Oldham Metropolitan Borough Council (24 008 444)
The Ombudsman's final decision:
Summary: Mr X complained the Council failed to properly investigate and enforce breaches of planning control he reported on a site near his home, which he said affected his privacy and caused issues with drainage. The Council took too long to decide there was no breach of planning control and did not properly explain its decision making to Mr X. This caused avoidable distress for Mr X, and for others who lived near the site and raised enforcement concerns across the same period. The Council agreed to apologise to Mr X and others, and pay a financial remedy to Mr X. It will also issue reminders to planning enforcement staff.
The complaint
- Mr X complains about how the Council considered planning applications for a development of new residential properties near his home, from 2021 to 2023. He also complains about how it considered planning enforcement concerns he reported from December 2022, after the development was built.
- Mr X says the development caused him loss of privacy because the new properties overlook his house, and issues with surface water draining into his garden. He wants the Council to ensure the developer installs proper screening and fixes drainage issues.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
- 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)
How I considered this complaint
- I considered evidence provided by Mr X and the Council, and relevant law, policy and guidance.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
What I found
Legislation and guidance
Planning permission
- Councils may grant planning permission for the development of land (including its material change of use). A council should approve planning applications that accord with policies in its local development plan, unless material planning considerations indicate they should not.
- Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation, and noise.
Outline planning applications and reserved matters
- Outline planning permission establishes the acceptability of development, subject to later agreement to details of ‘reserved matters’.
- Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.
Planning conditions
- Councils may impose planning conditions to make development acceptable in planning terms. Conditions can limit or control a grant of planning permission or the way it should be implemented.
- Councils often require evidence to show the condition requirements were met, and when this happens, the developer has to apply to ‘discharge’ the condition. Councils consider the evidence the developer provides and, if satisfied, will issue a discharge of condition notice.
Land drainage and planning
- The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in objection to a planning application, and they are an important planning consideration, we would expect to see evidence to show the Council had taken the issue into account before it made its decision. Without some evidence to show the Council considered the issue, we cannot know whether it has exercised its discretion properly.
- However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the Council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals. Remedies for these matters are available in the civil courts and tribunals.
Building control and building regulations
- Councils have a very important role in ensuring buildings are safe for people to use. Their duty is to protect the public, rather than the interests of private individuals. They have extensive powers to protect the public, ranging from checking building works for compliance with building regulations, and requiring or carrying out emergency works to make buildings safe.
- Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow and consider. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
- A certificate of building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors. Councils employ building inspectors to carry out this work.
- There have been court challenges where owners of buildings have sought to hold Council building control authorities liable for defects in building work they have inspected. The courts have decided that Council building control authorities are not liable to ensure compliance with building regulations – the duty to comply with regulations lies with the building owner.
Planning enforcement
- 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. The National Planning Policy Framework says 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
- As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all.
What happened
- In 2020, the Council approved an outline planning application for a new housing development on land behind Mr X’s house. It approved the application subject to conditions requiring more detailed plans about the layout, landscaping, surface water drainage, and a remediation strategy to address risks around land contamination.
- The developer submitted a reserved matters application in 2021. Mr X objected to the application and raised concerns about:
- the impact on his amenity due to overlooking from the new houses (as the land level of the development site was higher than Mr X’s land); and
- appropriate drainage being in place to stop flooding onto his land. He said he already had some issues with his garden being waterlogged in wet weather and was concerned about this getting worse.
- In late 2021 the Council approved the reserved matters application, including plans for landscaping. It said the developer would need to make a separate application to evidence it had met conditions around other aspects, including a full scheme for drainage on the site. The developer made this final application shortly afterwards. This included a ‘remediation strategy’ to address risks around land contamination, which included designs for a retaining wall between the boundary of the site and Mr X’s boundary fence.
- In mid-2022 the Council approved the third application and decided all conditions had been discharged.
- In December 2022, Mr X raised planning enforcement concerns with the Council. He said works on the site were complete and new residents had moved in, but the developer had not planted trees on the boundary in line with the landscaping plan. He said this affected his privacy. The Council investigated this and had repeated communications with Mr X and the developer over the next three months. In late-March 2023, the developer planted the relevant tree next to Mr X’s property. The Council decided this resolved the planning breach Mr X reported so closed its enforcement investigation.
- After the Council closed its enforcement investigation Mr X continued to raise concerns. He felt the development needed more trees as there was not enough landscaping to protect his privacy. In April 2023, the Council told Mr X it only had powers to enforce against the approved plans and could not now require the developer to plant more trees.
- Mr X made a complaint to the Council in mid-April 2023. He said:
- he raised concerns about his privacy due to overlooking from the start and the Council told him this would be addressed through planting of trees. However, only two trees had been planted, and this was not enough to protect his privacy; and
- he raised concerns about drainage from the start and the Council told him there would be suitable drainage, but this had not happened. There were now issues with surface water running from the site. Four months later he provided further information about this, saying he believed the issue came from a faulty retaining wall the developer had erected between the boundary of the site and his garden fence.
- In September 2023, the Council responded to Mr X’s complaint. It said:
- the landscaping at Mr X’s boundary was broadly in accordance with the approved plans and it had decided there was no planning breach that would justify enforcement action; and
- it properly consulted about drainage when approving the planning applications but would check with its drainage team to clarify whether the developer had properly followed the approved drainage scheme.
- In January 2024, Mr X told the Council he was unhappy with how it had responded to his complaint and wanted to escalate this further. He said:
- his garden was still waterlogged. The Council’s drainage team had visited his home in November after he raised the issues with a local councillor, but he had heard nothing further about this since; and
- he was now experiencing issues with antisocial behaviour from people climbing the retaining wall next to his garden fence.
- In April 2024, the Council responded further. It said:
- it had visited the site and decided the development was in line with the approved plans, including the drainage scheme. However, it accepted the developer had not included the design for the retaining wall as part of the boundary treatment proposal in the landscaping plans for the reserved matters approval;
- it was possible “regrading” of the land by the developer had “unintentionally altered the way groundwater moves from the site into the gardens and properties of [Mr X’s street]” but “this could not have been predicted at the time of the [approval process]”. Therefore, this is not something the Council could take any action over; and
- it would, however, continue to work with the developers to see if it could put measures in place to manage the flow of groundwater.
- Mr X told the Council he was not satisfied with its response. In July 2024 the Council issued its final complaint response. It told Mr X it had tried to work with the developer further but had no powers to take enforcement action as the development was in accordance with the approved planning permission. Therefore, it would not consider Mr X’s complaint about this further, as this was a civil dispute the Council could not involve itself with further.
- Mr X told the Council it had not addressed the antisocial behaviour issues he was now experiencing and had raised in his complaint. The Council directed him to its relevant team to report these issues, but Mr X did not follow up on this.
- After the complaint Mr X reported further enforcement concerns about the landscaping. He said a new resident on the development had removed the tree closest to his boundary (with the most impact on his privacy). The Council investigated this but decided it had no powers to take enforcement action because the landscaping condition only said trees must be replaced if they had been removed from the site. The tree had not been removed, only moved further along the boundary, so it decided the condition had not been breached.
- Mr X brought his complaint to the Ombudsman in August 2024.
What I have and have not investigated
- Part of Mr X’s complaint is about how the Council considered the initial three planning applications from 2019 to mid-2022. The law says a complaint is late if someone takes more than 12 months to complain to us about something a council has done. We cannot investigate late complaints, unless we decide there are good reasons it took someone longer to complain. Mr X first came to the Ombudsman in August 2024.
- I have not investigated how the Council considered the original planning applications from 2019 to mid-2022. I am satisfied Mr X could have complained sooner to the Council, and to the Ombudsman, if he was dissatisfied with how the Council considered the planning applications, including his objections to the applications.
- However, I decided to exercise some discretion to consider events from December 2022, when Mr X started raising planning enforcement concerns. This is because:
- Mr X was raising the issues with the Council continuously after that point. At times the Council told him investigations were ongoing so I consider he had a reasonable expectation it might act, and he should wait for the outcome of the Council’s investigations; and
- as I will explain later in this decision, there were delays by the Council in responding to Mr X’s complaint which delayed him in bringing his complaint to the Ombudsman by around eight months. I therefore decided to look back eight months further than we usually would.
My findings
The role of the Ombudsman
- We are not a planning appeal body. Our role is to review the process by which councils make planning decisions. We look for evidence of fault causing injustice. We cannot question the professional judgment of planning decision makers where this was not affected by fault. Planning enforcement is discretionary, and it is up to councils to decide whether they need to act.
- In considering an alleged breach of planning control, it is for the Council to consider whether planning rules have been breached. Where it decides a breach has occurred, the Council then must consider whether it would be proportionate to take enforcement action.
Overlooking and landscaping
- As already explained, I have not investigated the process the Council followed in its original planning approvals so will not comment on whether there was fault in how it considered this. However, for context I consider it relevant to explain further the conditions it set around landscaping when it approved the development. When the Council considered the reserved matters application, it decided landscaping was required “in the interests of visual amenity and to safeguard the future appearance of the area”. This means the intention of the landscaping plan was not to protect Mr X’s amenity from overlooking. It was to protect visual amenity, which means to ensure the development had an acceptable appearance in keeping with the local area. When the Council considered neighbouring amenity, it noted the proposed elevation distances (including the distance to Mr X’s property) were “not uncommon in an urban area and therefore not considered to be unacceptable”. The Council did not consider any conditions to protect neighbouring amenity were necessary.
- After Mr X reported the landscaping plan had not been followed, the Council worked with the developer within a reasonable timescale to ensure it planted trees in line with the approved plans. Mr X disagrees the trees specified on the landscaping plans are enough to protect his privacy. However, the Council made the landscaping plans publicly available at the time of the original approval. Mr X had opportunity to comment on and object to these plans, and then to complain if he thought the Council did not properly consider his objections.
Drainage and retaining wall
- Mr X complained about surface water drainage in his April 2023 complaint. In August 2023 he then sent photos of the retaining wall and said he thought this was faulty and was causing the drainage issues. The Council did not respond to Mr X’s complaint until September 2023, at which point it said it would consult its drainage team to check the developer had followed the approved drainage scheme. The drainage team then visited the site in November 2023, but this was not because of action by the planning enforcement team, it was because Mr X had separately raised concerns with a local councillor. Mr X did not hear further from planning about the issue so had to chase this again in January 2024. This resulted in a site visit by planning enforcement in March 2024, nearly a year after Mr X first complained about the drainage issues.
- The Council took too long to investigate Mr X’s concerns about the drainage issues and retaining wall and to decide whether there was a breach of planning control, or whether it should take enforcement action. This was fault.
- In response to my enquiries, the Council said that in May 2022, when the development was still under construction (and before Mr X complained), its enforcement team had visited the site and identified a retaining wall had been constructed without planning approval. However, the developer had already made its final application to evidence compliance with planning conditions in September 2021, which had included a remediation strategy with designs for the retaining wall. Therefore, when the Council then approved this application in July 2022 and discharged the conditions, the wall was no longer in breach of planning control.
- I accept the Council’s explanation and evidence that it decided, through considering Mr X’s complaint, that the wall was not a planning breach so it should not take enforcement action. As I have explained, it is not our role to question the professional judgment of planning enforcement officers. However, I do not consider the Council kept sufficient records of its decision making about this or properly explained it to Mr X because:
- it had no proper enforcement record for Mr X’s concerns about the wall and surface water drainage issues. It only logged an enforcement case for Mr X’s concerns about landscaping. The lack of a case reference about this in the Council’s system meant it allowed the matter to drift;
- it had no records to show it considered Mr X’s concerns and decided the wall was not a breach specifically because its design had been approved as part of the conditions discharge. In fact, its records were confusing and only said it could not find any details of the wall on the original landscaping plans for the earlier planning approvals; and
- in its April 2024 complaint response, the Council did not explain to Mr X the wall was not a breach of planning control. Again, it only said the wall was not included in the original landscaping plans. It should have explained it approved plans for the wall as part of its discharge of the planning conditions.
- This failure to investigate Mr X’s concerns about the drainage and wall in good time, keep proper records of its decision making, or clearly explain its decision making to Mr X, was fault.
- As explained at paragraphs 16 and 17, there are limits to what action the Ombudsman can require a council to take for issues with land drainage. We do not expect councils to provide a significant remedy for the consequences of poor planning decisions about drainage. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals. Remedies for these matters are available in the civil courts and tribunals. Therefore ultimately, I consider the Council was correct to advise Mr X this was a civil matter he should deal with privately. However, I have recommended actions the Council should take to improve how it investigates and responds to enforcement concerns in future. The Council should also remedy the avoidable distress caused to Mr X by its delays in investigating his concerns, and its failure to clearly explain its decision making.
Building control and building regulations
- I also considered whether the Council should have considered its building control powers, as described at paragraphs 18 to 21, to resolve the groundwater issues. The Council told us it consulted with its building control team during the complaint and found it had not been involved as the developer had used an independent approved inspector. Regardless, the courts have decided Council building control authorities are not liable to ensure compliance with building regulations. The duty to comply with regulations lies with the building owner.
Antisocial behaviour
- Part of Mr X’s January 2024 complaint was about antisocial behaviour from people climbing the retaining wall. The Council failed to address this in its April 2024 response to his complaint, which was fault, for which the Council should apologise. However, when he raised this again shortly afterwards, the Council directed him to report this to the relevant team for investigation. Given the Council’s antisocial behaviour team had received no prior contact from Mr X about this issue, I consider it was appropriate for the Council to direct him to raise this as a service request. It is open to Mr X to report this if he is still experiencing issues.
Complaint handling
- The Council’s complaints procedure says it will respond to most complaints within 20 working days. The Council took five months to respond to Mr X’s April 2023 complaint. It then took four months to respond to his January 2024 complaint, and a further two months to respond after he escalated this. The Council accepted it took too long to respond to Mr X, which was fault.
- The Council apologised to Mr X for the delay, and in response to our enquiries said its complaints team has since provided training to service areas about complaint handling and timescales. I welcome the steps the Council has taken to address this. It should also provide a financial remedy to Mr X to recognise the avoidable time and trouble caused by complaint handling delays.
Others affected
- As described at paragraph 6, we may investigate matters coming to our attention during an investigation, if we consider a member of the public who has not complained may have suffered an injustice as a result.
- Evidence provided by the Council showed there were others who lived near the site and raised enforcement concerns about drainage issues caused by the retaining wall across the same period as Mr X. I decided they were also caused distress due to the Council’s unreasonable delays and failure to clearly communicate its decision making.
- We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 31 (2B)). I have set out below the actions the Council should take to remedy the injustice caused to Mr X and others who were also caused an injustice by the Council’s fault.
Action
- Within one month of our final decision the Council will:
- apologise to Mr X for the faults identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology;
- pay Mr X £200 to recognise the avoidable distress, time, and trouble caused by delays and poor communication; and
- contact the others who lived near the site and raised enforcement concerns about drainage issues caused by the retaining wall across the same period as Mr X. It will explain the Ombudsman has found they were caused injustice by delays and failings in communication and apologise for the distress caused.
- Within three months of our final decision the Council will share a copy of the decision with planning enforcement staff to share learning from the faults identified. It will remind staff of the importance of:
- logging an enforcement case for each new concern and keeping proper records of enforcement investigations and decision reasons;
- progressing enforcement investigations in good time and keeping complainants updated during any delays; and
- clearly explaining enforcement outcomes and decision reasons to complainants.
- The Council will provide us with evidence it has complied with the above actions.
Decision
- I find fault causing injustice. The Council agreed to my recommendations to remedy this injustice.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman