Summary: X complained about the Council’s handling of development which had an unacceptable impact on their homes. We found no fault causing injustice in how the Council granted planning permission for the development. But we found avoidable delay by the Council in dealing with X’s reports of breaches of planning control on the development site. We also found avoidable delay in the Council’s handling of X’s complaint about the development. To put matters right, the Council agreed to apologise to X for the frustration caused by its avoidable delays and to reach a final decision on unresolved enforcement issues. The Council also agreed to make a symbolic payment of £250 to Mrs Z as representative for X, in recognition of her avoidable time and trouble caused by delays in its complaints handling.

The complaint

1. X complained about the Council’s handling of development near their homes because:

• Its decision to grant planning permission lacked transparency as information about ground levels was not readily accessible.
• It failed to investigate their reported breaches of planning control.
• It failed to follow its complaints procedure in dealing with their complaint about the grant of planning permission for and enforcement of the development.

2. X said the lack of transparency denied them an opportunity to actively participate in the planning process for a development having an adverse impact on their living conditions. And the Council’s complaint handling failures prevented any resolution of their concerns about the development.
3. X wanted the Council to compensate them for the stress and inconvenience caused by what happened. X also wanted the Council to provide planning services in line with its adopted procedures so no other residents went through the same experience.

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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. Where we find fault, we must also consider whether that 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)
6. 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)
7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended) Here, four other residents gave their written consent for Mrs Z to act for them in making this complaint. And, in this statement, ‘X’ means Mrs Z and the four other residents.
8. 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

9. I have:

• considered Mrs Z’s written complaint and supporting papers;
• talked to Mrs Z about the complaint;
• considered planning information available on the Council’s website about development of the site near X’s homes;
• considered relevant law, policy and guidance; and
• shared a draft of this statement with Mrs Z and the Council and considered any comments received before making a final decision.

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What I found

Background

Development management

10. Most development needs planning permission from the local council. Councils must consider each planning application on its own merits. They must also decide applications in line with relevant policies in their development plans unless material planning considerations indicate they should not. Material considerations concern the use and development of land in the public interest but not private matters. Examples of material considerations are traffic generation and overlooking. The developer’s behaviour, the view from peoples’ homes and potential changes to house prices are not material planning considerations.
11. Councils must publicise planning applications so people may comment on development proposals. Peoples’ comments on planning and land use matters will be material considerations. Councils must take such comments into account, but they do not have to agree with them.
12. A planning case officer may write a report assessing the proposed development against relevant policies and other material planning considerations. Any such report usually ends with a recommendation to approve or refuse the application. The courts have made clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

13. Planning policies may pull in different directions, for example, promoting new housing and protecting living conditions for existing homes. It is for the decision maker to decide the weight given to any material consideration in deciding a planning application.
14. Councils may approve applications after a developer completes a ‘section 106 agreement’ under the Town and Country Planning Act 1990, as amended. These are legally binding contracts between councils and developers linked to the proposed development. Such agreements may require the developer to pay towards new public buildings or services needed for the development.
15. When granting planning permission councils may impose conditions to make the development acceptable in planning terms. The Government’s National Planning Policy Framework (NPPF) says councils should keep conditions to a minimum. The Government’s Planning Practice Guidance (PPG) reflects the NPPF and says it is “good practice” to keep conditions to a minimum wherever possible.
16. Planning conditions may say a developer must give the council details and or a scheme of works for its approval (and then complete the approved details/works). For example, a development may include site landscaping. And a condition on the planning permission may say the developer must provide a scheme detailing the trees, shrubs, and any paths on the landscaped area/s. Councils do not need to publicise the details and so give people an opportunity to comment on them. Council officers usually consider the details and send the developer a letter approving or refusing the detailed proposals. When approving such details, councils are ‘discharging’ the relevant planning condition.
17. The PPG covers conditions about developer’s providing further details of schemes and works after the grant of planning permission. It says councils should not use conditions that unnecessarily affect a developer’s ability to carry out a planning permission or bring development into use or occupation.

Planning enforcement

18. Development without the necessary planning permission or that does not comply with a permission and its conditions, will be a breach of planning control. Councils should investigate reported breaches. But enforcement action is discretionary so, if they find a breach, councils may decide to take informal action or not act at all.
19. The NPPF says councils should act proportionately in responding to suspected breaches. When deciding whether to enforce, councils should consider the likely impact of harm to the public. They should also consider whether, if receiving a planning application, they might give the unauthorised development planning permission.
20. The Council has a Planning Enforcement Plan which references the NPPF and sets out its approach to planning enforcement (‘the Plan’). The Plan prioritises breaches potentially causing greatest harm. Construction development not in line with approved planning permission plans is a ‘medium priority’. The Plan says the Council will carry out a desktop analysis on each reported breach and may close a case finding no breach. If not closed after the initial analysis, a site visit normally takes place. The Council’s time target for a visit on a medium priority case is 10 working days. Further investigation may follow a visit before the Council closes a case. Closure grounds include a finding of no breach or that formal enforcement action is not expedient. The Plan also says that where the Council finds a breach it normally first tries to negotiate a solution without taking formal enforcement action.

Corporate complaints

21. The Council has a three stage Corporate Complaints Procedure (‘the Procedure’) which covers complaints about its services. At stage 1, the service department complained about aims to respond to the complaint within 10 working days. At stage 2, a person independent of the service department complained about aims to respond within 25 working days. If the Council cannot meet its response time targets at stages 1 and 2, the Procedure says the Council will explain its delay and give a date for its response. After stage 2, people have a month to explain why they want to go to stage 3, where a panel of councillors will consider the complaint. At stage 3, the Council arranges a hearing before the panel, which sends their response to the complainant within five working days of the hearing.

What happened

22. The Council received a planning application for development on land near X’s homes. The Council publicised the application. The Council’s officers prepared a report assessing the application (‘the Report’) for consideration by its planning committee, called the Planning Board. The Report set out proposed planning conditions should the Planning Board decide to grant planning permission. The conditions included some seeking detailed plans/schemes from the developer for the Council to approve. The Planning Board agreed the Report recommendation, which was to grant conditional planning permission on completion of a section 106 agreement.
23. It took months to complete the section 106 agreement. And, during the negotiations, the developer prepared and referred details needed by some proposed planning conditions to Council officers. The officers found the developer’s details acceptable.
24. The Council’s officers told two councillors from the Planning Board about completion of the section 106 agreement and their approval of condition details. The officers recommended revised wording for the relevant proposed planning conditions to reflect the details they had approved. The two councillors agreed the revisions. The Council issued the planning permission, including revised wording to the relevant conditions.
25. Construction work started on the site. Mrs Z contacted the Council to report a breach of planning control about the site boundary. In response, the Council told Mrs Z it had asked the developer to take remedial action and then update her.
26. About five months later, Mrs Z, for X, reported another breach of planning control about changes to ground levels on the site. In response the Council told Mrs Z about the revised wording of one condition and its approval of details. Mrs Z said people were denied an opportunity to comment on the changes. Mrs Z also said information about ground levels had been hidden in the planning documents. The Council said the changes to ground levels were not significant and did not have any harmful impact on existing nearby homes. The Council also said photographs, provided by Mrs Z, did not appear to show any significant changes to ground levels. It did not consider there was any breach of planning control and it would not take enforcement action.
27. About three months later, Mrs Z contacted the developer about surface water run-off from the site. Mrs Z said the developer admitted the run-off was caused by ground levels on the site, which then included a temporary soil mound near X’s homes, and it would mitigate any run-off.
28. About two months later, Mrs Z, for herself and X, complained to the Council. Mrs Z said the Council had not followed up her concerns about the site boundary or levels. Mrs Z also said the developer had not provided any long-term solution to stop run-off from the site. Mrs Z said these issues adversely affected X, including reducing privacy to their homes, for which they should be compensated.
29. In response, the Council asked the developer to provide information about site levels and explain how it would manage run-off. Council officers also met with the developer on site. The Council’s notes of the meeting said site levels did not adversely affect X’s homes and the developer intended to correct its error on the boundary. The Council’s notes also referred to the measures the developer had taken to deal with run-off.
30. Over the next three months, the Council was in touch with the developer and wrote to Mrs Z. The Council continued to ask the developer for both a date for the boundary works and details of site levels and long-term measures to mitigate run-off. The developer provided survey information about site levels and said it had instructed contractors to deal with the boundary during the next planting season. The levels information showed the greatest difference between approved and finished levels on the development site was about 60 millimetres.
31. About seven weeks later and three and a half months after formally complaining, the Council sent Mrs Z its stage 1 response to X’s complaint. X, dissatisfied with the response, took their complaint to stage 2 of the Procedure. Over seven months later, and after X brought their complaint to the Ombudsman, the Council issued its stage 2 response, apologising for its delay.
32. In summary, the Council’s response to X’s complaint was, on transparency in decision-making, it accepted information about levels in the planning documents was not easily accessible to people. But it had published the information on its website. And, as no significant change to levels was proposed, the Report did not need to address the issue. When X reported a change to levels, its initial officer assessment was no breach of planning control had taken place and so there was no justification for a site visit. When X formally complained, a site visit then took place that confirmed no significant change to levels or, therefore, any breach. It followed this up by securing survey details from the developer, which also showed no significant change to levels.
33. On X’s concerns about the boundary, the Council accepted the developer had not yet addressed the matter. The Council invited X to make contact if they remained concerned about the boundary so it could consider enforcement action.
34. On run-off, the Council said it had understood this was linked to construction works and the developer had mitigated the problem. The Council invited X to make contact if run-off had continued after completion of that part of the development near their homes.
35. As X had brought their complaint to the Ombudsman, they did not contact the Council again about the boundary or run-off.

Consideration

Introduction

36. We are not an appeal body. This means we do not take a second look at a Council decision to decide if it was wrong or ask if the Council could have done things differently or better. Instead, we look at whether there is evidence of fault in how a council made its decision. If we find no fault, we cannot question the resulting decision regardless of how strongly a complainant may disagree with it. And, if we find fault, we must consider if that fault affected the decision and caused the complainant injustice. (See paragraphs 4 and 5 of this statement.)
37. As a publicly funded body we must also be careful how we use our resources and so cannot always respond to complaints in the detail people might want. Rather, we conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. So my focus was whether there was evidence of fault having potential to cause significant injustice in the Council’s decision making on the issues set out at paragraph 1.

Time

38. We cannot investigate late complaints unless we decide there are good reasons (see paragraph 6). Here, X first had concerns about the development about 20 months before they complained to us. And X’s preceding complaint to the Council was made about 10 months after they had first raised concerns about the development. I therefore found X’s complaint to be a late complaint. However, personal matters affected Mrs Z’s availability to pursue X’s complaint during the 20 months. The Council also failed to meet its Procedure time targets once X made their formal complaint (see paragraphs 21 and 31). I therefore decided to exercise my discretion to consider X’s late complaint.

Transparency in decision making

39. The evidence showed the Council publicised the planning application. And X’s correspondence showed they were aware of the application and of their opportunity to comment. The application, and its many supporting documents, were published on the Council’s website. Finding information about specific issues would likely be time consuming due to the volume of papers supporting the application. It might also be challenging to identify relevant information given the naming and technical content of some supporting papers. However, having publicised the application and made the papers available on its website, the Council acted correctly. I found no fault here.
40. Having publicised the application, the Council prepared the Report to assess the proposed development. The Report followed a standard format for assessing a planning application. For example, it included a description of the development and the planning history of the site; it identified relevant key planning policies and key issues for deciding the application. It also summarised representations received in response to publicity and the Council’s consultation with other bodies about the proposed development.
41. The evidence showed that no significant changes to ground levels were proposed by the development. (And, later, none were found to have taken place (see paragraphs 26, 30 and 32).) So, given the findings of the courts (see paragraph 12), I found no fault in the Report not expressly addressing ground levels.

Planning enforcement

42. X’s three enforcement issues concerned the boundary, ground levels and surface water run-off.
43. The Plan said the Council would give people a reference number when they reported a breach of planning control. I saw no evidence the Council gave X reference numbers for the alleged breaches they reported. These failures to comply with the Plan were faults.
44. However, the evidence showed the Council acted on the alleged breaches X reported about the boundary and ground levels. On the boundary, the Council told Mrs Z, for X, within two weeks, it had contacted the developer and boundary works would take place during the next planting season (see paragraph 25). And, on ground levels, the Council also replied within two weeks telling Mrs Z, for X, it would not take enforcement action (see paragraph 26). The evidence therefore showed the Council sent timely responses to those reported breaches and updated X on its decision making.
45. The evidence did not show the Council visited the site before making its initial enforcement decisions. However, it did not need to do so under the Plan (see paragraph 20). So, while I recognised X might have wanted an early site visit and or a more thorough investigation, I found no fault in the Council’s initial decision making on these two enforcement matters.
46. Unfortunately, the developer did not carry out the agreed boundary works. So, when X later made a formal complaint, the Council again asked the developer to carry out the necessary works. The Plan provides for the negotiated resolution of planning breaches (see paragraph 20). But, it would not be good administrative practice to allow negotiations to become unduly lengthy or drift indefinitely. Here, two years had passed since the Council first told Mrs Z, for X, the developer would complete the boundary works but, they remained outstanding during our investigation. I saw no evidence the Council checked or followed up whether the developer carried out the boundary works during those two years. Rather, the evidence showed the Council only considered the matter in response to contact from X. I found the Council’s failure to monitor whether the developer complied and carried out the agreed works was fault. And, the Council’s failure to secure completion of the boundary works after two years, would have been frustrating for X.
47. X also formally complained about ground levels, being dissatisfied the Council had not visited the site but relied on the developer saying levels had not changed. In response to X’s complaint, the Council took further steps to consider ground levels. This was a suitable way to take the matter forward and the Council’s added steps were proportionate and reasonable. It took the developer about three months to secure and then send the Council survey information about ‘as built’ ground levels. However, during this time, the Council kept in touch with the developer and chased it for the information. The evidence also showed the Council later contacted Mrs Z, for X, and effectively confirmed its initial decision about no breach and no enforcement action. (See paragraphs 26, 29, 30 and 32.)
48. Overall, there was about 10 months between X first reporting their ground level concern to the Council and the Council’s stage 1 complaint response. And it was a further 8 months before the Council issued its stage 2 complaint response. I recognised this was a long-time and that X might have wanted the Council to complete a more thorough and speedy enforcement investigation. However, the Council first wrote to Mrs Z, for X, soon after she reported changing ground levels. It said there was no breach and it would not take enforcement action. The Council’s position did not change after that first reply during the following 18 months. So, while the Council might not have kept in touch with X throughout that time, I did not find the time taken caused X any direct significant personal injustice.
49. Mrs Z also contacted the developer surface water run-off from the site. There was evidence the Council might have believed the run-off linked to construction work and had been mitigated by the developer. However, X had confirmed that run-off continued after the mitigation works and they sought a long-term solution for the issue. It was not for me to say whether the run-off was a breach of planning control. However, having raised their concerns about run-off, the Council needed to reach a timely decision on the matter. I found the Council’s failure to address X’s concerns about run-off was fault. And, leaving the issue unresolved, would have been distressing for X.

Complaints handling

50. Against the Plan’s 10 and 25 working day response time targets, the Council took about five and eight months to respond at stages 1 and 2 respectively. The evidence therefore showed significant delay by the Council in handling X’s complaint. I saw little evidence the Council updated Mrs Z, for X, about those delays. And, the one extended reply date the Council gave Mrs Z was not met. I recognised the Council might have faced staff vacancies and competing demands for officers’ time. However, the delay at both stages was excessive and avoidable. Indeed, X, despite their patience, had abandoned hope of receiving a stage 2 reply (and completing the three stage Procedure) when they complained to us. I therefore found fault here. I also found that fault caused avoidable frustration to X and denied them the opportunity of an early resolution to their concerns. The fault also put Mrs Z to avoidable time and trouble in pursuing the complaint.

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Action

51. I have found fault by the Council causing injustice to X and Mrs Z (see paragraphs 46, 49 and 50). To put right the injustice to X and Mrs Z, the Council agreed:

• (within 3 working days of this decision statement) to open and, without avoidable delay, continue to a written decision, planning enforcement investigations into the alleged planning breaches reported by Mrs Z, for X, about the boundary and run-off from the site;
• (within 10 working days of this decision statement) to send the individual residents comprising X a written apology for the avoidable distress and frustration caused by its complaint handling delays and failure to conclude their enforcement concerns about the boundary and run-off; and
• (within 20 working days of this decision statement) to make a symbolic payment of £250 to Mrs Z in recognition of her avoidable time and trouble arising from the Council’s avoidable delay in handling X’s complaint.

52. The Council also agreed, within two calendar months of the date of this decision statement, to:

• review its practice and procedure for monitoring planning enforcement cases where a breach is to be resolved by a developer following a negotiated agreement. The aim of the review being to ensure either compliance with the negotiated agreement or to consider the need for any further enforcement action to resolve the breach;
• review why it did not deal with X’s complaint in line with the Procedure, including its time targets, and share any lessons learned with all complaint staff; and
• remind complaint staff of the need to and importance of complying with the Procedure, including its time targets, and the need to give reasons for delays and to provide a new (realistic) date for a response.

53. We publish guidance on remedies, which includes information about making effective apologies. The Council should consider this guidance in making the apology referred to in paragraph 51.
54. The Council also agreed to provide us with evidence it had complied with the actions set out at paragraphs 51 and 52.

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Decision

55. I found fault causing injustice in how the Council handled some of X’s reports of breaches of planning control and in its complaints handling. The Council agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman