Summary: Mrs X complains about how the Council has dealt with her complaint regarding an alleged breach of planning conditions at a development next to her property. She also complained about the Council’s lack of action. We find the Council was at fault for initially closing the investigation without gathering the necessary information. This caused significant distress to Mrs X who spent time and trouble contacting the Council. The Council has agreed to several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mrs X, complains about how the Council has dealt with her complaint regarding an alleged breach of planning conditions at a development near her property. She also complains about the Council’s lack of action and delays in dealing with her complaint.
2. Mrs X said the Council has delays responding to her. She said because of this her fields that adjoin the development have flooded.

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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 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. 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 investigated

6. As stated in paragraph 4 we cannot investigate late complaints unless we decide there are good reasons. I have exercised discretion to investigate from early 2021. This is because there is evidence Mrs X has been trying to resolve the issues with the Council.
7. There is also evidence of delays by the Council in responding to Mrs X’s complaint.

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How I considered this complaint

8. I considered all the information provided by Mrs X and the Council.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Enforcement

10. 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.
11. 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.
12. 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.
13. 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)

Planning enforcement options

14. Councils have a range of options for formal planning enforcement action available to them. 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.

Council’s complaints policy

15. After someone makes a complaint to the Council, it will respond at stage one of its process within 30 days. If this is not possible, the Council will let the person know and give an indicative timescale of when a full response will be provided. This also applies when people escalate their complaint to stage two of the Council’s process.

Summary of the key events

16. Mrs X contacted the Council in early 2021. She said a developer had not complied with planning conditions. She said because of this, her field had been flooded.
17. The Council visited the site in March 2021 and contacted Mrs X shortly after. It said the field showed signed of reeds growing which indicated the land as being historically wet.
18. In April 2021, Mrs X asked to see a plan of where the soak away’s were installed. She asked for confirmation they were all built correctly and in accordance with the plans.
19. The Council said the developer said the drainage had been dealt with by a contractor who was more likely to over engineer any drainage detail rather than take short cuts. It said it needed to study the approved drawings and discuss with drainage experts.
20. The Council also said it was not possible to assess where or what had been put in. It said there was a possibility the development of the site had affected the way any natural drainage from the adjoining moor takes place.
21. The Council told Mrs X it had spoke with the company responsible for the drainage plan and the implementation of the soak aways. The company said the construction would have been built as per the plan. The Council’s own drainage consultant did not have any direct dealing with the installation, beyond approving the design.
22. In late April 2021, the Council said given that there was evidence of the general area of the ground being susceptible to being wet, it was not sure anything else could be done to prove whether the problem reported was the result of the development and not a natural phenomenon.
23. In April and May 2021, the Council tried to contact building control. This was to find out if the soak aways on the approved plans were installed in accordance with the plans.
24. Mrs X contacted the Council in September 2021. She said the Council had failed to take any action regarding her report. The Council referred Mrs X to its previous email on 20 April 2021. It said flooding of Mrs X’s field was not evidence of a breach of condition.
25. The Council contacted building control and asked it to confirm whether the proposed soak aways were checked and built in accordance with necessary building regulations. The Council continued to chase a response.
26. In May 2022, the Council’s notes stated:
• building control had provided a plan which was different to those approved under the discharge of conditions;
• the Council consulted with a drainage specialist who confirmed the details provided would not be sufficient for the condition to be considered discharged; and
• the case would need to be re-opened.
27. The Council asked the developer for updates in June 2022. It asked them to ensure any works undertaken be in strict accordance with the agreed plan. But it said if a different option was agreed, a variation to those plans would need to be submitted.
28. The Council asked the developer for a further update in October 2022. The neighbour said they had several site meetings with the drainage specialist, and they were drawing up a new plan.
29. Following the Council receiving the new plans in July 2023, it told the developer they would need to submit a new planning application which would be a variation of the original permission.
30. The developer met with Mrs X in February 2024 to put forward the new plan. Mrs X told the Council she had concerns about this.

Complaint to the Council

31. Mrs X complained in September 2021. She said the Council had failed to act. Mrs X also said the developer had not installed three soak aways which had affected her fields.
32. The Council responded in January 2022. It apologised for the delays and said:
• it had sought advice from building control who carried out inspections on site. But as it had no response, did not think it was appropriate to delay matters further;
• the company responsible for constructing the soak aways confirmed they had been constructed in line with the approved plans;
• no further correspondence was provided to Mrs X following the email in April 2021 as without suitable evidence, no further action was required, and
• if any information from building control identified that the condition has not been complied with, it would re-assess the case.
33. Mrs X requested her case be escalated the following month. She said the Council had failed to provide evidence the soak aways had been constructed in line with the plans.
34. The Council responded in July 2022. It said it was clear there had been delays and apologised. It said:
• the case has been re-opened following additional information;
• the initial decision to close the case was carried out appropriately in line with the information at that time; and
• it would ensure she received further details on the Council’s position upon completion of the current investigation.

Analysis- was there fault by the Council causing injustice?

35. Mrs X contacted the Council early 2021 to report a developer had not complied with planning conditions. The Council visited the site in March 2021.
36. It wrote to Mrs X in April 2021. It said the company responsible for the drainage plan and the implementation of the soak aways said the construction would have been built out as per the plan. The Council said given that there was evidence of the general area of the ground being susceptible to being wet, it was not sure anything else could be done.
37. Mrs X contacted the Council in September 2021 and said it had failed to act. The Council reiterated its response from April 2021 and said the flooding in her field was not evidence of a breach of condition.
38. In May 2022, the Council re-opened the case because of information received from building control. This is detailed in paragraph 26. The Council has since been in contact with the developer who was in the process of drawing up a new plan. The developer sent the plans to the Council in July 2023. The Council told them to submit a new retrospective planning application which would be a variation of the original permission.
39. Between the Council and building control, there is evidence of fault in this case regarding the initial investigation. The Council should not have closed the case without gathering all the necessary information. This is further supported by the fact building control provided evidence which led to the case being re-opened. This meant Mrs X spent unnecessary time and trouble in contacting the Council. This caused her significant frustration and distress.
40. The Council has asked the developer to submit a retrospective planning application in July 2023. We could not criticise this action. But the Council should not allow the developer to frustrate the planning process.
41. There is evidence of further fault. The Council complaints policy states it will respond to complaints within 30 days. If not, it will let the person know. I have seen no evidence to suggest the Council made Mrs X aware it would not be able to respond within this timeframe. This caused further distress to Mrs X.

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Agreed action

42. To address the injustice caused by fault, within one month of my final decision the Council has agreed to:
• write to Mrs X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Mrs X £300 to acknowledge the time and trouble she has spent contacting the Council which caused her distress;
• review the case and decide whether it should continue to pursue the retrospective planning application or consider other action it could take; and
• keep Mrs X updated on the progress.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman