Summary: Mr X complained about the Council’s handling of the planning and enforcement process for a path serving an approved development near his home. He said as a result his privacy has been affected, and he may experience water overflow into his garden. We found fault in how the Council considered amended plans to increase the height and location of the path in early 2023 and how it communicated with him. The was no fault on other matters complained about. The Council will apologise and make a symbolic payment to acknowledge the impact Mr X has experienced.

The complaint

1. Mr X complains the Council constructed, or allowed a developer to install, a footpath next to his property to give access to an approved development. He said it failed to properly consider the impact the path would have on his property and residential amenity in the process. This was because:
• the ground levels had been raised by around three feet for the path causing drainage concerns and a loss of privacy despite the existing fence;
• it failed to properly consider and respond to his planning enforcement concerns; and
• the Council delayed dealing with his contacts and complaints and did not determine who owns the fence to his garden
2. Mr X would like the Council to raise his fence with concrete or replace the fence, so water does not overflow into his garden and he has his privacy back. He would also like a remedy for the delay in its response.

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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 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
7. 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)
8. The law says we cannot normally investigate a complaint when someone could take the matter to court. (Local Government Act 1974, section 26(6)(c), as amended)
9. 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(1), as amended)

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What I have and have not investigated

10. We expect people to complain to us about something they consider a council has done within 12 months of them becoming aware of it. Any complaint brought to us after 12 months is a late complaint.
11. The Council granted the main planning permission for the development over four years ago, in 2021. There was a further application to discharge the condition relating to the site levels later that same year, which was also granted.
12. The building has been fully operational since spring 2023. Mr X complained to us in October 2024. Therefore, any part of the complaint before October 2023 is late.
13. However, I have found it appropriate to exercise my discretion to investigate Mr X’s complaint from 2023 onwards. This is because he has continued to raise his concerns with the developer, contractor and the Council since, and there were delays in the responses he received. This therefore includes the Council’s consideration of the non-material amendment of the path and ground levels in February 2023.

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How I considered this complaint

14. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
15. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Planning permission

16. Councils may grant planning permission for the development of land (including its material change of use), subject to conditions.
17. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
18. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
19. Planning considerations do not include things like:
• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

Enforcement

20. 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.
21. 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.
22. 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.
23. 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 60)

What happened

24. This is not intended to set our each and every events which occurred, but a brief summary of the key points relevant for my investigation.
25. In Autumn 2022 works started next to Mr X’s home to build a pathway towards a new building being erected nearby. The path had been approved as part of the planning application in 2021. A condition was in place there should be no excavation, or raising or lowering of ground levels within the root protection area of retained trees next to Mr X.
26. The Council received an amended application for the path from the developer. This proposal included to move the path slightly due to existing trees and for parts of the path to be raised due to roots from the trees and to ensure a level path for access.
27. Mr X said the ground level was raised for the path and this was not on any of the plans. He had previously told the Council, on behalf of himself and his neighbours, about the issues around raised ground levels. The concern being the gardens which were already susceptible to flooding would become worse.
28. The Council said the development was continuing under the approved plans, and a flood risk assessment including mitigation measures were presented at planning stage for the original application.
29. Mr X was unhappy with the Council’s response and was also in correspondence with the organisation in charge of the development.
30. Mr X said he spoke to the builders of the path in December 2022 who advised his fence should be replaced with a concrete section at the bottom to minimise flood risk and raise the height. Mr X put this to the Council saying it had responsibility for the fence in early December 2022. At the end of January 2023, he was told the Council would contact him. He chased again at the end of March 2023 and was told he would get a response within a week.
31. In February 2023 the Council considered the developer’s proposed amendment to the path next to Mr X’s property. It found this to be a non-material amendment and approved the application. Ground levels were shown, but there was no reference to any effect or impact on amenity to nearby properties, including Mr X’s.
32. In April 2023 he raised his concerns with his local Councillor who got a response from the Council a month later saying it would take it up with the organisation in charge of the development and its contractor, and provide a response.
33. In October 2023 the Council said it would chase the organisation again.
34. Mr X did not hear from the Council so he made a formal complaint in December 2023, saying the Council failed to respond to him, and the path’s raised ground level will cause water to run off towards his fence and impact his privacy.
35. The Council’s response upheld the complaint about lack of communication, but said the primary complaint is about the building work being undertaken by another organisation, and even if Mr X had clarified the damage to his fence or property, it would be a matter for him to take to Court.
36. In February 2024 the Council told Mr X it had granted the garden licence to him so keeping the boundary is Mr X’s responsibility, not the Council’s. It also said it “will continue to help where possible but this is not suitable for the complaint process”.
37. During our enquiries the Council provided documentation to show it investigated a similar planning enforcement complaint from another neighbour near the development in early December 2021. It considered the complaint and decided there was no breach. It provided a copy of the school plan showing the height of the path.
38. The Council said a case officer and enforcement officer visited the site after Mr X made his complaint. A member of the team who led on the project regularly attended the site and confirmed they visited and reviewed the path after Mr X’s complaint, although they did not meet with him.

Analysis and findings

Mr X’s drainage concerns

39. Mr X is concerned about water flow towards the garden and fence. No damage has yet been caused. If he considers such damage, this would be a private civil matter between him and the party he considers is responsible for that damage. This would normally be the organisation responsible for the development, so we cannot investigate (see paragraphs seven and eight).
40. Only insurers or the courts can determine legal liability for property damage. It would be reasonable for Mr X to take the matter to court because it can settle legal liability and make a binding order on the parties involved, whereas we cannot make such findings and can only make recommendations.
41. Mr X may wish to seek independent legal advice on this issue.

Fence ownership

42. Mr X sought clarification from the Council over who own and retain responsibility for the fence running alongside his property and the path which has been developed.
43. The Council was consistent in its responses that it was Mr X who was responsible for the fence.
44. Issues about ownership or responsibility for a fence is not something I can consider, nor is it relevant for the planning process. Such issues are for the courts to consider if there is a dispute. The Council clarified it was Mr X who retains the rights to the fence.

The February 2023 non-material amendment decision

45. The Council was entitled to reach its view on the developer’s application to amend the plans for the path next to Mr X’s property. In doing so, it decided it was a non-material amendment and therefore did not require any consultation or notification to nearby neighbours. The proposal included ground levels and the plans for the amendment.
46. I have considered the Council approval of the amendment proposal. The plans and decision show the rationale for the need of the amendment, which was largely due to the retained trees and roots in the area could not be excavated and to create level access for users. However, there is no evidence to show the Council had regard to the effect of the change which includes the impact on neighbouring amenity from the increased ground levels. In areas next to Mr X’s property this reached around three feet.
47. I found this to be fault by the Council. I acknowledge the development was a significant development and this matter may have seemed insignificant at the time.
48. However, on balance I am satisfied, if the Council had properly considered the impact on Mr X’s residential amenity, it would have been clear an increase of the path level along parts of his garden would result in overlooking. This would be into his garden and some part of his property from users of the path. This is because his existing six-foot fence would in effect only be 3 feet tall in comparison to the raised path alongside parts of his property.
49. Normally, where development such as a path is necessary and needs to be raised, I would expect a planning authority to consider what mitigations are necessary to limit the impact the development will cause a neighbour. This is often through some form of screening or increasing the fence height to maintain the original, or an acceptable impact on privacy.
50. In Mr X’s case, this may have led to revised proposal, works to his fence, or other screening to be put in place to mitigate the impact on residential amenity.
51. However, Mr X continues to experience an impact on his residential amenity as a result of the Council’s fault and the increased height of the path. The Council should offer Mr X a symbolic payment to acknowledge the impact its fault has had. Mr X can then use this to help facilitate any mitigations he sees fit.

Planning enforcement

52. Mr X raised concerns to the Council over a significant period of time. He said the development had not been built in line with approved plans relating to the ground levels of the path next to his property.
53. The Council told Mr X it had already considered a complaint from another neighbour. It had found enforcement was not appropriate. It also told the Ombudsman it or the developer had visited the site after he had raised his concerns.
54. I acknowledge the Council considered a separate complaint from another neighbour about the impact the path had on them. On some occasions, it may therefore be appropriate for a council not to reinvestigate an enforcement concern from another neighbour, such as Mr X. Also, its approach may have been appropriate if this only related to his drainage concerns.
55. However, Mr X’s and the other neighbour’s properties were a substantial distance apart, and only Mr X’s property had been impacted by the changed ground levels as a result of the approved amended plans in February 2023. I found these two planning enforcement concerns were therefore not the same and required separate considerations.
56. I have seen no evidence of the Council’s visits to consider all Mr X’s specific concerns. Nor did it provide him with an outcome after such a visit. I have therefore found fault by the Council. I would expect to see brief records of such a visit, its views, and a notification shared with Mr X without delay.
57. However, regardless of this, the enforcement process can only consider whether the path was developed as set out in the approved plans. This was the amended plans in February 2023. Based on the evidence, it appears to me the path was developed in line with these plans, and no enforcement action could be taken. Any outcome of an enforcement investigation would therefore not have led to a different outcome.

Communication with Mr X

58. The Council accepted it had failed to reply and communicate with Mr X about the path as it should have done which caused delays and some frustrations for him. It apologised.
59. I agree the Council was at fault for some delayed communication and its failure to respond to some of his concerns and questions. It is clear this caused Mr X some uncertainty and frustration as a result. Considering the fault I have identified in this case, I am satisfied an apology from the Council is appropriate to acknowledge the impact its poor communication caused him.

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Action

60. To remedy the injustice the Council caused to Mr X, the Council should, within one month of the final decision:
1. apologise in writing to Mr X to acknowledge the injustice its faults caused him;

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

2. pay Mr X £500 to acknowledge the impact he has experienced on his residential amenity and help him take steps to mitigate this as he sees fit.
2. Within three months of the final decision the Council should also:
1.  
2.  
3. remind officers in its planning enforcement team to consider each reported planning enforcement concern it receives on their own merits. This includes circumstances where an enforcement decision has been made for other neighbours affected by a development if the alleged concerns or impact are not the same.
3. The Council should provide us with evidence it has complied with the above actions.

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Decision

63. I have completed my investigation with a finding of fault by the Council which caused Mr X an injustice. The Council will apologise and make a symbolic payment to help Mr X to take steps to mitigate the impact its fault caused his amenity.

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Investigator's decision on behalf of the Ombudsman