Summary: Mrs X complained about how the Council dealt with her report of a breach of planning control near her home. Mrs X said the breach badly affected her living conditions and nearby buildings of historic interest. We found the Council at fault because of its avoidable delay and poor record keeping during its planning enforcement investigation. We did not find these faults affected the Council’s decision not to take enforcement action. The Council agreed to apologise to Mrs X and pay her £200 in recognition of the frustration, distress and time and trouble caused by its avoidable delays and poor record keeping.

The complaint

1. Mrs X complained about the Council’s handling of an enforcement investigation into unauthorised development near her home, because it:

• unreasonably delayed assessing the reported breach of planning control;
• failed to keep proper records of its investigation and decision making;
• failed to consult residents so they had no opportunity to object to changes made to the approved development; and
• failed to properly process applications seeking to regularise the breach.

2. Mrs X said the unauthorised development badly affected the integrity of an historic site. And the Council’s failure to properly investigate the breach put her to avoidable time and trouble and caused distress.
3. Mrs X wanted the Council to review both its decision not to take enforcement action and its procedures, including how it keeps people informed about investigations. Mrs X also suggested the Council make a punitive financial payment to a heritage charity.

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What I have and have not investigated

4. Mrs X had previously complained to the Ombudsman about how the Council reached its decision to grant planning permission for the development near her home. This statement deals with the complaint Mrs X later made about how the Council handled the implementation and enforcement of that planning permission.
5. This statement does not address that part of Mrs X’s complaint summarised at bullet point four to paragraph 1 above. The developer did make an application to amend the planning permission, which the Council did not approve. Mrs X had concerns about how the Council handled that application, which she had objected to. However, as the Council did not approve the application, I did not find its actions caused Mrs X any significant injustice. I therefore found no good reason to exercise my discretion to investigate that issue. This statement therefore addresses bullets points one to three of paragraph 1.

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The Ombudsman’s role and powers

6. 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. Where we find fault, we must also consider whether that 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), 26A(1) and 34(3), as amended)
7. 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

8. I:

• considered Mrs X’s written complaint and supporting papers;
• talked to Mrs X about the complaint;
• considered planning information about the development available on the Council’s website;
• asked for and considered the Council’s comments on the complaint;
• shared, where possible, the Council’s comments on the complaint with Mrs X;
• considered the final decision statement the Ombudsman issued on Mrs X’s earlier complaint about the development; and
• shared a draft of this statement with Mrs X and the Council and considered any comments received before making a final decision.

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What I found

Development management

9. Most development needs planning permission from the council. When granting planning permission, councils usually apply conditions to regulate and control the development. The Government’s National Planning Policy Framework (NPPF) says conditions “should be kept to a minimum” and meet ‘the six tests’. The six tests mean conditions must be necessary; relevant to planning; relevant to the development permitted; enforceable; precise; and reasonable in all other respects. Councils must give clear and precise reasons for any condition they place on a planning permission. Developers have a right of appeal against conditions. Appeals are determined by the independent Planning Inspectorate (PINs), which acts for the Secretary of State.
10. Some conditions say the developer must send details of, for example, landscape schemes, to the council for its approval before work takes place on site. When seeking such approval, the developer will ‘apply to discharge the condition’. Councils do not need to publicise applications to discharge conditions. And council officers usually determine such applications. Sometimes, councils will seek changes to the details and or scheme proposed by the developer. But it is for the developer to decide whether to change their proposal as they will have a right of appeal to PINs against a refusal to discharge a condition.

Planning enforcement

11. Development without the necessary planning permission or not complying with a permission and its conditions will be a breach of planning control. Planning enforcement is largely reactive, that is, councils rely on people reporting alleged breaches to them. Councils should investigate reported breaches, but they do not have to act against every breach they find. Enforcement action is discretionary. The Government’s Planning Practice Guidance (PPG) and the NPPF both say councils should act ‘proportionately’ when responding to a suspected breach.
12. 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 unauthorised development or use. The PPG encourages councils to resolve issues through negotiation with developers.
13. The Council has a 2018 planning enforcement policy (‘the Policy’) that sets out its approach to reported breaches of planning control. The Policy says the Council will register and quickly acknowledge a reported breach. A breach is then ranked as a ‘high’, ‘medium’ or ‘low’ priority case according to the planning harm arising from the breach. A site visit may take place, which may change the priority. Officers will focus on cases where the breach causes most harm.
14. The Policy says the Council will take formal action against a serious breach considered to need an immediate response. Otherwise, the Policy reflects the PPG by saying the Council will negotiate with developers giving them an opportunity to resolve breaches informally. The Council will quickly close a breach found to cause insufficient public harm to justify action. The Policy says the Council will produce a written report assessing the breach against planning policy and other relevant planning matters to decide what, if any action to take. The Policy also says the Council will tell those reporting a breach what, if any, action it decides to take.

What happened

15. The Council granted planning permission for development near Mrs X’s home. Conditions on the permission required the developer to get the Council’s approval to materials and details of external finishes (‘the Two Conditions’). The Council’s reasons for the Two Conditions referred to the need for the development to fit with the local area, which included existing nearby buildings of historic interest.
16. The developer quickly applied to discharge the Two Conditions. The Council issued a letter approving the details and discharging the Two Conditions (‘the Letter’). The Letter also recommended the developer provide further information about the approved external details. (In responding to the Ombudsman, the Council confirmed it no longer ‘conditionally’ discharges planning conditions.)
17. Mrs X contacted the Council about the developer not completing the development. The Council, in summary, told Mrs X that, currently, there was no breach of planning control, and the developer was cooperating and trying to secure the approved materials. The Council quickly closed its enforcement case. Mrs X continued to contact the Council in the 12 months following the grant of planning permission for the development. During this time, the Council also told Mrs X there was no time limit on the developer to complete the development. Mrs X’s view was the developer was unlikely to install the approved materials and external finishes.
18. Four months passed, during which Mrs X sought updates from the Council about completion of the development. The Council, having been in touch with the developer over the preceding four months, told Mrs X it understood the approved materials were now on site.
19. Two months later, Mrs X emailed the Council for an update. After a further two months, and chaser emails from Mrs X, the Council replied. The Council said it would visit the site again as soon as possible and then update Mrs X, but it currently had high demand for its enforcement service and staff vacancies.
20. About a month later, both the developer and Mrs X contacted the Council. The developer sent photographs to show the materials and external finishes in place on the development. Mrs X also provided photographs in support of her email saying the materials and external finishes did not comply with the permission and the details approved by the Letter.
21. The Council contacted the developer referring to the seeming difference between the Letter approved materials and external finishes and the works on site. The Council also said it had no record of receiving the further information recommended in the Letter (see paragraph 16). In the correspondence that followed, in summary, the developer said they sent the further information to the Council about two weeks after the Letter. The developer referred to many discussions and contacts with Council officers about the materials and external finishes. The developer also said the Council had known, since before issuing the Letter, about the details now in place on site but not questioned or objected to them.
22. Some Council officers that had dealt with development of the site, including discharging the Two Conditions, had left the Council’s employment. The Council sent Mrs X a ‘holding’ response while it gathered information about the approved materials and external finishes. However, the Council found no records to show it had agreed the details that were now part of the development.
23. A month later, and following a chaser email from Mrs X, the Council said it appeared its former officer had found the details in place on the site acceptable. So, it had no grounds to take action against the development.
24. Mrs X replied saying the Council’s comments were wholly unacceptable. Mrs X referred to her earlier Ombudsman complaint where we found fault, which included record keeping failures. Receiving no response, three months later, Mrs X complained to the Council.
25. Mrs X chased the Council for a reply about a month later and then again the next month. The Council then replied apologising for its delay. The Council said it accepted it had made errors dealing with the development and was responding to the findings of Mrs X’s earlier Ombudsman complaint. The Council said it would revisit the development and give further consideration to possible enforcement action.
26. The following month, a Council officer visited the site and met with Mrs X. The officer dealing with Mrs X’s complaint left the Council and it was two months before the Council next contacted Mrs X. The Council apologised for the delay and explained another senior officer had needed to review the case, including considering information from the recent officer site visit. The Council recognised the finished development ‘was not as Mrs X expected’ but said, as built, it caused no significant planning harm. And, taking account of the NPPF and PPG, formal enforcement action would not be proportionate.
27. Mrs X found the response “wholly inadequate” and asked how the Council had considered the impact of as built development on a nearby listed building. The Council replied that it had consider the setting of the listed building when reviewing the case.
28. Mrs X then asked for a copy of the report assessing the breach of planning control. The Council officer that had visited the site said there was no report as the enforcement case had remained open while it was reviewed by a senior officer. That officer, having then checked whether the senior officer wanted further action taken on the case, prepared the enforcement report.
29. The enforcement report (‘the Report’) referred to nearby heritage assets and listed buildings and the Council’s policy about ‘protected views’ for such assets. The Report referred to the Letter and the lack of records showing receipt of the further information requested or a formal agreement to use the materials and external finishes now in place. The Report then addressed the recent site visit. The officer’s view was the as built development did not result in any significant loss of residential amenity to nearby homes. And there was no impact on views to, or the setting of, a nearby listed building. The Report included photographs from the site visit. The Report ended saying no significant harm arose from the completed development and so enforcement action was not justified.
30. The Council wrote to Mrs X. It said, without any formal record approving the materials and external finishes details now in place, it had considered the matter as a breach of planning control. It had found no identified harm to the setting and amenity of either nearby homes or heritage assets. It was not therefore appropriate to take enforcement action and the case was now closed. The Council also sent Mrs X a copy of the Report. Mrs X brought her complaint to the Ombudsman.

Consideration

Introduction

31. We are not an appeal body and so do not take a second look at planning enforcement decisions to decide if they were ‘right’ or ‘wrong’. Our role is to consider whether the Council acted with fault in reaching its decision. Where we find evidence of fault, we consider if this is likely to have affected the decision and caused the complainant significant injustice.
32. As a publicly funded body we must be careful how we use our limited resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision on whether there is fault causing injustice. This means we do not try to answer every question or address each detailed point raised by a complainant about what a council said and did. So, we cannot always respond to complaints in the detail people might want.
33. I have carefully considered all the information provided. However, here, my focus was the first three bullet points to paragraph 1 of this statement that relate to the Council’s decision not to take enforcement action against the development near Mrs X’s home.

Unreasonable delay in the enforcement process

34. The Council said it had closed Mrs X’s enforcement case soon after issuing planning permission as the development was not complete and there was no breach of planning control (see paragraph 17). The evidence showed the Council’s enforcement officer visited the site and spoke to the developer and the planning officer that dealt with the planning applications for the development and discharge of the Two Conditions. These are the steps I would expect a council to take in investigating a reported breach and I saw no fault here. Having taken such steps, it was for the Council to determine whether there was a breach. And, without evidence of fault, I had no grounds to question its decision that no breach had taken place (see paragraph 6).
35. Mrs X continued to pursue completion of the development with the Council over the following 17 months, which largely coincided with COVID-19 restrictions. During this period, no further work took place on site. In response to chaser emails from Mrs X, the Council did tell her there was no time limit on the developer to complete the development (see paragraph 17). The PPG makes clear that a planning condition requiring the completion of development in its entirety will fail the test of ‘necessity’ and may be difficult to ‘enforce’ (see paragraph 9). So, while I recognised Mrs X’s likely frustration with the lack of action over these 17 months, I found no fault here.
36. Materials and external finishes were then installed, completing the development. It appeared the materials and external finishes did not comply with the planning permission and details approved by the Letter. The Council concluded its investigation 15 months later. During that time, the Council first told Mrs X it had no grounds to take enforcement action after three months. It then further reviewed the matter and considered reopening its enforcement investigation. It was after revisiting the site and meeting with Mrs X, it decided the as built development did not cause significant planning harm and concluded its enforcement investigation.
37. Fifteen months is a long time. I recognised the Council faced high demands on its enforcement service and staff vacancies. Indeed, with officers leaving the Council, it found it could not access possible relevant material that might be held on officers’ individual email accounts. In responding to the Ombudsman, the Council accepted it was solely responsible for delay in accessing and gathering such information, which impeded progress with its investigation. I therefore found avoidable delay here, which was fault. Mrs X was likely to have been frustrated by the avoidable delay. I therefore found the fault I identified caused Mrs X injustice.
38. Aside from the time taken, I found no evidence of fault in the Council’s decision making. It took suitable and proportionate steps in reviewing the as built development and revisiting the site. It was then able to reach an informed decision on the planning impact of the completed development, including the materials and external finishes. Unfortunately for Mrs X, it decided enforcement action was not justified. While I recognised Mrs X’s dissatisfaction with that decision, I had no grounds to question it (see paragraph 6).
39. The evidence also showed avoidable delay in the Council’s complaints handling. This would have caused Mrs X further distress and avoidable time and trouble in chasing the Council for a response. I therefore also found fault causing injustice in the Council’s complaint handling.

Failure to keep proper records

40. In its correspondence with Mrs X, the Council admitted it could not find records of the precise materials and details it had agreed with the developer (see paragraphs 16 and 21 to 23). The Council thought such information might be stored on former officers’ emails accounts but had difficulty accessing those accounts. The Council could not therefore be sure whether it had approved the materials and external finishes used to complete the development. A principle of good administrative practice is to be open and accountable, which includes keeping proper and appropriate records. What happened here demonstrated the risk of holding information on individual email accounts rather than an independent case record available to all relevant officers. Proper record keeping helps ensure case continuity and consistency should, for example, an officer leave a council’s employment or be absent for any significant time. I therefore found fault here.
41. We had found fault causing injustice concerning poor record keeping in deciding Mrs X’s earlier Ombudsman complaint. Mrs X’s concern that poor record keeping was continuing after that Ombudsman decision was therefore understandable. However, the poor record keeping here arose around the same time as that we identified in dealing with Mrs X’s earlier complaint. Our investigation and decision into Mrs X’s earlier Ombudsman complaint took place some months after the events central to both Mrs X’s Ombudsman complaints. Since our decision on Mrs X’s earlier complaint, the Council acted to improve its record keeping. In responding to this complaint, the Council confirmed that it continued to remind officers of the importance of up-to-date records. I recognised Mrs X’s frustration, which is an injustice, at finding the same record keeping problem when reporting a breach of planning control. However, the timeline of events did not evidence a continuation of the problem since the Ombudsman’s earlier decision.
42. Mrs X also questioned the Council’s failure to prepare a report assessing the breach before it told her it would not take enforcement action (see paragraphs 28 to 30). The Policy says the Council will prepare a report assessing a breach of planning control before concluding an investigation (see paragraph 14). Here, the Council produced the Report, but after it had written to Mrs X saying it would not take enforcement action. So, the issue was the timing of the Report.
43. The evidence showed the Council had closed its enforcement case shortly after Mrs X first raised completion of the development (see paragraph 17). The Council later reconsidered the matter and told Mrs X it had no grounds to act (see paragraph 23). The evidence was not clear about whether the Council had reopened its investigation and then closed it again. However, in responding the Mrs X’s complaint, the Council referred to possibly reopening the case (see paragraph 25). This pointed to the investigation being closed. The Council’s further review and visit to the site led it to conclude there was no significant planning harm justifying enforcement action. This suggested the Council did not reopen the investigation. Such a sequence of events was likely to be relatively rare.
44. However, given the evidence showed the Council had investigated a possible breach of planning control, the Policy did require a report assessing that breach. And it would be good administrative practice to prepare a report before writing to the person that had reported the breach to tell them of the investigation outcome. The Report provided planning grounds for the Council’s enforcement decision and reflected its earlier communication with Mrs X about its enforcement decision (see paragraph 26). Given the specific circumstances, on balance, I did not find the Council at fault. And, had I been minded to find fault, I would not consider the timing of the Report caused Mrs X significant injustice.

Failure to give residents an opportunity to comment

45. The Council did not need to publicise the developer’s application to discharge the Two Conditions (see paragraph 10). I therefore found no fault on this point.
46. Similarly, the Council was not required to consult with Mrs X when investigating her report of a breach of planning control and reaching its enforcement decision. However, the evidence showed the Council was aware of and took account of Mrs X’s views about the completed development. I therefore also found no fault on this point.

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Agreed action

47. I found fault causing injustice (see paragraphs 37, 39 and 40). To put matters right, the Council agreed, within 30 working days of this statement, to:

• send Mrs X a written apology, and
• pay Mrs X £200,

in recognition of the frustration, distress and time and trouble caused by both its avoidable delays and poor record keeping.

48. The Council also agreed, within 3 months of this statement, to review how it deals with casework information received and held on individual officers’ email accounts. The aim of the review being to ensure the Council has effective procedures for ensuring such information is:

• quickly moved to the appropriate case record and so available to all relevant officers, and or
• readily accessible should any officer leave the Council’s employment or be absent for any significant time.

49. The Council should, on completion of the actions at paragraphs 47 and 48, provide us with evidence if its compliance.

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Final decision

50. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs 47 to 49.

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Investigator's decision on behalf of the Ombudsman