Summary: Mrs X complained the Council made an error when it discharged a planning condition attached to her planning permission. Mrs X says she suffered avoidable distress and would now incur unexpected time and costs in making a planning application. We have found fault by the Council but consider a symbolic payment and advice on next steps provides a suitable remedy in addition to the apology already provided by the Council.

The complaint

1. The complainant, whom I shall refer to as Mrs X complains the Council made an error when it discharged a planning condition attached to her planning permission and is now asking her to make a new planning application.
2. Mrs X says because of the Council’s fault she has suffered avoidable distress and will incur unexpected time and costs in making a planning application.

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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. 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

5. I read the papers provided by Mrs X and discussed the complaint with her. I have also considered the Council’s complaint correspondence with Mrs X and the some of the planning documents available on its planning portal.
6. I have explained my draft decision to Mrs X and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is required for any development or change of use of land and may be granted by a Local Planning Authority or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
8. Where necessary for approval of a permission a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application. The applicant must satisfy the condition and apply for it to be discharged by the authority.
9. Planning authorities may take enforcement action where there has been a breach of planning control. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) 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.

10. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under s187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.

Key events

11. The following is a summary of key events. It does not include everything that happened.
12. Mrs X obtained planning permission subject to conditions from the Council in 2021. One of the conditions required the submission and approval of a scheme of landscaping and boundary treatments.
13. Mrs X applied to discharge the above planning condition in early 2023. The Council subsequently wrote to Mrs X to approve her application. The delegated report concluded the details provided in respect of the relevant condition were acceptable and so the condition could be formally discharged. The report also set out the landscaping plan included land that was not within the residential curtilage.
14. Mrs X was visited six months later by two planning enforcement officers who advised there was an issue with her proposed work and the previously issued discharge of condition notice.
15. The Council sent a letter to Mrs X following the above site visit. The Council explained that when Mrs X applied to discharge the condition only those details which were within the red line of the planning permission could be approved. However, the plans which Mrs X had submitted included land that fell outside the red line of the full planning permission and could not be approved. The Council confirmed that any development on the area of land which fell outside the red line of the planning permission would require planning permission. The Council apologised for the inconvenience.
16. The Council also set out that no details of landscaping to the front of the property had been approved as no plans had been submitted for this area which was within the red line area of the approved planning permission. The Council sought details of any proposed landscaping to discharge the relevant condition of the planning permission for consideration.
17. Mrs X complained to the Council in early December 2023. The Council provided a response in early January 2024 and apologised for the delay.
18. The Council confirmed the plans Mrs X had submitted for hard and soft landscaping largely fell outside the red line of the approval site and included operational development. The Council explained that any development which fell outside the red line of the planning permission would require separate planning permission. The Council set out that its legal team had reviewed the case and confirmed the view that planning permission could not be granted under a condition’s submission application for development outside the original red line boundary. The Council confirmed it could not consider matters outside the original red line application site and the decision notice approving the landscaping detail should have clearly set out that approval was not being granted for the operational works and use of the land which were included in the submission. The Council provided an apology for this omission from the decision notice it had issued to Mrs X.
19. Mrs X remained unhappy with the Council’s response. The Council provided further replies to Mrs X in January and early February which reiterated the Council’s position but added that the planning team would work with Mrs X and provide advice on how the issues could be resolved.

My consideration

20. The Council accepted in its correspondence with Mrs X that there had been an error when issuing the discharge of condition notice. The Council also accepted the error should have been identified and addressed with Mrs X before determination of her discharge of condition application. This is fault.
21. But for the Council’s fault, I consider Mrs X would be in broadly the same position but would have been advised of the issues much sooner. However, I am also satisfied that it would have come as an unwelcome shock to Mrs X to be told some six months after receiving the decision notice discharging the relevant planning condition that this was faulty and some of the work she proposed required a separate planning application. I consider this will have caused Mrs X avoidable distress.
22. I note the Council has provided an apology for the error and a general commitment that its planning team would work with Mrs X and provide advice on how the issues could be resolved. The Ombudsman would welcome this action. However, I do not consider it is sufficient to provide a complete remedy to Mrs X.

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Agreed action

23. The Council will take the following action within six weeks of my final decision to provide a suitable remedy:
1. pay Mrs X £200 to recognise her avoidable distress;
2. arrange a meeting with Mrs X to discuss how the issues can be resolved;
3. provide a letter to Mrs X following the above meeting setting out the details of the discussions; and
4. provide any necessary pre-planning advice to Mrs X at no cost if she decides to submit a planning application in relation to this matter.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I have completed my investigation as I have found fault but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman