not good practice, it falls short of being fault.
20. The Council visited the site several times before responding to Mr X. The Council explained it did not take enforcement action initially as the site was mothballed. Once the developer began building work again, the Council took enforcement action. The Council’s enforcement investigation remains open as it has still not discharged the planning conditions.
21. It is not possible for me to reach a decision regarding the alleged injustice caused to Mr X by the Council’s delayed response until the enforcement investigation concludes.
22. I have therefore discontinued my investigation.

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Final decision

23. I have discontinued my investigation. While the enforcement investigation remains open, it is not possible to determine the level of alleged injustice potentially caused by the Council’s actions.

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Investigator's decision on behalf of the Ombudsman