Summary: Mr X complains about a lack of planning enforcement action by the Council between December 2020 and December 2022. We find no evidence of fault in the Council’s decision making or how it progressed the case. We therefore cannot question the merits of its decision.

The complaint

1. Mr X complains the Council failed to take planning enforcement action between December 2020 and December 2022 on a development where he lives.
2. Mr X says this left him and other residents in a poor and dangerous environment. He says the situation also caused him uncertainty, frustration and inconvenience trying to resolve his complaint.

Back to top

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. 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)
5. Mr X approached us in December 2022 about matters going back to December 2020. This is more than 12 months after he initially became aware of the issues. However, Mr X continued to pursue the Council in this period, and some of the issues were unresolved and may affect a large group of residents. I have therefore exercised discretion to investigate matters from December 2020 until December 2022.
6. 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)

Back to top

How I considered this complaint

7. During my investigation I spoke to Mr X to discuss his complaint and considered information he provided. I also made enquiries of the Council and considered its response.
8. I consulted the relevant law and guidance around planning and planning enforcement, which I have referenced where relevant in this statement.
9. Mr X and the Council had an opportunity to comment on my first and second draft decisions. I considered any comments received before making a final decision.

Back to top

What I found

Planning enforcement

10. Breaches of planning control are defined in section 171A 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.
11. Planning enforcement action is discretionary; councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking or coming to an agreed compliance date to avoid further action.

National Planning Policy Framework

12. The National Planning Policy Framework (NPPF) sets out the government’s planning policies for England and how these are expected to be applied.
13. The Framework says 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.

Council’s Planning Enforcement Policy

14. The Council’s policy says:
• It aims to resolve identified breaches using the most appropriate action and its enforcement approach has regard to the NPPF guidelines as set out in paragraph 12 and 13 (above).
• The Council may address planning breaches without formal enforcement as a quicker and more way of achieving a satisfactory and lasting remedy.
• The Council considers whether formal enforcement action is a proportionate response to the breach. In doing so, it considers whether the breach unacceptably affects public amenity or safety.
• The Council undertakes an initial assessment and a desktop review of reported breaches. It then prioritises cases into four levels in order of seriousness. The Council aims to allocate and acknowledge reports within five working days of receipt. It decides the investigation status within 10 working days of receipt. If it decides not to investigate further, it informs the complainant within 14 working days of receipt.
• The Council does not have a set target timescale for the completion of investigations as enforcement cases have different circumstances requiring different levels of investigation.
• The Council’s formal enforcement actions include the service of Breach of Condition, Enforcement, Stop, section 215 and Temporary Stop notices. In extreme cases it considers injunctions where offenders have ignored normal enforcement procedure.

What happened?

15. Mr X lives on a large residential development (‘the Development’). The Council explained the Development is being constructed in stages, by several house builders (‘the Consortium’). The outline planning permission and other reserved matters determined since are subject to conditions.

2020- Mr X’s complaint

16. In November 2020, Mr X complained to the Council on behalf of himself and other residents. Mr X listed both general matters and what he believed were multiple planning condition breaches on the Development.
17. Mr X requested the Council ensure the planning conditions were met and take any necessary enforcement action.

The Council’s response

18. The Council subsequently investigated if the Consortium had failed to:
1. Complete children’s and neighbourhood recreational areas (‘Play Areas’) by a specified date.
2. Adhere to landscaping requirements in a Green Infrastructure and Biodiversity plan. This included specific tree and shrub planting requirements and creation of public pathways (‘Greenways and Open Spaces’) across the Development.
3. Adhere to a landscaping plan for an access road (‘the Access Road’).
4. Adhere to a Boulevard Scheme plan which required landscaping and tree planting in specified manner and further maintenance of trees, litter, and any necessary repairs.
5. Adhere to an approved plan for a tree-based noise barrier (‘Noise Bund’) created to reduce noise pollution.
6. Set up a Community Trust (‘the Trust’) by 2018, to provide additional resident community and access services.
19. In its November complaint response, the Council said:
• It discussed Mr X’s concerns with Consortium representatives and had not ruled out enforcement action. However, it initially worked with developers to rectify issues before considering formal action.
• It did not believe the landscaping quality was poor across the whole Development.
• It accepted some the Play Areas were delayed because of contractor performance. The Consortium had assigned a new contractor and one of the Play Areas was completed in November. The completion date for the second Play Area was being reviewed.
• It needed further information about landscaping breaches to take enforcement action. However, lack of maintenance of plants and green areas was due to COVID-19 and a hot summer. It had raised this issue with the Consortium and requested replanting of any damaged or dead plants.
• The Trust already existed as a limited company. But the Council was encouraging the Consortium to convert it to trust status.
20. During its investigation, the Council sent Mr X compliance timetables in December 2020 (‘CT1’) and December 2021 (‘CT2’). Following our enquiries, it provided us a further document explaining each alleged breach with updated actions (‘the Record’). It also provided a further case update table (‘PT1’) which sets out how it progressed matters between mid-March and late September 2021. I have incorporated this information where relevant to explain the chronology of events.
21. The Record says:
• In November 2020, the Access Road’s landscaping was on hold because of water utility works. The Council therefore decided enforcement action would be premature.
• Following discussion with the Consortium, it decided to allow more time for the Play Areas to be completed before considering any enforcement action.
22. In December 2020, the Council had a meeting with Mr X, an MP, and local councillors. It then sent Mr X CT1, setting out the main enforcement issues with the Consortium’s compliance proposals. CT1 said the Boulevard Scheme plan would be addressed by mid-December and the remaining issues by the end of quarter one (April 2021).

2021

23. In February and March, Mr X emailed the Council to say CT1 actions were incomplete. On 8 March, Mr X sent an email requesting approved drawings for the landscaping and layouts. The records show the Council replied on the same day and provided the drawings. The Council said it also conducted a compliance site visit as the Noise Bund and Boulevard Scheme were being replanted.
24. In mid-June, Mr X emailed the Council seeking a further meeting. He copied multiple officers into the email. The evidence shows one of the officer’s replied to explain she was on jury service, but Mr X could arrange to meet with other officers. PT1 shows the Council continued to monitor and discuss the Development’s compliance issues between March and September. This included the following actions, in:
• March- organising a site visit walkabout with Mr X to identify any further non-compliance issues.
• April- discussions at a Council and developers meeting about compliance progress issues as set out at paragraph 18 (above).
• May/June- organising inspections for Play Area 2 and ongoing structural landscaping issues.
• July/September- addressing storage issues related to further landscaping on the Development, considering enforcement for non-compliance and meetings with developers to review the outstanding compliance issues.
• The Council explained it was also simultaneously progressing other enforcement matters on the Development unrelated to Mr X’s complaint. The Council said its progress on Mr X’s complaint issues in this period was reasonable and proportionate given the additional limitations of COVID-19. It said the Planning officer also did not believe there was anything significant to update Mr X with at the time.
25. The Record says, in September the Council ensured the Consortium appointed a landscape architect to audit the Development. The architect reported planting was incomplete and only partially in accordance with the approved plans. The Council escalated this with the Consortium who agreed to address the outstanding landscaping issues between October 2021 and March 2022.
26. In November, the Council sent Mr X CT2, which said:
• Outstanding compliance works for the Boulevard Scheme, Play Areas and general landscaping issues were now mostly complete.
• A new management regime was in place for the Greenways and Open Spaces to address outstanding tasks with revised dates of completion.
• The Consortium was appointing an interim project manager to progress the Trust.
27. In December, Mr X emailed the Council to say he disagreed with the CT2 update. He included his own comments setting out why the planning conditions had not been met. He expressed frustration at the Council for not taking enforcement action. Mr X also requested a further meeting with the Council, residents, councillors, and the local MP. In mid- December, the Council acknowledged Mr X’s email and explained it had raised matters with the Consortium and would follow up in the new year following which a meeting would be arranged.

2022

28. The evidence shows, in late January the Council sent Mr X an update email. It explained it had met with the Consortium and confirmed a priority action plan. Mr X then emailed the Council and requested a meeting. He explained the Consortium’s compliance updates to the Council did not reflect the actual state of the Development and included supporting photographic evidence. The evidence shows the Council remained in contact with Mr X in February and March. It later scheduled the meeting for late April to accommodate planning officer’s and Mr X’s availability.
29. The Record also says:
• In January, the Council visited the Access Road and confirmed a continued landscaping breach. However, the Consortium advised electrical utility works were now required under the road before landscaping could be completed. The Record says the Council pursued the Consortium between February and November for updates, undertook further site visits to check progress and considered further enforcement action.
• Between January and March, the Council addressed the Greenways path issue by way of a site visit, desktop assessment and communication with the Consortium. It also sought legal advice about whether it could take enforcement action to progress matters. Between March and June, it continued discussions with the Consortium and set a completion deadline. In July, after a further site visit it served a Breach of Condition notice for the works to be completed by March 2023.
• Between January and March, the Council enquired with the Consortium about the second Play Area. It was advised there were delays because of an outstanding health and safety report delayed by COVID-19. The Council therefore decided against enforcement action but monitored the Consortium’s progress until the second Play Area was opened in April 2022.
• Between February and June, the Council requested a further landscaping audit and a schedule for completion of outstanding landscaping works from the Consortium. It said it received the schedule in June, setting out landscaping to be completed between October 2022 and March 2023. It said it undertook regular site visits from June 2022 onwards and was satisfied planting was in accordance with planning conditions. It therefore decided to resolve the issue without formal enforcement action.
• Between January and July, the Council was addressing legal issues relating to the management and structure of the Trust with the Consortium. This was progressed with further discussions between August and October. In November an external specialist was recruited which brought the issue back on course. The Council explained it could not take enforcement action due to a legal clause which required it first exhaust mediation options.
30. In April, the Council had an online meeting with Mr X. It has clarified minutes were not taken but an officer followed up with Mr X after the meeting by email. In response to our enquiries, it said Mr X was still frustrated by what he perceived as lack of progress by the Council despite updates provided.
31. In mid-June the Council emailed Mr X an update. It said:
• It recognised the resident’s frustration. But it was working with the Consortium to correct the identified breaches and had made significant progress in the previous six months.
• It understood residents wanted the Council to take formal enforcement action, but this was not always the best course. It believed informal action would be a quicker and more effective in achieving the required outcome.
• It had identified issues with the Consortium’s strategy for managing the Trust. These had to be reviewed before deciding the best course of action.
32. In mid-July the Council sent Mr X a further update, it included additional matters which are not part of my investigation and omitted here. It said:
• The Consortium had provided a further update for the Boulevard Scheme plan. The Council would now monitor progress through site visits. Despite its commitment to informal resolution, it had prepared a Breach of Condition Notice in the event of future non-compliance.
• The Council was challenging the Consortium about its departure from the approved Community Trust plan. It was due to meet the Consortium in the coming month to agree changes which would get the issue back on course.
33. Mr X replied in detail explaining how the Consortium had continuously delayed since 2020. He again expressed frustration about the Council’s failure to enforce the conditions.
34. In October, Mr X sought a further update. He said it had been three months without progress and the Council should now organise a meeting to discuss a way forward. The Council replied to Mr X and referred him to a letter issued to all residents in October (below). It said a further meeting was not necessary.
35. The Council’s letter to all the residents said:
• It accepted they were disappointed with the quality of landscaping and infrastructure on the Development. It provided detailed updates on how it was addressing these issues.
• It accepted progress with the Community Trust had been slow and explained the Consortium had now set up a management company to oversee the project. The Council said it was working closely with the company to ensure progress which would take some time.
• It would continue to monitor and address any non-compliance issues on the Development and where necessary take formal enforcement action.
36. In December, the Council had a meeting with Mr X, an MP, and other residents. The parts of the meeting minutes relevant to my investigation say:
• Mr X explained the setting up of the Community Trust was now four years overdue. He said compliance matters in CT1 were still outstanding which showed the Consortium’s lack of commitment and unwillingness to comply.
• The Council explained its continued efforts to address the breaches. It said it had limited resources in 2021 due to staff turnover. It was now in a better position to support the case officer with compliance issues.
• It had given the Consortium a six-month deadline for landscaping issues in the Green Infrastructure and Biodiversity plan and would continue to monitor the situation.
• The Council accepted delays with setting up the Community Trust and an external specialist was now helping the Council with this issue.
• The Council would meet with Mr X at the end of January 2023, after its next board meeting.
37. The Record says the Council followed up the outstanding Noise Bund works after the meeting. The Consortium explained the re-planting had failed due to hot weather, but it would address this with other landscaping matters by the March 2023 deadline. The Council said it later completed a site visit and issued a Breach of Condition notice.
38. Mr X said he was unhappy was unhappy with the Council’s repeated assurances without progress, continued delays, and lack of enforcement action. He therefore lost confidence and approached the Ombudsman.

Was there fault and did it cause injustice?

39. The Ombudsman is not an appeal body. It is not our role to decide whether or when the Council should take enforcement action. That is the Council’s job. Our role is to review the process by which decisions are made and, where we find fault, to decide whether a significant injustice was caused to the individual complaining. If we consider there was no fault in the process, we cannot question whether the Council’s decision was right or wrong.
40. I am satisfied the Council acted in line with its planning and enforcement policy when Mr X first reported the planning breaches in November 2020. It acknowledged Mr X’s report and made enquiries to identify potential compliance issues. It wrote to Mr X with an explanation and sought further information to help with its investigation. Provisionally, the Council’s actions at this point were in line with its policy as set out in paragraph 14 (above).
41. The available evidence shows the Council then pursued matters until its meeting with Mr X in December 2020. It considered enforcement action for certain breaches but decided to initially grant additional time for an informal resolution. The Council was within its rights to adopt this approach as set out in its enforcement policy at paragraph 14 (above). The Council then met Mr X to discuss his concerns and sent him CT1, to keep him informed of its plans. The Council’s handling of Mr X’s reports was in line with the law as set out in paragraph 11 (above) and its enforcement policy at paragraph 14 (above).
42. The Council aimed to resolve some of the identified CT1 breaches in mid-December 2020 and the remaining by April 2021. The evidence indicates the Council did not meet its deadlines. However, the evidence shows the Council visited the Development in February and continued to monitor the compliance issues between March and September 2021, as explained at paragraph 26 (above). I do not find fault in the Council’s decision making or that it failed to follow its policy and procedures between January and September 2021.
43. The Record also confirms the Council maintained a proactive approach from September until December 2021. It ensured an audit of the Development’s landscaping and set a revised six-month deadline. In November, it updated Mr X of rectified breaches by sending him CT2. It also engaged the Consortium to set up a new management regime for the remaining issues. I understand Mr X disagreed with CT2. However, I am satisfied the Council provided a reasonable summary explaining its progress. I do not find fault in the Council’s decision making or that it failed to follow its policy and procedures between September and December 2021.
44. The evidence shows, the Council reasonably progressed enforcement matters throughout 2022, as set out in paragraph 29-32, 35 and 36 (above). The Record shows the Council made necessary enquiries, undertook site visits, monitored the Consortium’s progress, and considered whether it should take formal enforcement action. It served a Breach of Condition notice, in line with its enforcement policy for one of the breaches. It also set revised compliance deadlines for matters it was resolving informally. In my view, it has provided a reasonable explanation for its decision not to take formal enforcement action in line with its policy as set out in paragraph 14 (above).
45. The evidence shows the Council had a meeting with Mr X in April 2022 and provided updates in June and July 2022 to reassure him of progress. In October, the Council also issued a resident’s letter apologising for the delays, and explaining what it was doing to resolve the outstanding problems. In December 2022, the Council met Mr X, other residents with an MP and local councillors. It explained the reasons for perceived delays in 2021 and the progress it had made since. It also agreed to meet with Mr X in early 2023 to provide a further update. I do not find fault in in the Council’s decision making or that it failed to follow its policy and procedures between January and December 2022. We therefore cannot question the merits of the outcome.

Back to top

Final decision

46. I find no evidence of fault in the Council’s decision making or how it progressed its enforcement investigation between December 2020 and December 2022, which would allow us to question the merits of its decision.
47. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman