Summary: Mrs X complained about how the Council handled and responded to her reports of planning control breaches on a development near her home. She said the Council failed to take enough action and she experienced distress and uncertainty as a result. We did not find the Council at fault. It followed its enforcement policy, reached decisions it was entitled to make, and shared its views with Mrs X.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the Council’s approval of a development of houses near her home and its handling of her subsequent concerns about changes to plans and breaches of planning conditions and flood risks. She said the Council had failed to take enough action against the developer and respond appropriately to her concerns.
2. As a result, Mrs X said she has experienced uncertainty due to not having her concerns properly considered, and distress due to the impact of the developer’s planning breaches.

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What I have and have not investigated

3. I have considered Mrs X’s complaint about how the Council dealt with her reported planning control breaches and flood risks for a development near her home since Autumn 2021. Including how it responded to her concerns.
4. I have not investigated Mrs X’s concerns about the Council’s decisions on the planning application before Autumn 2021. During this time, it granted planning permission for the development of houses and discharged some planning conditions. This is because this matter has been brought to our attention late, and I have seen no good reason to exercise my discretion.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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

9. As part of my investigation, I have:
• considered Mrs X’s complaints and the Council’s responses;
• discussed the complaint with Mrs X and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law, guidance and policy relevant to the complaint.
10. Mrs 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

Amendments of planning applications and discharge of planning conditions

11. Government guidance on consultation and pre-decision matters says it is up to the local planning authority to decide whether further publicity and consultation around amendments to a planning application is necessary. In the interest of fairness, it should consider whether without re-consultation any of those who were entitled to be consulted would be deprived of the opportunity to make representations.
12. The Council’s Statement on Community Involvement sets out how it will consult and publicise planning applications. Once a planning approval has been granted, the Council will not publicise discharge of conditions or non-material amendment applications by applicants.

Planning Enforcement

13. Breaches of planning control are defined in S171A of the Town and Country Planning Act 1990 as:
• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted. (Town and Country Planning Act 1990 S.171A)
14. When planning permission for carrying out any development has been granted subject to conditions and these conditions are not complied with, the council may serve a notice (a breach of condition notice). (Town and Country Planning Act 1990 S.187A)
15. Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate. (National Planning Policy Framework paragraph 59)

The Council’s Enforcement policy

16. Once the Council receives a complaint about a breach of planning control, its policy says it will log the complaint and consider the planning history for the site. It may arrange for an enforcement officer to inspect the site to establish the nature of the alleged breach and gather evidence, if required.
17. Officers start an investigation by assessing whether a breach has taken place and, if a breach has occurred, they determine whether enforcement action is necessary. It should be stressed, as stated above, that the Council does not have a statutory duty to take formal planning enforcement action.
18. A breach of planning control must occur before enforcement action can be considered. There must be some evidence that a breach has occurred before the Council can consider any form of enforcement investigation.
19. It can take time to investigate breaches and follow good practice to resolve issues, and this can sometimes lead to frustrations. Making a complaint does not lead to immediate enforcement action and in some cases, even when a breach has occurred, the Council's decision may be that it is not expedient to take enforcement action.
20. In cases where the Council considers that it is expedient to take enforcement action, the Council will select the type of action that is considered most appropriate. This may be informal action such as negotiation, or formal action.

Complaints Policy

21. The Council will consider complaints about planning and enforcement under its corporate complaints policy. It says it:
• will respond to complaints under its stage 1 process within 10 working days; and
• aims to provide its response to escalated complaints under its stage two process within 20 working days.

What happened

22. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
23. In 2016 the Council granted planning permission to a developer for a development of houses. The approval included several planning conditions the developer should adhere to before, during and after the development took place.
24. Mrs X lives next to the development, which is on the border of the Council’s area. A separate application by the same developer was approved by the neighbouring Council for a similar number of houses.
25. Over to following three years the Developer submitted further assessments, plans and some variations to the planning permission. The development commenced.
26. The Council discharged the relevant planning conditions and approved the variations to the plans without further consultations with neighbours.
27. In Autumn 2021 the Council considered further plans, variations and discharge of condition applications from the developer. These included matters relating to the appearance, landscaping, layout, scale, construction planning, drainage, and works access. It consulted with relevant statutory consultees, and approved variations as it found these were non-material amendments to what had already been approved and discharged some conditions.
28. Mrs X, other neighbours, and some local councillor’s raised concerns to the Council about the Developer’s breaches of planning conditions. They said these included:
• commencing development without the appropriate drainage scheme approval;
• some vegetation and trees had been removed;
• a ditch had been filled in;
• approved working hours had been exceeded;
• damage to the highway and the developers use of temporary traffic lights;
• houses were being built at a higher level than what was set out in the plans; and
• concerns about the erection of a fence which was not environmentally friendly and exceeded the development boundary.
29. The Council logged the concerns it received, and its enforcement Officer visited the site in early 2022. The Officer met with Mrs X and other neighbours.
30. Mrs X continued to raise her concerns about the development.
31. The Council considered the concerns it had received which included input from various teams such as enforcement, planning, drainage, environment, and highways. It found there had been some breaches of planning control and the conditions for the planning approval by the Developer. However, it found the best way forward was to work with the Developer informally to resolve the breaches.
32. The Council met with the Developer and set out it concerns and what it expected from the Developer.

Mrs X’s complaint

33. In summer 2022 Mrs X complained to the Council about how it had handled her reported breaches of planning control by the Developer. She also questioned the Green Belt status of the area and why it had not consulted with neighbours regarding variations to the plans. She wanted the developer to cease the development until it complied with all the conditions attached to the planning permission. Mrs X’s local councillor also made this request to the Council.
34. The Council told Mrs X it had considered her concerns, met with the developer, and its officers had inspected the development. It found some breaches had occurred. It had decided to work informally with the developer to ensure each of the identified concerns were address. However, it explained:
• floor levels were as set out in the plans;
• the protective fence was during the development and would not necessarily correspond to the boundary of the development. Regardless, this was a matter between the adjoining landowner and the Developer;
• the area was not Green Belt land;
• it was not required to consult with Mrs X and other neighbour for variations to the plans relating to the development as it considered these to be non-material; and
• the ditch was not part of the drainage scheme for the development. This was therefore not a breach of planning control, but its drainage officer would address this concern with the Developer.
35. In Autumn 2022 Mrs X continued to raise her concerns to the Council about the Developer’s breaches of planning control and made a further complaint about how the Council had handled her concerns, including its decision to grant planning permission for the development.
36. The Council responded formally under stage one of its corporate complaints policy. It explained planning enforcement was discretionary and it had to act proportionately to decide whether it was expedient to take action against the developer. It said there were many conditions attached to the planning permission and where breaches were identified, it had worked with the Developer to resolve these. It also agreed to attend a meeting arranged by neighbours of the development and local councillors to discuss the concerns.
37. A meeting between Mrs X, other neighbours and the Council took place in late 2022. The Council also arranged for an Environmental and a Drainage officer to inspect the site again.
38. Mrs X asked the Council to escalate her complaint. She also complained about how the Council had handled her complaint.
39. In its final complaint response in early 2023, the Council did not change its view. It also found it had properly handled Mrs X’s complaints. Although it acknowledged it had not been as clear as it should have been in its initial complaint response that the outcome was continued dialogue with the Developer.
40. Mrs X asked the Ombudsman to consider her complaint about how the Council had handled her enforcement reports and complaints.
41. Mrs X has since continued to raise her concerns about the development to the Council, which includes damage to trees and removal of vegetation and hedgerows. The Council has continued its dialogue with the Developer. It has also said it found some removed vegetation was found to have a low importance, but it intends to assess the loss of habitat involved and decide if further compensatory planting is required by the Developer.

Analysis and findings

42. Mrs X’s complaint includes matters which occurred since 2016. Parts of her complaint is therefore late. I have found it appropriate to exercise my discretion to consider her complaint from Autumn 2021 which was 12 months before she first brought her concerns to the Council’s attention. This is because she has continued to raise her concerns since.

Discharge of conditions and approval of amendments

43. The Council’s 2016 planning approval for the development contained several conditions which the Developer had to adhere to before, during and after the development.
44. I acknowledge Mrs X feels the Council should have consulted her and other neighbours around its decisions to approve the Developers applications for amendments to the approved plans since Autumn 2021.
45. However, I have not found the Council at fault. This is because it:
• considered the Developer’s applications for the discharge of conditions by obtaining the views of its planning, drainage, and environmental team officers, including relevant external consultees; and
• considered the Developer’s applications for amendments to the approved plans. It found the variations to be limited or non-material.
46. The Council was entitled to reach its view the variations to the plans were non-material, and in line with its Policy, it was therefore not required to consult or publicise these further. As there was no fault in the process the Council followed, I cannot criticise its decisions.

Planning enforcement

47. Mrs X shared her concerns with the Council about the Developer’s failure to comply with some conditions and plans for the development.
48. The Council considered each of Mrs X’s concerns, arranged for enforcement, drainage, planning and environment officers to inspect the site. It found some of Mrs X’s concerns were not breaches of the plans or conditions. However, it agreed there had been some breaches by the Developer. These included:
• commencing some development before conditions or plans had been approved by the Council;
• hours of operation had been exceeded; and
• some works or removal of trees, vegetation and hedgerows.
49. I acknowledge Mrs X is not satisfied with the actions the Council has taken and she has experienced concerns and distress as a result of the Developers actions. However, planning enforcement is retrospective. This means once the developer was in breach of planning control, the Council should consider whether it was proportionate and expedient for it to take action.
50. I found no fault by the Council as it was entitled to reach its view on how best to address any breaches it identified. It decided, in line with its Policy, to do so through dialogue with the Developer. The evidence shows this has resolved some of the concerns the Council had, and it continues to monitor the development. It has also made it clear it may require the Developer to compensate for loss of vegetation as part of the planting scheme approved for the development.
51. Mrs X also disagreed with the Council’s view the drainage scheme for the development was appropriate when it discharged this condition. She said there had been new Government guidance regarding flood plains since the planning permission was granted.
52. I have not found any evidence of fault. The Council considered the Developer’s drainage expert’s report and its drainage officer was satisfied the scheme was appropriate before plans were approved and the condition was discharged. In addition, the Council cannot add further conditions or requirements as a result of new guidance, which came into force after a planning permission has been granted. It was therefore entitled to reach its view the conditions around drainage should be discharged.

Communication with Mrs X and complaints handling

53. Once Mrs X raised her concerns to the Council about the development and the Developer’s actions, it logged her concerns and started its enforcement investigation.
54. It is clear it took the Council some time to reach its views on the reported concerns it received from Mrs X, other neighbours, and local councillors. However, there are no specific timescales a council must adhere to, and the Council’s Policy warns planning enforcement is normally a long process.
55. The Council met with Mrs X and other neighbours, inspected the site, discussed the alleged breaches of planning control with relevant officers, and attended a meeting arranged by neighbours of the development. It shared the outcome of its investigation with Mrs X and continued to do so when new concerns were reported to it. I have therefore not found the Council caused delays in its enforcement process, nor how it communicated with Mrs X.
56. The Council provided two stage one complaint responses to Mrs X, in Summer and Autumn 2022. It then provided its final complaint response in early 2023.
57. The Council could have considered Mrs X’s on ongoing dissatisfaction with the development under its stage two process sooner. However, I am conscious Mrs X continued to raise concerns about the development to the Council which included new issues and concerns. It therefore decided to respond to her Autumn 2022 complaint under its stage one process again. I found the Council was entitled to reach this view.
58. The Council’s initial stage one and its stage two response took longer than what it aimed for it in its Policy, and it did not tell Mrs X its response would be delayed. However, as I have not found fault in the substantive part of the complaint, I am not satisfied this delay caused Mrs X a significant injustice. The Council apology for the delay was therefore enough to remedy the uncertainty the short delay caused.

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Final decision

59. I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman