• The complaint
• The Ombudsman’s role and powers
• What I have and have not investigated
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complained about the Council’s response when she reported breaches of planning permission on a development site near her home. She also complained that the Council failed to follow due process when granting planning permission to increase the number of houses on the site. We found the Council was at fault in failing to update Mrs X and in failing to show it considered case law she referred to. The Council has agreed to apologise to Mrs X. We did not uphold the remainder of Mrs X’s complaint.

The complaint

1. Mrs X complains about the Council’s response to breaches of planning permission she reported on a development site near her home. In particular, she says the Council has failed to take action to enforce:
   • a section 106 agreement in relation to open space;
   • the construction method statement; and
   • conditions attached to the planning permission for the site.
2. Mrs X also says the Council has failed to keep her properly informed and that it did not follow due process when granting planning permission to increase the number of houses on the site.
3. Mrs X says these failings have caused distress, inconvenience and frustration to herself and other residents.

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The Ombudsman’s role and powers

4. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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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What I have and have not investigated

6. I have investigated Mrs X’s complaints about events which took place between January 2023 and August 2023 when she complained to us. I have not investigated events which took place after August 2023 because, where there are ongoing issues, we will specify an end date to our investigation which, in accordance with our guidance, should be no later than the date when the complaint was submitted to us.

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How I considered this complaint

7. I have considered all the information provided by Mrs X, made enquiries of the Council and considered its comments and the documents it provided. I have also considered documents available on the Council’s website.
8. Mrs 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 and administrative background

Planning permission

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. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
12. Government statements of planning policy are material considerations.
13. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
14. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
15. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.

Outline planning applications and reserved matters

16. Outline planning permission establishes the acceptability of development, subject to later agreement to details of ‘reserved matters’.
17. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.

Construction management conditions

18. Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by:
    • long working hours on construction sites;
    • nuisance from noise, dust, smoke and vibration; and
    • traffic from construction vehicles.
19. While construction management conditions may help lessen the harmful impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
20. Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served using powers under the Control of Pollution Act 1974.

Section 106 agreements

21. Councils may approve planning applications subject to a condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it.

Tree preservation orders

22. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as: cutting down; topping; lopping; uprooting; and wilful damage and destruction.
23. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Once a TPO is made, the Council must allow 28 days to for affected persons and the public to make representations. TPOs can only be confirmed within 6 months from the date the order was made. If the deadline is missed, the Council may issue a new order and begin the process again.

Planning enforcement

24. Councils can take enforcement action if they find planning rules have been breached. However, they should not take enforcement action just because there has been a breach of planning control.
25. 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.
26. 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 decided 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.
27. 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.

Key facts

28. The owner of land near Mrs X’s home applied for planning permission to construct dwellings on the site. The Council refused the application and the developer appealed.
29. Shortly before the appeal hearing the Council entered into a section 106 agreement with the developer in relation to public open space on the land. The Planning Inspector granted outline planning permission subject to planning conditions. The Council later granted reserved matters approval.
30. In January 2023 Mrs X contacted the Council saying works had begun on the site and there had been breaches of planning permission including the moving of plant, machinery, gravel, bricks and site accommodation onto the site with no construction management plan in place. She said the deliveries were made being by blocking the street and none of the measures set out in the tree protection plan had been implemented. The Council responded confirming it would investigate.
31. An enforcement officer (‘Officer A’) wrote to the developer asking them to confirm that development had not yet commenced. He also requested details of any work undertaken to remove or prune trees on the site.
32. Officer A then discussed the issues with the developer by telephone. They confirmed they had submitted an application to discharge the planning conditions which was awaiting consideration. The developer also submitted a construction management plan for approval. Officer A explained no work should begin on site until the pre-commencement conditions had been discharged. The developer agreed no work would take place apart from finishing off the tree protection fencing and locating the site accommodation.
33. On 17 January Mrs X requested an update. The following day Officer A wrote to her saying he had advised the developer that pre-commencement conditions must be discharged before any works took place which would be classed as commencement of development. He explained that the current works were not classed as commencement of development because these were site preparation works which were acceptable on a site which has planning permission in place. He also explained that the developer had submitted a discharge of conditions application and a construction management plan to discharge the conditions. He explained that further site setup was planned including providing a base for the site accommodation and tree protection fencing. He also confirmed he had passed Mrs X’s concerns about the trees to the Council’s tree officer and provided his contact details.
34. On 9 February Mrs X again complained to the Council saying the developer was setting up the site in a completely different way to the submitted construction management plan. This included placing the site office/welfare block in such a way that it was blocking the only fixed access point onto the site. She said deliveries were still being made from the public highway across the pavement which was unsafe and inconvenient for residents.
35. On 10 February Officer A visited the site and met with the developer. He found development had not yet begun and the site access had not yet been formed so deliveries were an issue. The developer confirmed this would alter when site access was provided. Officer A was concerned that the TPO fencing may not be adequate and took photographs.
36. The same day Officer A wrote to Mrs X explaining that the developer had been in regular contact with the Council and, in general, had all satisfied the pre-commencement conditions. He said the construction management plan remained outstanding, but officers would not have any concerns if the developer were to commence work. He explained that, as the access to the site had not yet been provided, deliveries may cause some disruption. However, there had been no breach of planning permission because the construction management plan had not yet been discharged and development had not yet commenced. Officer A also explained he had taken photographs at his site visit and would pass these to the tree officer to consider.
37. The tree officer, Officer B, confirmed to Officer A that, as no activities were currently taking place apart from setting up the site, the tree protection fences were acceptable. However, he would visit the site later in the week.
38. On 24 February Mrs X sent a further email to the Council saying building works had begun and the developer was removing trees covered by TPO’s.
39. The same day Officer B sent an email to Officer A confirming he had visited the site which had not been set up in accordance with the approved tree protection plan. He also said the tree protection plan did not align with the landscaping plan. He recommended telling the developer to stop work and holding an on-site meeting to discuss the protection plan and planned landscaping.
40. Officer A wrote to the developer asking them to stop work on site until the required actions had been taken and the outstanding conditions discharged. He said the tree officer would then carry out a further site inspection.
41. The developer agreed to stop construction work but said they would continue with drainage clearance work using hand tools. An officer wrote to Mrs X confirming the enforcement team was taking action to resolve the matters with the developer and “in due course this service will update you further”.
42. On 6 March Officer A and Officer B visited the site again. They were satisfied development had not yet commenced and the site setup was ongoing. They again advised the developer to ensure necessary conditions were discharged before construction work began. Officer B was generally satisfied with issues relating to the trees and provided Officer A with his observations and recommendations following the visit. Officer A centre the recommendations to the developer asking them to confirm their intention to comply with them.
43. On 8 March Mrs X made a complaint about the Council’s response to her concerns. She also wrote to the Officer B reporting that some trees had been removed by the developers which should have been retained and protected.
44. Officer B responded explaining he had attended a site meeting a few days previously to look at the tree work that had been carried out and the protection in place. He explained that the tree protection plan and the landscaping plan for the site did not align. Trees that were shown for retention on the tree protection plan were not shown for retention on the landscaping plan which accounted for the additional tree removals that had recently taken place.
45. The officer explained that some other trees also needed to be removed because of a damaged drain running across the site. He had assessed the trees and had agreed that, because of their species, age and size they could be replaced relatively easily in an improved landscaping plan on a two-for-one basis.
46. Officer B also explained that he had assessed the tree protection fencing and was satisfied that, with minor alterations, the layout would be acceptable to protect the trees. He confirmed he would continue to monitor the site.
47. On 14 March the developer confirmed all the tree protection fencing had now been correctly installed and provided photographic evidence.
48. The construction management plan was approved.
49. On 29 March the Head of Development Services responded to Mrs X’s complaint at stage 1 of the Council’s complaints process. He did not uphold her complaint.
50. On 13 April a further site visit was carried out to check compliance with the construction management plan. The site was closed and locked and no one was present. Officers found the fencing had been staked into the ground as recommended.
51. On 16 April Mrs X responded to the Head of Development Services raising further concerns about the public open space and the discharge of conditions. She asked why the pre-commencement conditions of the section 106 had not been complied with, specifically how the final open space would be laid out, who would maintain it in future and how it would be funded.
52. In June Mrs X complained to us. We advised her to request that the Council investigate her complaint at stage 2 of its complaints process.
53. In July the Council considered the open space management plan submitted by the developer. It wrote to them saying the plan was missing the following information: an explanation of who would be responsible for the future management and maintenance of the open space; confirmation that the open space would remain accessible to the public in future; the extent of public access; and the timing of delivery of the open space. The officer explained that, until these matters were included in the plan the requirements of the section 106 agreement had not been complied with.
54. Mrs X says she wrote to Officer B raising further concerns about trees on the site but did not receive a response.
55. The Council later granted planning permission for an additional house on the site.

Analysis

56. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.

Construction management plan

57. Mrs X says the Council has failed to enforce the construction management plan which has been breached repeatedly by the developer. She says the road has often been blocked denying residents access to their homes and heavy goods vehicles have been unloaded in the street causing danger and inconvenience to residents.
58. Officers required the developer to submit a construction management plan for approval in discharge of the conditions imposed on the planning permission. Officers explained to Mrs X that there could be no breach of the construction management plan until it was approved. They also explained that, until the plan was approved, no development could begin.
59. I am satisfied that the Council acted appropriately by requiring the developer to submit a construction management plan for approval. Officers could not take action to enforce the plan when it had not yet been approved. But they acted appropriately by requiring the developer to cease work until the plan was approved. Officers also explained that site setup did not amount to commencement of development and so was not a breach of planning permission. They also confirmed highway obstructions caused by the setup were a matter for the highways authority and not the Council.
60. I find no grounds to criticise the Council’s actions. It was not at fault.
61. Mrs X says no usable fixed access point was provided to enable deliveries to be unloaded on site as required by the construction management plan and, as a result, deliveries continued to be unloaded across the pavement.
62. The construction management plan states “during the majority of the construction period the loading of plant and materials will be carried out as per the site plan that accompanies this statement. Delivery vehicles will arrive on site and be met by a banksman who will assist the vehicle to drive or reverse into the specified areas on site.”
63. The Council has explained that the use of the word ‘majority’ recognises that there would be times when it was not possible to unload on site, particularly given the constrained nature of the site area and issues such as site access being blocked by parked vehicles. Accordingly, officers considered it was not expedient to take enforcement action over non-compliance with the construction management plan. I find no grounds to question this decision which was a matter for officers’ professional judgement.

Planning conditions

64. Mrs X says the Council failed to enforce conditions attached to the grant of planning permission in relation to tree protection.
65. One of the conditions attached to the planning permission was that the development should be undertaken in strict accordance with the details of the tree protection plan and tree works and tree protection measures set out in an arboricultural statement submitted in support of the application.
66. Officers acted appropriately by visiting the site and requiring the developer to put tree protection fences in place. They visited again to check the fences complied with the approved method statement. Officers were satisfied that the fencing was correctly in place before development began. As enforcement action is discretionary, there are no grounds to criticise the Council for dealing with the matter informally in the first instance.
67. As regards the removal of some of the trees, officers visited the site to look at the tree work that had been carried out. He explained that the tree protection plan and the landscaping plan for the site did not align. Trees that were shown for retention on the tree protection plan were not shown for retention on the landscaping plan which accounted for the additional tree removals that had recently taken place. The officer was satisfied with the works carried out. This was a matter for his professional judgement. In the absence of fault, there are no grounds to question that decision.
68. Officer B also explained to Mrs X that some other trees also needed to be removed because of a damaged drain running across the site. He had assessed the trees and had agreed that, because of their species, age and size they could be replaced relatively easily in an improved landscaping plan on a two-for-one basis. This was also a decision the officer was entitled to reach.

S106 agreement

69. Mrs X says the Council has failed to enforce the section 106 agreement in relation to public open space.
70. The section 106 agreement requires a public open space scheme to be submitted by the developer and approved by the Council before commencement of development. The scheme should include details of the timing of the delivery of the open space in relation to the completion of the houses and who would be responsible for its future management and maintenance.
71. The developer submitted a scheme and, in July, officers requested further details to confirm who would be responsible for the future management and maintenance of the public open space. This was later submitted and found to be acceptable. By the time officers requested these details the development had already begun.
72. This was fault. The Council should not have allowed development to begin until the scheme had been approved. However, I do not consider this caused Mrs X an injustice.
73. The section 106 agreement says the open space may be closed to the public for construction activities while the development is being built. So, the Council was satisfied there was no breach of the agreement. It was satisfied that action could only be taken if the public open space was not provided in accordance with the approved scheme at the time the properties were sold and occupied. I find no grounds to question the Council’s decision.

Communication with Mrs X

74. Mrs X says officers failed to keep her properly informed after February 2023.
75. The Council’s enforcement policy states that it will keep complainants informed of the progress of their complaint and whether formal action will be taken or not.
76. Officer A regularly updated Mrs X during January and February 2023. Officer B also corresponded with her during March. On 29 March the Head of Service sent a response to Mrs X’s complaint. He said the enforcement team would be asked to look into her concerns and “we will revert to you with our findings”. Mrs X replied on 16 April. She also wrote to Officer B in July raising further concerns. However, she received no further communication from the Council. This was fault.
77. The Council says officers decided in April that the required measures were in place so the enforcement case could be closed and development was able to proceed. However, they did not write to Mrs X to inform her of this. This was also fault.
78. The Council’s failure to update Mrs X caused her frustration.
79. In her letter of 16 April Mrs X did not request escalation to stage 2 of the Council’s complaints process despite being informed of this option. However, it was clear from her letter that she wanted a further response. She said she was “partially satisfied with your response, but I still have some concerns”. I have seen no evidence that the Council contacted Mrs X with a substantive response to this letter. This was fault. However, I do not consider this caused Mrs X an injustice. When she complained to us in June 2023 we advised her to ask the Council to investigate her complaint at stage 2 of its complaints procedure. She did so and the Council provided a stage 2 response.

New planning application

80. The developer submitted an application for planning permission to replace one detached house with two semi-detached houses. Mrs X says the Council should not have considered the application as a stand-alone application as it was a variation of the original planning consent.
81. I find no grounds to criticise the Council for considering the application. The developer was entitled to submit an application for planning permission to build additional houses and the Council was obliged to determine it.
82. Mrs X also says the Council was wrong to grant planning permission because an additional dwelling was in breach of one the conditions attached to the Planning Inspector’s decision which stated that no more than six dwellings could be built on the site.
83. The condition stated, “no more than 6 dwelling houses or 1000 m² of residential floor space shall be provided on the site”. The new residential floor space on site, including the new seventh house is 1033 m². The Council is entitled to exercise discretion to approve the application given that the floorspace is only slightly more than that required by the condition.
84. In response to the consultation on the new application, Mrs X told the Council the new application could not be approved because it contravened recent case law which she cited. In response to Mrs X’s complaint, the Council said her representations would be considered by the case officer and “if we deem that the applications contravene case law we will not recommend them for approval”.
85. However, I have seen no evidence that the Council considered the case law referred to by Mrs X. The officer’s report referred to comments from members of the public that the proposal would contradict conditions attached to the previously approved scheme. But the report did not specifically refer to the case law.
86. Details of how a council considered a planning application are usually found in the case officer’s report. The purpose of the report is not merely to facilitate the decision, but to demonstrate the decision was properly made and due process followed.
87. The courts have made it clear that case officer reports do not need to include every possible planning consideration, but just the principal controversial issues. However, given that Mrs X had raised the case law in her objections to the application, I would have expected the case officer to address it.
88. The leading case on the need to provide adequate reasons in planning cases is South Bucks DC and Another v. Porter (No2) [2004]. This supports the Ombudsman’s position on what we expect in case officer reports. Lord Brown stated “The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved.”
89. The Council received Mrs X’s comment that approval would be unlawful because it would contravene recent case law before it reached a decision on the application. This is a ‘key controversial planning consideration’ so we would expect the Council to consider it and keep a record (usually in a case officer’s report) of what it made of the issue.
90. I consider the case officer’s failure to specifically refer to the case law in his report was fault. However, I do not consider any personal injustice was caused to Mrs X because of this. The officer compared the new application with the previously approved scheme and was of the view that changing one detached house into two semi-detached houses would not have any additional undue impact on the character of the area, visual amenity or neighbours’ amenity over and above that of the previously approved scheme. He also considered the new proposal did not raise any highway safety concerns. He was therefore entitled to recommend the application for approval.

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Agreed action

91. To remedy the injustice caused by the fault I have found and to avoid recurrence, the Council has agreed that:
    • within one month, it will send a written apology to Mrs X for the injustice caused by its failure to update her after March 2023; and
    • within three months, it will review what has happened and decide whether any changes to practice or procedure are needed, or whether additional training is necessary.
92. The Council should provide us with evidence it has complied with the above actions.

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Final decision

93. I find the Council was at fault in failing to update Mrs X after March 2023 and in failing to respond to her letter of 16 April 2023.
94. I also find the Council was at fault in failing to provide evidence that it considered the case law Mrs X referred to.
95. I do not uphold the remainder of Mrs X’s complaints.
96. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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