Summary: Mr X complained the Council was at fault for agreeing changes to planning permission at a site near his home and for the way it dealt with issues of noise and the blockage of a Public Right of Way (PROW). We found there was no fault in the Council’s planning decisions but it failed to respond to reports that a PROW was blocked. This was fault. We recommended an apology and a review of its decision not to take action on the PROW obstruction.

The complaint

1. Mr X complains the Council failed to properly consider changes that an applicant wished to make to a housing development adjacent to his home. He complains the Council failed to properly consider objections by residents. He also complains the Council has not enforced planning conditions. He told us the development has been disruptive and ongoing for four years, their house has been damaged by the developers and their amenity has been harmed by the changes to the plans. They also have concerns about road safety.

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What I have and have not investigated

2. We have investigated the way the Council considered the request to change the planning permission in 2020 and how enforcement matters have been considered. We have not investigated the original decision to approve the application as this occurred in 2015, which is too long ago for us to robustly investigate now.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I spoke to Mr X and considered the information he provided. I asked the Council for information and I considered its response to the complaint.
6. 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

Control of Construction Act 1974

7. Section 60 of the Act allows a council to serve a notice in relation to works that are, or are going to be carried out on any premises. The notice may specify the way in which the works should be carried out to include types of machinery that may be used and the hours that work may be done on site. If someone who is served with a notice, contravenes it, they are guilty of an office against Section 60 of the Act.

Public Rights of Way

8. Public rights of way (PROW) are highways that allow the public a legal right of passage. They have the same status and protection in law as highways and remain in existence until legally closed, diverted or extinguished. It is a criminal offence to obstruct a PROW.
9. The granting of planning permission does not give the applicant the right to alter, obstruct or move a PROW. The PROW Officer must ensure that the PROW is safe for public use and will try to safeguard against any changes or obstructions.

What happened

Background

10. Mr X complains regarding a development on land around his home. In 2015 planning permission was granted for nine new houses on the site. The approved plans show the area to the south, at the side of Mr X’s property would be an open gravel courtyard providing access for parking spaces for some of the properties. Access was via a road passing in front of Mr X’s house.

Changes to the Plans

11. In January 2020 the developer submitted a planning application to change the access to the parking provision for the new properties near to Mr X’s house. This meant an access road would run around and behind Mr X’s property. The open gravel courtyard became private garden space behind the new properties. This meant the south elevation of Mr X’s property was now the boundary of a private residential garden for one of the properties. Mr X had side elevation windows which looked directly into the garden at ground and first floor. The plans showed the ground levels in the area adjacent to Mr X’s flank wall were higher than the finished floor level. The application also requested other amendments.
12. The application was not validated by the Council until January 2021. It told us this was because the red line boundary did not match the originally approved plans. It took until January 2021 for the developer to submit amended plans that allowed the application to be validated.
13. The case officer made a report to the planning committee recommending approval in March 2022. The Council told us this delay was caused by ownership issues which were outside the control of the Council.
14. The case officer’s report considered the impact to Mr X’s side window. It noted his concern about privacy due to their side window opening directly into a neighbouring garden. The case officer stated officers had considered whether a change to the plan was possible. However, they found it was likely any changes would not improve the situation. Officers also considered that the original approved plans had traffic passing in front of Mr X’s property. The revision, while creating a private garden on his boundary, meant traffic would be directed around the rear which reduced the impact of traffic under the previous plans. The Council concluded it should apply a condition requiring a hedge to be installed in the garden adjacent to Mr X’s downstairs side window. It should be grown to and maintained at a height of 1.2m. This would partially obscure Mr X’s window for privacy purposes, but allow in sufficient light. The Council considered this would achieve a suitable level of amenity for Mr X and the new occupants of the adjacent property.
15. The case officer’s report stated the change of site layout and the new access road were being proposed because of disputes between the applicant and landowner. The report considered the impact of the new road and stated the highway authority had been consulted. Highway officers did not object to the proposals. After considering the changes, the case officer concluded there would be no significant impact in terms of privacy or outlook and the change meant a betterment because traffic would be directed to the rear of their house rather than the front. The officer noted Mr X’s objections but concluded any impact on amenity was not sufficient to warrant refusal. It found the changes to car parking and garages within the site were also acceptable.
16. When the application was considered by the Council in March 2022, it was approved. A condition was added to the permission requiring the hedge to be planted prior to the occupation of the property on the southern elevation of Mr X’s property. It was to be maintained at a maximum height of 1.2m in perpetuity.

Working Hours/Noise

17. The Council told us its public protection department received two complaints about noisy work outside of the hours the Council considered standard for construction projects. These were received in January 2022 and March 2022. The Council says it investigated and wrote to the contractor and in May 2022 it served a notice under the Control of Pollution Act 1974. The notice restricted the times work could be carried out.
18. The Council told us it had carried out investigations to check that the notice was being complied with. The Council’s response to Mr X’s complaint set stated it had considered evidence they provided and the Council had taken legal advice. The Council noted out of hours visits were being conducted by officers. To date the Council had not found sufficient evidence of a breach to warrant further action, but it was subject to an ongoing investigation.
19. In response to Mr X’s complaint, the Council stated there was a Construction Method Statement that “regulates the construction process”. It stated any construction outside this could be enforced against. When we asked for a copy of the statement, the Council could not provide it.

Public Right of Way

20. The Council provided comments its PROW officer made in response to the application to vary the planning permission in February 2021. The officer stated he had no objection to the application on condition that the PROW passing through the site was protected throughout, the surface was not disturbed and the developer should not obstruct the path or in any way deter public use of the path without making the relevant temporary closure or diversion order and agreeing an alternative route.
21. Mr X wrote to the Council on 5 August 2021 stating the developer had blocked the PROW that ran through the site. He stated it had been blocked for three years. It meant the footpath could not be used by the family. He stated the developer had no right to block the path and asked what procedure the Council could use to tackle this. The Council provided no response to Mr X and it did not provide us with any record of action taken in 2021.
22. In April 2022 the Council checked what had happened in response to our enquiries. The Council told us its PROW Officer did not follow up the complaint Mr X made in 2021. This was because the path in question led to a mining site. The PROW across that site was closed and had not been reopened since. However, as the mining operations had now ceased, the Council was in talks with the new owners and it was hoped that new and existing paths would be reopened in the next few months. The Council stated it had many hundreds of outstanding, unresolved issues with rights of way and they had to prioritise those they could investigate. It stated it made no sense to prioritise this report when the remainder of the path could not be accessed.

Adherence to conditions

23. In June 2022 Mr X raised a further complaint with the Council. He stated a planning condition requiring the hedge to be planted in front of his window had not been complied with. Someone was now occupying the house next door so, there was a breach of the planning condition. The Council’s response to Mr X’s complaint about the matter stated they had taken it up with the developer and he had agreed to comply with the planting during the next planting season (October 2022 to March 2023). The Council stated it would ensure it was done as soon as possible. The planting was carried out by early October 2022.

The Complaint

24. Mr X complained his amenity was not properly considered when the Council decided the planning application to vary the permission. He stated it would take a long time for a hedge to reach 1.2m and even then, he disagreed this would protect his privacy from what was now private garden space. He also raised a separate complaint that the house was occupied before the developer fulfilled the condition requiring the hedge to be installed. Mr X’s complaint also referred to an increase in ground levels.
25. Mr X complained that the new access road around the rear of Mr X’s property would mean increase the noise from traffic that would use it and this too had not been decided properly.
26. Mr X also complained that the developers did not adhere to the restrictions on their hours of work and a Public Right of Way (PROW) was blocked during the works on site.
27. We have considered these issues. Mr X also complained that the developer had damaged their property while construction was being carried out and they not provided parking for them. We did not investigate these issues as they are civil issues of disagreement between the developer and Mr X.

Was there fault by the Council

28. I found no fault in the way the Council determined the application to amend the planning permission for the site. I recognise that Mr X was concerned his amenity would be affected by the private garden area outside his window and by the relocation of the road, but I found no fault in the way the Council considered these points. The Council had regard for the comments made by Mr X and consultees. As there was no fault in the way the decision was made, I have no grounds to call it into question.
29. There was a breach of the condition applied to the planning permission agreed in March 2022. This required the hedge outside Mr X’s window to be installed, before occupation of the property in question. I recognise there was an impact to Mr X’s privacy. In response, the Council contacted the developer. They did not take immediate action, they agreed time for the developer to complete the work. While the period allowed for compliance was long, given this was a pre-occupation condition, the time allowed for compliance was a judgement for officers to make. I do not have grounds to criticise it. Councils have discretion to decide what action to take (if any) where there is a breach of planning control. They are not obliged to act solely to resolve a breach. Further, I note the Council stated it would monitor the site to ensure the planting occurred as soon as possible. I understand the planting was carried out by early October 2022. Given the discretion available to councils regarding enforcement action, I found no fault in the way the Council resolved the matter. I note that the approved plans showed that the ground levels would be higher than the finished floor level, so the raising of ground levels did not constitute a breach of planning control.
30. The Council referred Mr X to a Construction Method Statement that “regulates the construction process” when responding to its complaint. When we asked the Council for this, it could not provide it. The failure to have a copy of the statement on the council’s records amounts to fault as it suggests that it may not be available to staff when considering whether to take action to regulate the activity on site. However, the Council confirmed that when it received complaints about noise from out of hours construction work from Mr X in early 2022, it investigated and issued a notice to the developer under the Control of Pollution Act 1974. This notice allows the Council to set out its requirements for the work on site and to hold the developer to account against this. The action taken by the Council was appropriate. Although it took from January to May 2022 to issue the notice, we would not expect a council to issue a notice immediately without first investigating the activity on site and contacting the developer. I do not consider there was delay that constitutes fault by the Council in this instance.
31. There was fault in the way the Council dealt with a right of way that crossed the development site. Mr X told the Council in late 2021 that the developer had blocked the PROW. I understand the Council took no action and did not reply to Mr X’s complaint. This was fault. The report from Mr X was one the Council should have responded to.
32. The Council’s PROW officer stated no response was sent to Mr X’s report from October 2021 because the PROW in question led to an area where PROWs had been closed due to mining works. It stated the Council would not prioritise action for this reason. It stated there were many reports of issues with PROWs and the Council had to prioritise which to act upon. I recognise there may be many reports and prioritisation may be needed. However, the Council should have addressed the report at the time it was made, and explained whether it intended to take action or not. It is not clear if the Council has taken into account that the closure of the PROW displaces pedestrians onto a road with a 60mph speed limit. The failure to consider and respond to Mr X’s report at the time it was made was fault.
33. In response to our investigation, the planning department stated the PROW may have been blocked but this had been resolved. Mr X told us it was blocked again in October 2022. So, I have recommended the Council reviews the situation to determine if the Council should take action to require the section of the PROW in question to be kept open and unobstructed by the developers.

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Agreed action:

34. Within four weeks of my final decision:
35. The Council should apologise in witing to Mr X for its lack of response to his report about the PROW. It should review whether action should be taken to keep the PROW open and confirm the outcome to Mr X in writing.
36. Please ensure the Council’s apology adheres to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. There was fault by the Council. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman