Summary: Mr X complained the Council has not taken enforcement action in relation to breaches of planning control at a site near his home. We found some evidence of fault by the Council, but this did not affect its decision not to take formal enforcement action. The Council agreed to apologise to Mr X for the frustration and uncertainty caused by the fault we found.

The complaint

1. Mr X complained the Council has not taken enforcement action in relation to breaches of planning control at an application site near his home. He also complained the Council has failed to answer his questions about how it considered his reports.
2. Mr X states he has been significantly impacted by the breaches of planning control and he has been caused frustration, outrage and put to avoidable time and trouble in pursuing this matter.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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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How I considered this complaint

6. As part of my investigation I have:
• discussed the complaint with Mr X and considered information he provided;
• made enquiries of the Council and considered its response;
• had regard to the relevant legislation and guidance; and
• set out my initial view on the complaint in a draft decision statement and invited Mr X and the Council to comment.

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What I found

7. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
8. 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.
9. 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.
10. Government guidance says: “Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework September 2023, paragraph 59)

What happened

11. In 2021 the Council received a planning application (Application A) for a site next to Mr X’s home. The application sought permission to demolish an existing property and build two new homes. The Council refused the application. The developer appealed to the Planning Inspectorate.
12. In late 2021 the developer submitted an amended application (Application B) seeking planning permission to demolish an existing property and build two new homes.
13. In early 2022 the Council approved Application B. The approval was subject to pre-commencement conditions which needed to be discharged before works began on site.
14. In April 2022 the developer submitted a discharge of conditions application (Application C). As part of the application the developer provided a Construction Management Statement and an Ecology Construction Management Statement.
15. In early May 2022 works began on site. Mr X told the Council and said this was a breach of planning control because it was yet to discharge the pre-commencement conditions.
16. The Council replied to Mr X. It told him it was considering Application C and deciding the application was its priority.
17. In late May the Council approved Application C.
18. In June Mr X reported the following matters to the Council:
• the developer was not minimising the effects on neighbouring residents in line with the Construction Management Statement; and
• a hedge was removed while birds were nesting in it. The Ecology Construction Method Statements said removal should take place outside the bird nesting season.
19. In response the Council visited the site. It told Mr X the developer said the hedge was checked for nesting birds prior to removal. It also said the Ecology Statement said it was advisable for the hedge to be cleared outside the bird nesting season. The Council did not take enforcement action against the developer.
20. In July 2022 the Planning Inspectorate allowed the appeal of Application A. The Inspector’s decision was subject to pre-commencement conditions. The Developer submitted Application D to discharge the conditions.
21. In August 2022 the developer began works on garage foundations approved as part of Application A. Mr X told the Council because it was yet to decide Application D.
22. In response the Council told Mr X it was considering Application D. It said it had already substantially discharged most of the conditions as part of Application C, however the developer was required to re-submit the details again following the Planning Inspector’s decision. It said it was not proportionate to take enforcement action at this time.
23. In September 2022 the Council approved Application D.
24. Mr X complained to the Council about its handling of his reports at both stage one and two of the Council’s complaints procedure. He said the Council failed to act in relation to any of the breaches he had reported and favoured the developer.
25. The Council’s complaint responses said:
• it has considered the breaches reported by Mr X and concluded it was not expedient to take enforcement action.
• it would have been disproportionate to take formal enforcement action against the developer for commencing works before planning conditions were discharged. This is because the developer had submitted Applications C and D which were being considered by the Council when Mr X made his reports.
• it was unfortunate the developer removed the hedge during the bird nesting season. The Ecology Statement said it would be advisable to remove the hedge outside of the nesting season. It would be disproportionate to take enforcement action requiring the developer to reinstate the hedge for it to then be removed again, as per the approved plans. If protected wildlife was harmed it is a matter for the Police.
• the same expediency test would also be applied to breaches of the Construction Management Plan such as dust generation. In the first instance it would address this informally.
• the Council will use formal enforcement action when it is expedient to do so. Taking enforcement when appropriate reinforces to developers the importance of complying with planning conditions.

The Council did not uphold Mr X’s complaints.

26. Unhappy Mr X complained to the Ombudsman.
27. In response to our enquiries the Council said:
• No formal report was received from the developer confirming an ecologist checked the hedge before it was removed in 2022.
• it dealt with all breaches reported but did not consider it was expedient to take enforcement action nor did the alleged breaches cause harm sufficient to meet the threshold to take enforcement action.
• it has been balanced in its approach and has acted in accordance with planning enforcement legislation and guidance. It has not favored the developer, as claimed by Mr X.

Finding

28. We are not a planning appeal body. Our role is to review the process by which the Council makes its decisions. We look for evidence of fault in the decision-making process, and then consider whether any fault caused a significant injustice to the individual complainant.

Works commencing at the site prior to pre-commencement conditions being discharged

29. Mr X is correct that works starting at the site before pre-commencement conditions were discharged is a breach of planning control.
30. The Council has confirmed that it was considering applications to discharge the pre-commencement conditions when Mr X made his reports of May and July 2022. It decided it would not be proportionate to take enforcement action while it was deciding the applications. Mr X disagrees with this decision, but I am satisfied the Council has regard to the relevant matters when considering the breach and that its decision is in keeping with government guidance stating enforcement action should be proportionate.

Breaches of Construction Management Statement and Ecology Statement

31. The developer removed the hedge during the bird nesting season, which Mr X say is contrary to the approved Ecology Statement. The Council decided it was not expedient to pursue this matter as removal of the hedge was permitted in the approved plans. Therefore, any enforcement action requiring the developer to reinstate the hedge only for it be removed a few months later, would not be proportionate. Again, I am satisfied the Council had regard to the relevant matters and that its decision is in keeping with government guidance.
32. I note Mr X says the Council has provided no evidence a qualified ecologist examined the hedge before it was removed, as claimed by the developer. I agree it has not done so. However, this does not affect my view the Council properly considered the expediency of taking enforcement on this matter. This is because the developer had already removed the hedge when the Council considered this matter. And so, the issue for the Council to consider was whether it was proportionate to take enforcement action requiring the developer to reinstate the hedge.
33. Mr X also reported breaches of the Construction Management Plan to the Council in May and June 2022. The Council visited the site and has provided photographs of its visit. The Council has not provided any file notes detailing conversations between it and the developer or explaining what informal action it has taken. We expect the Council to keep clear records of key actions such as this. Failure to do so is fault.
34. Nevertheless, I note there were no further significant reports of breaches of the Construction Management Plan and so it would appear the Council’s visit was sufficient to ensure the developer complied with the plan.

Other matters

35. Mr X says the Council failed to answer his questions about what action it has taken in response to his reports of breaches of planning control. He states the Council have not told him whether it took any informal or formal action against the developer in relation to the breaches he reported.
36. I consider the Council has been clear in its communication with Mr X that it has not taken any formal enforcement action in response to his reports and explained its reasons for not doing so.
37. However, it has not been as clear about what informal action it took in response to his reports. This has caused Mr X uncertainty and frustration.

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Agreed action

38. Within one month of my final decision the Council will write to Mr X apologising for failing to:
1. properly respond to his enquiries about what informal action it had taken and;
2. clarify if the developer provided evidence a qualified ecologist inspected the hedge before its removal.
39. Within three months of my final decision the Council should:
• Send a guidance note to all enforcement officers reminding them to record details of informal action they take on cases so there is a clear record of what has happened.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. The Council has agreed to my recommendations which address the injustice caused to Mr X by the fault I found.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman