Summary: Mr X complains about the Council’s handling of the planning application process relating to his home and subsequent enforcement action. There was service failure which meant the correct information was not published on the Council’s planning portal. The Council also took too long to respond to Mr X’s concerns and complaints. The Council has agreed to apologise and make a payment to Mr X for the delay and uncertainty caused. It will also ensure its ongoing planning enforcement investigation is progressed in a timely way and will keep Mr X regularly updated on its progress.

The complaint

1. Mr X complains about the Council’s handling of the planning application process relating to his home. Mr X says the Council published out of date information about planning conditions to maintain a wildflower meadow and pond to the front of his property. He says the Council’s error meant he and his wife missed the opportunity to decide whether to purchase their property based on correct information. Mr X is also unhappy the Council has failed to take appropriate action to enforce the planning condition relating to the maintenance of the pond in front of his home and to respond to his requests for updates on its planning enforcement action.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. 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)
4. 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)
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)

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How I considered this complaint

6. I have spoken to Mr X and his wife and considered the information they have provided.
7. I have considered the information the Council has provided in response to my enquiries.
8. 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

Planning enforcement

9. Councils can take enforcement action if they find planning rules have been breached. But they do not have to take enforcement action just because there has been a breach of planning control. Section 171A of the Town and Country Planning Act 1990 provides a breach of planning control as:

• the carrying out of development without the required planning permission; or,
• failing to comply with any condition or limitation subject to which a council has granted planning permission.

10. Enforcement action is discretionary and government guidance says it should be proportionate. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost-effective way of achieving a satisfactory outcome.
11. In deciding whether it is expedient to start enforcement action, the council can take account of several different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between protecting amenity and permitting development which is acceptable.

Publishing information

12. Decisions made by council officers using delegated powers are controlled by the Openness of Local Government Bodies Regulations 2014. The 2014 regulations require that certain decisions and their background papers are publicised on council websites, as soon as is practicable after the decision is made.
13. The 2014 regulations apply to a decision that has been delegated to an officer, if it:

• grants a permission or licence;
• affects the rights of an individual; or
• awards a contract or incurs an expense that materially affects the council’s financial position.

14. The 2014 regulations require that any such decision should be made available to the public:

• at the council offices;
• on the council’s website, if it has one; and
• by any other means the council considers appropriate.

15. The written records should include the following information:

• the date the decision was made;
• the record of the decision, its reasons and the background papers relied on;
• details of alternative options, if any were considered and rejected; and
• a record of any relevant conflict of interest.

16. The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 apply to Council meetings, which should be held in public unless certain exceptions apply.
17. The 2012 regulations require the publication of:

• The matter that will be considered/decided;
• Meeting details, including dates and time, venue;
• Details of the decision maker, or committee; and
• Details of relevant documents that will be considered.

18. After the meeting has happened, the outcome of the meeting should be published, along with background documents relating to the decision at the Council’s office and on the Council’s website, if it has one. The decision should include sufficient details so the public can understand what decision was made and the reasons for the decision. Without adequate details, albeit briefly stated, an individual who might wish to challenge the decision cannot know whether it was lawfully made.
19. Documents covered by the regulations should be published as soon as is reasonably practical after the decision was made.

Council’s complaint policy

20. The Council’s complaint policy says it will respond to stage one complaints in 10 working days and stage two complaints in 20 working days. It also says it will let complainants know in advance if it cannot meet these timescales. At the time of Mr X’s complaints, the Council’s website stated that complaint responses may take longer while it was coping with the additional demands and restrictions created by the COVID-19 pandemic and associated lockdowns.

What happened

21. Mr X and his wife purchased their home ‘off plan’ in 2019. They purchased the property in part because of its outlook. Mr X and his wife believed the wildflower meadow and pond to front of their property would be maintained in a particular way. They based this on the information provided by the developer in their planning application.
22. The Council sought an amendment to the developer’s proposed plans for maintaining the areas in front of Mr X's property. The developer submitted a revised Habitat and Landscape Management Plan (HLMP), which the Council’s Planning Committee accepted. The Council granted planning permission which included conditions to ensure the areas in front of Mr X’s home were maintained in line with the revised HLMP.
23. Mr X and his wife approached the Council in early 2021 with concerns the developer was not maintaining the area in front of their home in accordance with the HLMP. They explained to the Council they had made unsuccessful attempts to get the developer to comply with the HLMP.
24. The Council undertook site visits and made enquiries with the developer and the management company it had transferred maintenance of the estate to. The Council corresponded with Mr X and his wife about its enquiries and explained that it did not consider there had been a breach of any planning conditions in respect of the wildflower meadow.
25. It was through this contact the Council realised the revised HLMP had not been published on its planning portal. The Council explained to Mr X that while the correct revised HLMP had uploaded to the Council’s internal systems, it had failed to transfer to the planning portal where planning application documents were visible to members of the public. The Council provided Mr X with a copy of the revised HLMP. It explained that this recommended minimal intervention and maintenance to the wildflower meadow, which in the Council’s view had been complied with.
26. Mr X and his wife continued to have concerns about the maintenance of the pond in front of their property. They complained to the Council that the developer had failed to maintain the pond in accordance with the revised HLMP. At the time of my enquiries, the Council was still in the process of corresponding with the estate’s management company about this alleged breach of planning conditions.

Mr X’s complaints

27. On 11 October 2021, Mr X complained to the Council about its failure to publish the revised HLMP, the lack of response to his concerns about the maintenance of the wildflower meadow and pond.
28. The Council responded to Mr X’s stage one complaint on 4 November 2021. The Council explained how other key documents highlighted a revised HLMP but accepted this might not have been apparent to Mr X at the time. The Council also confirmed its view the developer was complying with the revised HLMP in respect of the wildflower meadow and that it was making enquiries with the management company about the maintenance of the pond.
29. Mr X escalated his concerns to a stage two complaint on 17 November 2021. He asked how the Council expected him as a lay person to have realised the HLMP had been revised. He pointed out the comments from the Council’s Ecologist that recommended the revisions was not published on the Council’s planning portal. Mr X said he and his wife had been ‘seriously misled’ by the Council’s failure to publish the correct version of the HLMP.
30. The Council responded to the stage two complaint on 22 February 2022. It apologised for the delay in providing its response and explained this had been caused by an error with logging the complaint. The accepted the revised HLMP and the Ecologist’s comments were not available on the planning portal when the planning application was being considered. The Council also acknowledged that it would have been difficult to for Mr X to have noticed the change but did not believe the Council had sought to seriously mislead him.
31. Mr X brought his concerns to us shortly afterwards as he remained dissatisfied with the Council’s response.

Was there fault causing injustice?

32. The technical issue that led to the revised HLMP not being transferred to the Council’s planning portal was a service failure. While it does not appear the Council deliberately sought to mislead Mr X, the failure did mean he and his wife missed the opportunity to make an informed decision to purchase their home based on the accurate information.
33. As the correct background papers were not published in this case, the Council’s service failure has meant it did not comply with its obligations under the Openness of Local Government Bodies Regulations 2014. This appears to be an isolated incident and as such my recommendations below seek to remedy the injustice caused to Mr X and his wife rather than action to improve the Council’s wider service. The Council may however find it useful to undertake a review of its planning portal publishing procedures to help ensure such a service failure does not reoccur.
34. The Council has considered Mr X’s concerns about the maintenance of the wildflower meadow and decided there is no breach of planning conditions. There was no fault in the way the Council reached this decision that would enable me to question the merits of that decision.
35. The Council’s enforcement investigation in respect of the maintenance of the pond is ongoing. It is therefore too soon to determine if there has been any procedural fault in the Council’s handling. The Council does however need to ensure it keeps Mr X informed of its progress and I have made a recommendation below to reflect this.
36. The Council has at times taken too long to respond to Mr X’s correspondence. This particularly occurred when it was responding to his complaints. It took nearly twice as long as its published timescale to respond to Mr X’s stage one complaint and three times longer than the timeframe for stage two responses. There appears no evidence the Council contacted Mr X to let him know its responses would be delayed. This has caused inconvenience and frustration to Mr X, which the Council should now remedy.

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Agreed action

37. Within one month of my final decision, the Council has agreed to:

• apologise to Mr X for the service failure that led to the non-publication of the revised HLMP on its planning portal and for the frustration caused by its delayed responses;
• pay Mr X £300 for the uncertainty, time and trouble caused by the faults identified in this decision statement; and,
• ensure timely progression of its planning enforcement investigation into the maintenance of the pond in front of Mr X’s home and commit to providing Mr X with regular updates on its progress and details of its decision on conclusion.

38. The Council will provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation and uphold Mr X’s complaint. Mr X was caused an injustice by the actions of the Council, which it has agreed to take action to remedy.

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Investigator's decision on behalf of the Ombudsman