Summary: Mr X complained about the Council’s decision not to take planning enforcement action, resulting in his suffering loss of privacy and anti social behaviour. We found no fault in the Council’s decision making.

The complaint

1. Mr X complains the Council has failed to act against breaches of planning permission. Namely:
• A footpath near his property and;
• An area of open space near his property without any buffer zone.
2. Mr X says this results in loss of privacy and disturbance from anti social behaviour.

Back to top

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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

6. I reviewed documents provided by Mr X and the Council.
7. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Planning permission

8. A person usually needs planning permission to develop land. This permission may be subject to conditions or subject to a legal agreement called a s106 agreement.

Outline applications and reserved matters

9. Outline planning permission establishes the acceptability of development, subject to later agreement on the details. These are called “reserved matters”.

Permitted development

10. The law allows minor works without planning permission. These are set out in law and are called “permitted development”.

Planning enforcement

11. A council must first decide whether there has been a breach of any planning control.
12. Where a council finds a breach it has discretion on what action, if any, to take. Details of a council’s approach are usually set out in its enforcement policy.

What happened

13. In 2013 the Council granted outline planning permission for a large development including public open space. This was subject to conditions and a s106 agreement. The conditions included:
• the development should be in substantial accordance with the indicative masterplan and the principles broadly described in the Design and Access Statement unless otherwise agreed in writing by the council.
• the developer would need to provide a full specification for the Local Equipped Area of Play (“LEAP”) to the council for approval. The LEAP should meet requirements in the Fields in Trust Planning and Design for Outdoor Sport and Play (2008). (This says the activity area should be at least 20m from the nearest residential boundary).
14. The s106 agreement included an open space land plan.
15. The agreement defined:
• “Formal open space” as the areas shaded green on the open space land plan.
• “LEAP” as an equipped area of play forming part of the formal open space.
• “Reserved land” as the areas shaded grey on the open space land plan. This does not form part of the formal or informal open space.
• “Informal open space” as the remaining space.
16. The s106 agreement said the formal open space must meet the Council’s supplementary planning guidance (“SPG”) note 11. This requires a buffer zone of at least 10m between the edge of the activity zone and the nearest residential boundary. It defines an activity zone as an area of land specifically dedicated for children to use for play, which will usually include play equipment.
17. The s106 agreement further clarifies that informal open space could be provided as green space and this would not form part of the formal open space. Further, the reserved land could be green space but would not form part of the formal open space.
18. Mr X moved into his property in 2019. He explains it is opposite an area of land which is part formal open space and part reserved land.
19. In 2021 the developer built a footpath running near Mr X’s home.
20. Mr X complained to the Council the footpath was in breach of planning control and the s106 agreement. Further, there was no buffer zone between him and the open space as required.
21. In its final complaint response the Council explained:
• The path was allowed under the outline planning permission. The indicative masterplan showed a path running in front of his property. Its position was in substantial accordance with the plans. The footpath was only approximately 2 metres from the position proposed by the indicative plan, further supporting its view this was substantially in accordance with the plans.
• The fence alongside the path was likely also in accordance with these plans. In any event the fence was permitted development.
• It found no breach of planning conditions regarding the footpath. It also found no breach regarding the s106 agreement which says the developer should provide access to the public open space, which it has done by way of the path.
• SPG note 11 said there should be a buffer of at least 10 metres between the activity zone and the nearest residential boundary. It considered this requirement complied with as the play area was a significant distance away from his property. As the developer complied with planning control it could not take enforcement action.
22. Mr X told the Ombudsman:
• The developer built a footpath on reserved land in front of his home without planning permission and this was encouraging footfall towards his house. He considered the section 106 agreement placed restrictions on the reserved land.
• The developer had not provided a 20-metre buffer zone on public open space near his home in accordance with the local and national planning policies and as required by the section 106 agreement. It had applied a buffer zone to the LEAP and not the open space where the public play ball games.
23. In response to enquiries the Council said:
• The LEAP was 50m from Mr X’s property;
• The buffer zone requirements in it SPG note 11 applied solely to activity zones and LEAPs; the reserved land was neither an activity zone nor a LEAP.
• The development complied with the requirement for a 20m buffer zone.
24. In comments on a draft decision Mr X said, in summary:
• The location of the footpath had changed in drawings submitted alongside various reserved matter applications. However, there was no current permission for the existing footpath as any approvals on reserved matters had expired.
• The S106 agreement says the developer shall maintain the Reserved land as green land to the reasonable satisfaction of the Council until a further planning permission is implemented in respect of this land. Therefore the footpath required a new planning permission.
• The outline planning permission did not provide for any development on Reserved land.
• SPG 11 says the combined activity and buffer zone should be a minimum area of 3600m2 but it was less than this.
• Appendix 14 of the Council’s Local plan says the distance between the nearest house and the activity zone should be at least 20m away.
• The LEAP was only 34m away.
• The LEAP did not have the fencing, barriers and signs it required.
• He criticised the Council’s response to enquiries and highlighted inaccuracies in its response.

Findings

25. My role is to investigate the Council’s decision making in response to Mr X’s complaint of a breach of planning control. The Council outlined its decision making in its final complaint response, summarised above. While Mr X challenges some of the detail provided in the Council’s later response to my enquiries, this does not affect my view of how it reached its previous decision in response to his complaint.
26. The Council took the view the footpath was located in substantial accordance with the indicative masterplan and so in compliance with planning conditions. I recognise Mr X disagrees with this view because the footpath is no longer in the same position as set out in plans. However, a difference of opinion does not mean the Council is at fault. It is up to the Council how to interpret “in substantial accordance”. The Council considered relevant information and reached a judgement. I find no fault in its decision making.
27. The Council was satisfied the footpath had planning permission under the original outline permission. Therefore, while I acknowledge Mr X’s comments on reserved matter applications, the Council did not rely on these later permissions in its final complaint response.
28. The outline planning permission required development in line with the indicative master plan, which included a footpath. It was up to the Council to decide whether this permission allowed for the footpath to be sited as it is, whether on reserved land or not. There was no need for further planning permission under the s106 agreement.
29. The Council considered the activity zone was more than 10m from Mr X’s house and so in compliance with the s106 agreement and planning rules. Mr X disagrees because his definition of an activity zone includes the open space near him where kids play ball games. However, it is up to the Council how it interprets “activity zone”. In this case the Council considers the activity zone is the play area. While Mr X has a different view, this does not mean the Council is at fault. The Council has considered relevant information and reached a judgement. I find no fault in its decision making.
30. Mr X has highlighted the Local Plan requires a buffer zone of at least 20m, however both Mr X and the Council maintain the LEAP is over 20m from Mr X’s property. Therefore, this does not affect the Council’s decision making.
31. I cannot see that Mr X previously queried the size of the LEAP with the Council, however if the play area is smaller than the guidance suggests, this does not cause Mr X any injustice. I will not investigate this further as it is premature and has not caused Mr X any injustice. Similarly if the LEAP does not meet requirements as to signage etc this does not cause Mr X injustice.
32. The Council must find a breach of planning control before it can take enforcement action. As it found no breach it confirmed it would not take enforcement action. I find no fault in its decision making.

Back to top

Final decision

33. I have completed my investigation. This is because I find no evidence of fault in the Council’s decision making on Mr X’s planning enforcement complaint.

Back to top

Investigator's decision on behalf of the Ombudsman