Summary: The complainants Ms X, Ms A, Mr B and Mr C (the Residents) said the Council failed to follow the right process when considering planning application for a major development in their neighbourhood. They also complained about the Council’s actions regarding monitoring and enforcement of the planning conditions attached to the approved planning application. We do not find fault in the way the Council carried out planning control. The remaining part of this complaint is late.

The complaint

1. Ms X, acting in her own name and also on behalf of other complainants, says the Council failed:
• To follow the right process when considering planning application for the major development in the neighbourhood of the Residents’ properties;
• To act appropriately regarding monitoring and enforcement of the planning conditions.
2. Ms X says the Council’s failings affected their amenities and caused them distress. They had to spend a lot of time contacting the Council and prompting it to act, which should not have been necessary.

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What I have investigated

3. I investigated whether there was any fault in the Council’s actions within monitoring and enforcement of the planning conditions.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)

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How I considered this complaint

7. I reviewed all the documents provided by Ms X and the Council.
8. I also reviewed Sedgemoor District Council Planning Service Local Enforcement Plan (the Policy).
9. Ms 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

Legal framework

10. 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)
11. 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)
12. 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 policy

13. 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.
14. 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.
15. 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.
16. 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.

What happened

Planning application

17. In September 2020 the Council approved planning application for a major development near the Residents’ properties. The application permission was granted subject to the discharge of some planning conditions, many of which were addressing the Residents’ concerns, raised in their objections to the planning application.
18. In November 2021 the Council discharged some of the planning conditions based on the information provided by the applicant (the Developer).

Landscaping planning condition

19. Following the Council’s request, in the beginning of February 2022 the Developer provided additional landscaping details.
20. In the same month the Developer commenced works for which the planning application was approved.
21. The Residents contacted the Council in mid-February:
• asking for a site visit due to concerns about the security of the fence location;
• enquiring whether the Developer appointed an independent qualified officer to monitor effects of the construction works on wildlife;
• pointing out the Council’s failure to take appropriate action on the Developer’s non-compliance with planning conditions.
22. Two months later the Council told the Residents there was no breach of planning approval as the Developer was following a landscaping scheme which included removal of diseased plants and their replacement with native species.
23. In the beginning of May the Council’s officers visited the site and met with the site manager. Having concluded more vegetation was removed that previously agreed, the Council recommended for the Developer to ensure additional tree planting of native species supplement existing hedgerows. The Council asked the Developer to submit the amended landscaping scheme for approval.
24. At the end of May the Council informed the Residents its officers carried out a site visit and met with the site manager to establish the situation with landscaping.
25. Responding to the Residents’ concern at the end of June, the Developer confirmed it was awaiting information from a landscape designer.
26. In mid-September the Council asked the Developer for the update on the amended landscaping scheme.

Lighting planning condition

27. Responding to the Residents’ concerns about the Developer’s lighting plans, expressed as part of their complaint in April 2022, the Council stated it would not be able to take any action before any potential breach happens.
28. In the beginning of June the Residents informed the Council the site was operating and the lighting installed failed to comply with the relevant planning condition.
29. The Council contacted the Developer and a few days later the Developer submitted the application for a discharge of the planning condition. In view of the insufficient information on lighting this application was declined in mid-July.
30. There was a further exchange of the communication about the lighting between the Residents and the Council in August.

Enforcement action

31. In mid-September the Council requested an update on landscaping and lighting from the Developer, setting up an enforcement case.
32. A few days later the Developer:
• apologised for a break in communication;
• confirmed it chased up a landscape designer;
• stated it awaited response from the lighting team.
33. In the second week of October the Council held a remote meeting with the Developer, discussing landscaping and lighting. The action plan was agreed, including a retrospective application regarding lighting.

Complaint process

34. The Residents lodged their complaint at the end of April 2022. They said the Council failed by:
• Presenting a misleading report to the Planning Committee;
• Giving the Residents inadequate notice of the Planning Committee meeting;
• Not monitoring the Developer’s compliance with planning conditions.
35. A few days later the Council responded and said no enforcement action would be taken at this stage as there were ongoing discussions with the Developer. It also stated it would carry out a site visit to review the removed vegetation.
36. Not satisfied with the Council’s response, in the beginning of May the Residents asked the Council to consider their complaint at stage two of its complaint process.
37. Later in May the Council confirmed its position it would not be taking any enforcement action at this time.
38. In August the Residents complained to us about the Council’s failure to act following the Developer’s non-compliance with planning conditions regarding landscaping and lighting. During the telephone conversation Ms X explained the complaint also referred to the way the Council approved the Developer’s planning application.

Analysis

39. When carrying out its actions relating to planning control councils have discretion but should balance:
• Proportionality in responding to suspected breaches of planning control; and
• Effective enforcement necessary to maintain public confidence.
40. The available evidence suggests the Council monitored compliance with the planning conditions on landscaping and lighting through:
• Enquiries addressed to the Developer;
• Discussions on the ways of resolving problems arising in the course of construction works;
• Carrying out a site visit;
• Identifying requirements to ensure any failings are remedied.
41. These seem legitimate ways of acting proportionately to try to resolve the situation before undertaking an enforcement action.
42. Once the Council realised the Developer unreasonably delayed agreed actions and there was a break in communication for a few weeks, it decided to set up an enforcement case.
43. The Council recognises the investigation of planning control breaches can take time, which, in turn, might lead to frustration. As explained under paragraph 15 of this decision, even when a breach has occurred, the Council's decision may be that it is not expedient to take enforcement action.
44. Responding to the Residents’ complaint regarding lighting the Council correctly said it would not be able to act before any breach of planning control occurred. This is in line with the Council’s Policy as quoted under paragraph 14 of this decision.
45. For the reasons explained above I do not consider the Council was at fault in the process of monitoring and enforcing compliance with the planning conditions on landscaping and lighting.

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Final decision

46. I do not find fault in the way the Council carried out its planning control. This investigation is now at an end.

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Parts of the complaint that I did not investigate

47. I did not investigate whether the Council was at fault in the process of approving the planning application.
48. The Council approved the Developer’s planning application in September 2020. The Residents raised objections to the planning application and knew about the Council’s decision. Even though the development was delayed due to the COVID pandemic, once the planning application was approved, the Residents could have complained to the Council and then, if necessary, to us.
49. I cannot see any good reason to accept the part of the complaint, which is late.

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Investigator's decision on behalf of the Ombudsman