Summary: Mr X complained about unreasonable delay in the Council investigating his planning enforcement allegation. There was delay and this is fault, but there is no evidence to show that the outcome of the Council’s planning enforcement decision would have been different.

The complaint

1. Mr X complained about the Council’s failure to promptly investigate his complaint about development on his neighbour’s land, which he believes causes flooding from rainwater runoff.

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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’. (Local Government Act 1974, sections 26(1) and 26A(1), 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. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
5. I gave Mr X and the Council an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. 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 encourages councils to resolve issues through negotiation and dialogue with developers.
8. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
9. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
10. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
• where there was development on, over or under land without permission, no enforcement action may be taken after 4 years from the date of the breach;
• where there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after 4 years from the date of the breach; or
• for any other breach, no enforcement action may be taken after 10 years from the date of the breach.
11. The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in an objection letter to a planning application, and they are an important planning consideration, we would expect to see evidence to show the Council had taken the issue into account before it made its decision. Without some evidence to show the Council considered the issue, we cannot know whether it has exercised its discretion properly.
12. However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the Council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals.

What happened

13. In March 2021, Mr X complained to the Council about development on his neighbour’s land. The Council did not respond, and Mr X said he sent several reminders, requesting a response.
14. In February 2022, the Council eventually responded, and it apologised for the delay. Based on the information it had, including a report sent by Mr X from a local authority drainage expert, the Council served a planning contravention notice, setting out details of the alleged breach of control.
15. The neighbour responded, denying that there had been development on land, but instead that an area of hardstanding that had existed for many years, had been maintained.
16. The Council visited the site and considered the evidence it had. It also considered aerial photos which it felt showed the area of hardstanding had existed for over a decade. It decided there was no evidence to show land levels had been raised, so there was no breach of planning control.

My findings

17. The Council took nearly a year to respond to Mr X’s allegation. It has apologised for the delay. I find that the delay is fault.
18. Whenever we find fault, we must decide whether it caused a significant injustice to the complainant that we should remedy.
19. In this case, while there was fault, I cannot show that it is likely it made any difference to the outcome of the Council’s planning decision. When it did eventually investigate Mr X’s allegation, it considered:
• what he said and the evidence he provided;
• the neighbour’s response to the planning contravention notice;
• details of aerial photos and what it had found during its investigations.
20. The Council decided there was no breach of control and so took no further action.
21. This is the planning enforcement process we would expect and I cannot say it is likely that if the investigation had happened sooner, the Council would have reached a different conclusion.
22. In these circumstances we would expect a council to acknowledge the delay and apologise for it. However, this has already happened, so I have no further recommendations to make.

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Final decision

23. There was fault because the Council did not investigate Mr X’s allegation within a reasonable time, but this made no difference to the outcome.

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Investigator's decision on behalf of the Ombudsman