Summary: Mr X complained the Council failed to take appropriate action to enforce a breach of planning control relating to the provision of footpaths on a residential development. We found fault by the Council due to delay which caused Mr X frustration. We consider the agreed action of an apology and commitment to keep Mr X advised as appropriate of progress provides a suitable remedy.

The complaint

1. Mr X complains the Council has failed to take appropriate action to enforce a breach of planning control relating to the provision of footpaths on a residential development. In particular, Mr X says the developer has not provided a footpath between the development and the village as required. Mr X says this means there is no safe access on foot between his property and the development.

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The Ombudsman’s role and powers

2. 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)
3. 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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How I considered this complaint

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

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What I found

Background and legislation

7. Planning permission is required for the development of land (including its material change of use). Councils may impose planning conditions to make development acceptable in planning terms.
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. Councils have a range of options for formal planning enforcement action available to them, including:

• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.

10. However, 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.

Key events

11. The following is a summary of key events. It does not include everything that happened.
12. A Council site visit in mid-January 2024 noted no properties were occupied at that time.
13. Mr X contacted the Council at the end of February about various planning matters. This included a report that a property on the development site was now occupied triggering planning conditions of the relevant planning permission.
14. The Council acknowledged Mr X’s report in early March and advised it would provide an update once the matter had been investigated.
15. The Council contacted the developer at the end of April about various matters including the pedestrian access into the site not being capable of being used despite first occupation having occurred. The Council advised the developer it would be visiting the site.
16. The Council visited the site in mid-May and confirmed properties were now occupied.
17. The Council provided an update to Mr X at the end of May. The Council confirmed the three access points into the site had been created. The Council noted the pedestrian and cycle paths leading from the access points were not fully operational but highlighted the development was a phased development and it would not want members of the public walking through a construction site. The Council confirmed there was a pedestrian link available for the few residents of the site to access the village.
18. The Council wrote further to Mr X about the matter at the end of July. It was noted the wording of the relevant condition as written by the Planning Inspectorate suggested the routes should be available to the public and the matter would be investigated further as a priority.
19. The Council visited the site in August and provided an update to Mr X. The Council also wrote further to the developer between July and October.
20. Mr X contacted the Council in August to say it should serve a breach of condition notice (BCN). The Council explained it was considering the possibility of enforcement action. The Council contacted Mr X in September to explain the matter was being considered and in October to explain the serving of a BCN was a legal matter and it could not provide the detail to him but it had to ensure the correct course of action in law was taken which may take some time.
21. Mr X complained to the Ombudsman in October.
22. The Council issued a BCN on 21 October setting out a breach of condition as dwellings were occupied without the relevant condition having been completed and no footways and footpaths were in place and available to the public as set out in the relevant planning permission. The notice required the construction of all footpaths on the development site and to make them openly available for public use within 28 days.
23. The Council received legal advice in December and is acting in accordance with that advice.

My consideration

24. 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.
25. Based on the information provided, I consider there was some avoidable delay between Mr X’s report at the end of February and the Council contacting the developer about the particular issue in April. There was further delay following the May site visit (which confirmed some dwellings were occupied) and the issuing of a BCN in October.
26. When taken together, I consider this delay constitutes fault. I am satisfied Mr X has been caused a degree of frustration as a result although I have considered that the Council was in contact with Mr X during this period.
27. Due to the ongoing nature of the enforcement case, there is a limit to the information I can set out in this statement. However, the Council’s legal advice provides cogent reasons for the apparent lack of action following the expiry of the BCN deadline. The Council is entitled to rely on the legal advice it has received on the matter.

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Action

28. The Council will take the following action within one month of my final decision:
1. provide a written apology to Mr X for the delay between his report at the end of February of a breach of planning control and the serving of a BCN in October;
2. decide what further action to take in respect of the above;
3. provide an update to Mr X with the information the Council can share at that point; and
4. ensure Mr X is kept advised of progress as appropriate with what information the Council can share until the matter is concluded.
29. 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.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. I find fault causing injustice. The Council has 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