Summary: Mr G complains about the Council’s decisions not to enforce breaches of planning control. The Ombudsman’s decision is there was no fault by the Council. The Council made decisions that were proportionate and evidenced. So they are not ones we can criticise.

The complaint

1. The complainant, whom I shall refer to as Mr G, is part of a community group complaining about the Council’s:
• lack of enforcement action against a developer’s breach of planning conditions and unauthorised works;
• delay; and
• poor communications.

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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 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)
3. 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)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr G;
• made enquiries of the Council and considered its responses, including its enforcement file;
• considered what the law and government guidance say about planning enforcement; and
• spoken to Mr G;
• sent my draft decision to Mr G and the Council and considered the responses I received.

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What I found

Legal and administrative background

Planning and enforcement

5. The role of local planning authorities (usually councils) is to balance the right of a landowner to do what they wish with their land and property against the public and private interests of those who the development might affect. Planning permission is required to develop land. Councils may grant planning permission subject to conditions relating to the development and use of land.
6. Councils can take enforcement action if they find a developer has not followed a planning permission. However, they should not take action just because there has been a breach of planning control. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance says:

“Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)

7. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers. So councils often first try to deal with breaches informally, through negotiation with the developer/landowner. Negotiations may take time and can result in a developer/owner making a planning application for the unauthorised development. This allows a council to give local people an opportunity to comment on that development and then assess it against planning policies. Normally, development meeting planning policies will get planning permission, unless there are other relevant planning reasons to justify refusal.

COVID-19

8. This complaint involves events the Council says were affected by the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID-19”.

What happened

9. The Planning Inspectorate, on appeal, granted the planning permission for the development that Mr G’s complaint is about. The Inspector inserted several pre-commencement conditions.
10. In the spring of 2021, Mr G and other nearby residents contacted their local councillor. They advised the development was not being built in accordance with the planning permission.
11. A Council officer visited the site. The officer wrote to the developer. They advised their visit had shown works outside the site’s boundaries; meaning the works did not have planning permission. They advised the owner to pause works.
12. After this, the Council did not take any further action for some months. In this period, the developer submitted information to discharge some of the pre-commencement conditions. The Council considered this information. And, around three months after it set up its case, it discharged the conditions.
13. That still left some breaches:
• a pre-commencement condition around vehicular access to the site;
• a condition about landscaping;
• unauthorised works outside the site’s boundaries.
14. The case officer met with local residents and their councillor in mid-summer. Shortly after, the officer wrote to the developer setting out their assessment of the breaches of the planning conditions. After some further emails, the developer:
• sent the Council information about the two outstanding conditions;
• advised the owner (a local business) needed to occupy the site with some urgency. So it suggested works around the vehicular access condition should take place on completion of the works, but before occupation.
15. The Council’s response said it accepted the likely social and economic benefits of allowing the business to continue trading. That meant it would be unlikely to enforce the breach. In internal communications, the Council also noted the road the development site was on had an embargo on roadworks during the summer months. So the developer would not be able to carry out the access works until the autumn.
16. The Council decided to close its investigation. It wrote to Mr G advising him of the reasons for this decision.
17. A few days after closing its file, a local councillor contacted the planning enforcement team, raising new concerns, about damage to trees and the access condition. The Council visited the same day. The officer did not identify any new breach, or potential harm to trees. So the Council did not then open a new enforcement case.
18. The Council’s enforcement team also wrote to its highways team asking for advice (as it had been a consultee during the planning application) about the vehicular access condition. The highway team’s response advised there was a ‘strong case’ for the implementation of the commencement condition before other work started. This was because it would improve safety when construction traffic was accessing the site.
19. The Council wrote to the developer asking for more information about:
• the likely amount of vehicle trips during the construction work; and
• an update on when it expected to make an application to the Council’s highways team for the access works.
20. At the end of the month the developer updated the Council on when it expected to start the highway work and information on likely vehicle movements. The Council decided that, due to the limited number of vehicles visiting the site, it would not be expedient to enforce the breach of the condition.
21. The Council updated the councillor that:

“…we remain of the view that serious planning harm has not yet occurred despite the several breaches of planning control, though we can of course review this situation once the various applications have been submitted and determined and/or further works carried out on site.”

22. Later in the year:
• the Council discharged the outstanding conditions;
• the developer made a planning application for the works falling outside the site’s boundaries.
23. Mr G and other residents complained. The Council’s stage two complaint response advised:

• “Whilst [the breach about vehicle access] was a particular concern of the Local Planning Authority due to potential highway safety issues, the construction works are largely complete…With this in mind, the view is retained, as set out in previous correspondence, that it is appropriate, in these very specific circumstances, to allow the … works to be undertaken at or shortly after occupation”;
• the Council’s view was it was not expedient to enforce the other condition;
• it accepted, after opening the case, it had not progressed its investigation as quickly as it would have hoped. It said this was due to an unprecedented increase in workloads. It apologised.

24. In response to my enquiries, the Council said:
• the increased workload was a result of disruption caused by the COVID-19 pandemic;
• officers dealt with the workload by prioritising cases where the legal deadline for taking enforcement action was approaching, or where it had identified the most serious material planning harm;
• at the point of registering a complaint, it had advised complainants of likely delays, caused by the pandemic; meanign it was unlikely to be able to meet its stated investigation time frames. This information was also on its website and published flow chart.

Analysis

The enforcement decision

25. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make a decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong.
26. As with any decision, I have looked at whether the Council:
• took all relevant factors into account;
• took account of any irrelevant issues;
• properly recorded and evidenced its decision;
• had regard to any relevant guidance or policies, and
• made a decision that was reasonable and proportionate in all the circumstances.
27. Important to the last two bullet points, is the law and guidance from central government about planning enforcement. This gives planning authorities much discretion over whether to take action about a breach. Guidance says authorities should only take action when it is ‘proportionate’ and ‘expedient’ to do so.
28. With this complaint, the Council investigated and found breaches of planning control. It was in contact with the developer about the breaches and decided on what it considered proportionate responses. This follows the approach set out in law and guidance. The Council has kept records of the reasons for its decisions. So, while I recognise Mr G and his colleagues’ frustration with the breaches and what they see as the Council’s inaction, my view is there was no fault by the Council.

Delay

29. The Council accepts there was a delay in advancing its investigation after the councillor first contacted it. It explains the pandemic created backlogs and it needed to prioritise the most urgent work. Given the unique set of challenges posed by the pandemic and its lockdowns, this provides a reasonable reason why the investigation was delayed. So I do not uphold this part of the complaint.

Communications

30. I can see the Council did provide regular updates to Mr G and the local councillors. While this may not have been as frequent as Mr G hoped, I do not see evidence of significant fault with the Council’s communications.
31. It would have been good practice for the Council to have updated Mr G during the delay in starting its investigation. But it had warned of likely delays. This was a sufficient way to inform complainants of the challenges it faced..

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Final decision

32. I do not uphold the complaint and have completed my investigation.

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Investigator's decision on behalf of the Ombudsman