Summary: Mrs X complained about the Council’s decision not to take planning enforcement action in relation to her neighbour’s development. The Council was at fault because it approved a planning condition which was unenforceable. The Council’s inability to enforce the condition caused Mrs X disappointment, confusion and frustration, for which it has agreed to apologise. The Council also agreed to carry out a service review of practice and procedure to avoid recurrence of the fault.

The complaint

1. Mrs X complained about the Council’s decision not to take planning enforcement action against her neighbour, who had failed to carry out work in accordance with ecological appraisal.
2. Mrs X said that, because of this, the neighbour removed a hedge that was on her land and filled in a drainage ditch.
3. Mrs X said the Council also failed to notice that there were discrepancies on application plans before it granted planning permission.
4. Mrs X said the Council’s failures have resulted in a boundary dispute with the neighbour.

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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. 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)

How I considered this complaint

7. I read the complaint and discussed it with Mrs X and a planning officer. I read the Council’s response to the complaint and considered documents from its planning files, including the plans, the case officer’s report, and the site visit notes of an enforcement officer.
8. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
11. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
12. Planning applicants may be required to commission a survey by an experienced and qualified ecologist if their proposed development might affect a protected species.
13. If a protected species uses the site, the ecologist will:
• assess the impact of the development;
• recommend necessary adjustments to the plans, if possible;
• propose mitigation measures to reduce or offset any damage; and
• state whether a mitigation licence is required by Natural England.
14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, relevant, enforceable, precise and reasonable in all other respects.
15. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. 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 development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
16. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
17. A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
18. However, as 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 requesting submission of a planning application so they can formally consider the issues.

What happened

19. Mrs X’s neighbour submitted a planning application to change the use and extend an existing building to create a holiday let. Mrs X is the nearest resident, with her home situated about 50 metres from the site. Her garden’s boundary was planned to be within a few metres of the proposed building.
20. The Council’s planning case officer considered the plans and the application and wrote a report, which included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity, design and character, wildlife impacts, and flood risk and drainage; and
• the officer’s recommendation to approve the application, subject to planning conditions.
21. One of the conditions said that the development should be carried out in accordance with the recommendations of an Ecological Appraisal which formed part of the application. The purpose of this condition was to ensure conservation of local biodiversity.
22. After building work began, Mrs X noticed that the building was built closer to the boundary than had been shown on the plans. She was also concerned that a hedge on her land had been removed during the nesting season and a ditch (which might have been home to newts, a protected species) had been filled in.
23. Mrs X made a complaint to the Council’s planning enforcement office, pointing out that these works were not in accordance with the plans or the ecology condition.
24. An enforcement file was opened, and a Planning Enforcement Officer (PEO) visited the site. The PEO’s investigation found that:
• the wording and requirements of the Ecological Appraisal were imprecise and so the ecology condition was unenforceable;
• the approved plans included discrepancies, because elevations showing front and back of the building did not match roof and room layout plans;
• the ditch was a dry ditch, which was used as an overflow from a septic tank. The local internal drainage board and the Environmental Agency had approved an application to fill in this ditch.
25. The PEO went on to conclude that because of the lack of precision in the condition detail and discrepancies on the plans, enforcement action was not possible. The PEO went on to say that:
• if there was any evidence to suggest that nesting birds or protected species had been harmed, Mrs X could report what had happened to the local police wildlife officer, who had the power to prosecute breaches of the Wildlife and Countryside Act 1981; and
• though, because of the discrepancies in the plans, the exact position of the building could not be controlled, its location did not cause significant harm to the public and so enforcement action would not have been justified.
26. I asked a planning manager what might have happened to ensure the purpose of the ecology condition was satisfied. The manager said that:
• recommendations in documents referred to in planning conditions could be checked for precision, prior to planning approval;
• conditions could require precise information prior to work commencing, such as a method statement which prescribed how work will be carried out;
• the Council might devise internal procedures for planning case officers to check condition details and details of supporting reports and recommendations for precision and enforceability.
27. In response to an earlier draft of this decision, the Council explained that it is currently taking part in a service review as part of the South and East Lincolnshire Partnership, which includes three separate authorities. This work is ongoing and will take some time to complete. However, it accepts that changes to its own working practices and procedures are likely to be necessary.

My findings

Enforcement of the planning condition

28. The Council had intended to use a planning condition to enforce the recommendations of the Ecological Appraisal submitted by the applicant. I find that the wording within the Ecological Appraisal did not provide precise, clear, specific steps, methods or requirements the Council would need to enforce its condition. Councils should only impose planning conditions if they are precise and enforceable. That has not happened here, and this is fault.
29. However, by the time the matter was reported to the Council, the hedge had been removed and the ditch was filled in. In these circumstances, it is unlikely that the outcome would have been different. By this time, if there was real evidence wildlife had been harmed, this would have been a matter for the police to consider under the Wildlife and Countryside Act.
30. It is possible the fault I have found could happen again in circumstances where harm could have been avoided. Clear, unambiguous planning obligations are not only necessary for enforcement purposes, but they may also help developers causing avoidable damage to the environment. It is important councils have proper controls and effective practices and procedures to carry out their enforcement functions.
31. Mrs X was caused an injustice, because she was disappointed, frustrated and confused after being told the measures in Ecological Appraisal were considered unenforceable. Mrs X has complained about damage to her land caused by her neighbour’s development works. This is a private matter between landowners.
32. I will recommend remedies for the injustice caused by the Council from the fault I have found.

Discrepancy in the plans

33. The Council decided it could not take enforcement action when the development was built closer to the boundary, because of a discrepancy in the plans.
34. Where a discrepancy in a plan has not been noticed, we may criticise a council if the discrepancy would have:
• been obvious to any reasonable planning officer; and
• it would have been material to its consideration (i.e. it made a difference to the outcome).
35. In my view, the discrepancy is not so clear, that it would have been obvious to any reasonable planning officer, and so I find no fault. In any event, I think it unlikely the exact location of the building would have been a significant issue for a planning authority, given the distance there is between the site and Mrs X’s home.

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Agreed action

36. The Council is already involved in a service review along with other councils of the South and East Lincolnshire Partnership, and it expects this review to result in service improvements. Because this project is likely to take time to complete, the Council has agreed to undertake an interim review, aiming to reduce the likelihood the fault I found from occurring again.
37. The Council has agreed to:
1. apologise to Mrs X for its failure to ensure its planning condition was enforceable;
2. carry out an interim review its practice and procedures to ensure the fault identified in this report is less likely to occur again; and
3. report the findings of its review and any changes it makes as a result to the Ombudsman and to the relevant Council scrutiny committee.
38. The Council should provide us with evidence it has complied with the above actions in accordance with the following timescales:
1. the apology should be sent to Mrs X within two weeks from the date of our final decision;
2. the review should be completed within four months of our final decision; and
3. the updates to the Ombudsman and scrutiny committee should be made within one month from the completion of the review.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I found fault causing injustice and made recommendations to remedy that injustice and reduce the likelihood of the fault occurring again. The Council accepted my recommendations and so I completed my investigation.

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Investigator's decision on behalf of the Ombudsman