Summary: There was no fault by the Council. It served a breach of condition notice but has properly considered its decision not to enforce the notice.

The complaint

1. Mr B complains that the Council failed to take effective action to rectify a breach of planning permission. It took too long to issue a breach of condition notice and then did not enforce the notice.
2. Mr B says that as a result of the Council’s shortcomings his garden is overlooked and becomes waterlogged.

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The Ombudsman’s role and powers

3. 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)
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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What I have and have not investigated

5. 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)
6. Mr B complained to the Ombudsman in July 2024. This means that I can investigate the Council’s actions from July 2023.

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How I considered this complaint

7. I considered the information provided by Mr B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all the comments I have received before issuing this final decision.

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What I found

The law and guidance

8. 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.
9. 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)
10. This means that 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.
11. 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.
12. Councils have a range of options for formal planning enforcement action available to them, a breach of condition notice. This requires the applicant to comply with the terms of planning conditions already decided necessary for approval of the development.

What happened

13. Mr B lives in a residential area. To the back of his home and garden are allotments. The access track to the allotments runs alongside his rear boundary. In 2016, the Council granted planning permission for a new allotment car park and access track. Following complaints from Mr B and other residents, the Council found that these had been constructed using a different material and higher than the planning permission allowed.
14. Following this, the Council received a number of planning applications which included details of changes to the unauthorised track. The Council granted a variation of the scheme in 2019, but found the work was still not constructed in accordance with the plans. The Council issued a breach of condition notice and this resulted in a further planning application.
15. This application, submitted in 2021, originally was to keep the access track at the same height but increase the height of the fencing. The Council asked the applicant to amend the scheme and they submitted amended plans. This would see the access track lowered to a similar level it once was. The Council’s report to the planning committee says that this will minimise overlooking into the neighbouring gardens. The unauthorised track had also been made with an impermeable layer which had an impact on drainage. The Council had consulted its drainage engineers, and the new application would see this removed and made up with a permeable base.
16. The Council’s report specifically mentions that the unauthorised track allows views into Mr B’s garden. The new track would be lower and the Council considered the impact of the lower track on privacy acceptable.
17. The Council granted the fresh planning permission in July 2023. The permission included a planning condition that prior to the installation of the new access track, the Council will need to approve a plan showing the site levels and the proposed levels of the new track. The development should thereafter be carried out in accordance with the approved details.
18. The finished height and levels were agreed in December 2023 at a site meeting between the contractors and the applicant. The Council agreed that once the excavation had started on site and the levels pegged out, it would re-visit the site to agree the levels and discharge the planning condition.
19. The Council re-visited the site on 23 January 2024 and it agreed the levels shown by the applicant and its contractors on site.
20. At the beginning of February, the Council received further reports that the track appeared to have been laid higher than approved. The Council met with the applicant and the contractors on site on 8 March and it was confirmed that the track had been laid too high in some sections. The applicant agreed to rectify the breach and the Council said it would revisit the site to check this.
21. Mr B complained to the Council in March 2024, that the access track had not been lowered and the Council had failed to ensure that the work would be carried out in accordance with the planning permission, nor had it taken enforcement action. Mr B also said that the Council officer had told the planning committee that he would oversee the work to make sure that this was now done in accordance with the plans. The Council explained to Mr B what it had done so far and that it was not required to be onsite to oversee the work and it did not have to monitor the site in that way.
22. The Council visited the site again later in March and found that rather than lower the track the contractor had scraped out material between the track and the fence. At a further visit on 9 April, the Council found that a three-metre section closest to Mr B’s house was still too high and had not been lowered as promised.
23. The Council served a breach of condition notice in April 2024. The notice said that the track had been laid higher than approved. The notice required the applicant to remove a section of the access track close to Mr B’s home and replace it with the lower track and to grade the surface so that it falls away from the houses in accordance with the planning permission. The notice gave three months for the applicant to comply.
24. The Council visited the site again in June 2024. It decided not to enforce the breach of condition notice. The Council’s enforcement withdrawal report sets out the reasons for this decision. The report describes the history of the site and that a three-metre section of the track directly adjacent to Mr B’s property still had not been lowered. The applicant’s position was that if it lowered this part of the track there would be a sudden drop in the track and this could potentially impact on the vehicles coming to and from the allotments.
25. The Council took this into account and also that the current level although higher than authorised, still had the track at 1.7 metres below the fence line, and this was sufficient to protect Mr B’s privacy. On this basis it decided not to enforce the breach of condition notice.
26. The Council’s report also mentioned that concerns had been raised about the impact on drainage of the higher levels and that impermeable surface was used on the track. It had considered a drainage scheme to include a soakaway but the site could not support this. Instead it had ensured that the applicant had installed a natural percolation in accordance with the planning permission. It added that the short section of slightly higher track does not give rise to any drainage issues. In addition, the applicant has added a soakaway in the lower section to encourage better drainage.
27. In July 2024, the Council told Mr B that it would not take any further action. It said that the track has not been laid in strict accordance with the plans over a section of around three metres but the work that has happened is such that the track is now 1.7 metres below the top of the fences along Mr B’s boundary, and so this prevents overlooking into the residential properties. The Council says that the condition aimed to minimise overlooking and this has been achieved.
28. Mr B has also told me that the track is above the level of the gravel boards that sit at the base of his boundary fence. As these are submerged he is worried his fence will get damaged.

Analysis and findings

29. I can see that Mr B is very disappointed with the Council’s decision not to enforce the notice. The level of the new access track was subject to a planning condition because the Council had legitimate concerns about the impact on privacy. It also had originally not accepted that the applicant could make the fencing higher to deal with this.
30. However, 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.
31. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
32. I have considered the steps the Council took to consider the issue, and the information it took account of when it decided not to enforce the breach of condition notice.
33. Although Mr B might have expected the Council to enforce the notice, enforcement action is discretionary and the Council has to consider the government guidance that says it should act proportionately. This means that it has to take all the relevant factors into account including the impact of the applicant lowering the track, and the impact on privacy of the short section of the track at the higher, unauthorised level. The Council’s enforcement report shows that it has properly considered all these factors in making its decision.
34. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.
35. There was also no delay in the Council’s action. It agreed the levels on site and acted in good time when it understood that the applicant had not installed the track in accordance with the planning permission. In line with government guidance, the Council tried to remedy the problem informally before serving the breach of condition notice. The Council had to allow the applicant three months to lower the access track in line with the notice. Once this had expired the Council considered the situation and made a decision without delay.
36. I understand Mr B’s concerns that his fence will be damaged, however, the Council is not responsible for damage caused. This is a private issue between Mr B and applicant.

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Final decision

37. I have completed my investigation. There was no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman