Summary: We upheld a complaint from Mr B about the Council’s response to concerns he had about the incomplete housing development he lives on. We found the Council’s planning enforcement service communicated poorly with Mr B, including after he complained, and it lacked a clear plan to tackle the issues he raised. These faults caused Mr B unnecessary uncertainty, time and trouble. The Council accepted these findings and at the end of this statement, we set out the action it agreed to take to remedy this injustice and improve its service.

The complaint

1. Mr B complained the Council failed to ensure a housing developer completed the housing development where he lives, following his contact with its planning enforcement services from May 2023 onward.
2. Mr B said as a result, he and other residents of the development lived on a site where landscaping remained incomplete, refuse trucks could not collect waste and there were inadequate street name plates. They also had concerns about the maintenance, and safety, of trees subject a Tree Preservation Order (TPO) and a retaining wall built by the developer.

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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. 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)
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. 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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How I considered this complaint

7. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
8. I also gave Mr B and the Council an opportunity to comment on a draft version of this decision statement. I took account of any comments they made before issuing this final version.

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What I found

Relevant legal and administrative considerations

9. When a council approves a planning permission, it can impose planning conditions. These control how the developer undertakes the development.
10. If a developer fails to comply with conditions, or if they build out development in a way that is inconsistent with the approved plans, then councils can take enforcement action.
11. However, planning enforcement is discretionary and formal action should happen only when the council considers it a proportionate response to the breach of planning control. So, before taking enforcement action a council should consider the likely impact of harm to the public from the breach. Also, whether it might grant approval if the developer applied for planning permission to change the development or vary planning conditions. (see for example, National Planning Policy Framework December 2024, paragraph 60)
12. So, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking from a developer, or requesting submission of a planning application. The council can ask for the latter, by serving on the developer an Enforcement Warning Notice (EWN). This sets out what unauthorised development the council considers the developer has carried out. It will set a deadline for submission of a planning application. If the developer does not comply, then the council can take enforcement action.
13. The first step in taking enforcement action will usually be for a council to serve a Planning Enforcement Notice (PEN). This will specify the unauthorised development and set out steps the developer must take to remedy that and give the developer a timescale in which to do so. A developer can appeal a PEN to the independent Planning Inspectorate. Grounds for appeal might include if they consider any unauthorised development has become immune from enforcement. Until April 2024 this could be after four or ten years dependent on the breach. Since April 2024, most unauthorised development has only become immune from enforcement action after 10 years. However, this does not apply to any unauthorised development substantially completed by April 2024.
14. Under Section 38 of the Highways Act 1980, a developer and council that acts as a highways authority, can agree the council will adopt any roads built as part of a development. After adoption, the council will maintain the road. The agreement will therefore require the developer to build the road to standards expected by the council.
15. Building Regulations do not regulate retaining walls, unless they protect a structure such as a building. But a developer needs planning permission to build a retaining wall more than one metre high and within 3.66 metres of a highway (the term highway can include unadopted roads).

Council complaints policy

16. Where someone complains about the Council’s planning service, the Council will consider this under its two-stage corporate complaint procedure. The first stage of this, requires the service complained about to reply in writing within 10 working days. If someone remains dissatisfied and asks the Council to consider the complaint at stage two of the procedure, the Council says the service should respond within 20 working days. It says that if it will take longer to reply, it will explain why and provide a new date for its response.

The key facts

Background

17. Mr B lives on a small housing development in the Council’s area, approved by the former East Northamptonshire District Council (ENDC) in 2014. As a district council, ENDC was a planning authority only. The highways authority at the time was Northamptonshire County Council (NCC).
18. The development is on land where formerly a single house and mature gardens stood. The plans proposed access via a new road the developer would build off an adopted highway. The site had mature trees on its edge subject to a Tree Protection Order (TPO), which the developer proposed keeping. The developer set up a temporary access to the site, connecting it to a nearby road (not the road off which it proposed the permanent access). The plans envisaged this access route becoming a footpath before completion of the development.
19. When ENDC approved the development it imposed conditions on the development including that the developer, “prior to occupation”:

• should provide boundary screening to all houses in accord with an agreed plan;
• complete works to the road serving the site;
• provide a hard-standing area for refuse collection.

20. Further conditions, said the developer should:

• only carry out works in line with an arboricultural method statement designed to protect trees within the site;
• complete a landscaping scheme “in the first planting season following occupation”. If any trees or other planting died within five years, the developer should replace those.

21. Despite the conditions set out in paragraph 19, houses built by the developer became occupied in 2017 before they completed boundary screening and the access road. The developer had also not built out the hard-standing area for refuse collection.
22. The developer then found they could not build the road serving the development as drawn on the approved plans. They now proposed the access road branch at the top and split into two spurs, each with its own street name. The developer liaised with NCC and it agreed this proposal. The developer and NCC agreed a Section 38 agreement in May 2019.
23. NCC agreed the road serving the development needed to be on a steeper gradient than that it would usually approve. And because of the gradient, the developer built a retaining wall against a grassed embankment roughly opposite Mr B’s home. NCC cautioned the developer against the proposed method of construction of the retaining wall and said it would not adopt it as part of the highway.
24. The Section 38 agreement required the developer to provide roads to a standard where the Council would adopt them. Once the Council agreed the standard met, the developer then needed to maintain the road to that standard for a further two years before adoption could complete.
25. It was not until May 2023 the developer built out the road serving the development meaning residents no longer had to use the temporary access to the site. However, the developer did not complete the road to a standard where the Council considered it suitable for adoption. That remains the Council’s position.
26. After construction, residents found that because of the road gradient Council refuse trucks could not collect waste from their homes. So, they had to take bins along the route of the temporary access road, for collection from the nearest adopted highway. That too, remained the case during this investigation.
27. Before May 2023, planning enforcement officers working for the Council (and before April 2021 for ENDC) knew of the issues the developer had building out the road serving the development.

Mr B’s involvement

28. Before the roads completed, Mr B had little direct contact with the Council although he knew other residents on the site were in contact with planning enforcement and highways officers. He told me residents first priority was to have the access road built.
29. Once that completed, Mr B told me he took responsibility for all residents on discussing matters with the Council’s planning enforcement service. He became frustrated with its replies and in March 2024 made a complaint. This said that despite him having “frequent contact” with the planning enforcement service after May 2023 it had not resolved outstanding issues connected to the site. He said he wanted the Council to take a more robust approach to enforcement with the developer. In particular he wanted the Council to address the following, that:

• the roads serving the site did not comply with the approved planning permission;
• waste collection trucks could not collect from the site because of the road gradient;
• the developer had not provided fencing or landscaping in line with the approved plans. Photographs showed overgrown hedging and weed growth in areas of the site beyond the boundary of individual houses;
• the developer had damaged trees subject to a TPO, and residents had concerns about the safety of those as a result;
• the retaining wall leant, and this too resulted in safety concerns;
• the developer had not provided accurate street name plates.

30. The Council did not reply to Mr B’s complaint until November 2024, which I discuss below. But in between, in June 2024, it served an EWN on the developer. This said the developer had potentially breached planning controls by:

• changing the layout of the roads within the site without planning permission;
• failing to carry out a landscaping scheme;
• failing to provide a bin collection point;
• working too close to the protected trees.

31. The EWN said the developer should present a new planning application within 56 days to include details of:

• the road layout as built;
• provision of a bin collection point;
• the pedestrian access to the site (in place of the former temporary vehicular access);
• landscaping;
• the structure of the retaining wall;
• a new arboricultural survey of the trees subject to the TPO;
• boundary treatments “as provided”; and
• lighting.

32. The Council told us it served an EWN, and not a PEN, as it wanted the developer to present a retrospective planning application showing changes to the development from the 2014 plans. It considered it might approve a retrospective application if the developer made one.
33. I noted an email sent by a planning enforcement officer updating Mr B’s Ward Councillor around the time it served the EWN. In this the officer said they spoke to Mr B “on an almost daily basis”.
34. In August 2024 the Council trees officer visited the site and identified “a few maintenance issues that require attention”. She noted the Council’s actions in June included asking the developer to provide an up-to-date arboricultural survey. She said the trees needed a risk assessment, including a survey to assess their internal condition.
35. In September 2024, a large limb fell from one of the trees subject to a TPO, across the road outside Mr B’s house.
36. In October 2024 Mr B contacted this office, as the Council had not replied to his complaint, despite him chasing it to do so (including contacting his local Ward Councillor and MP). He told us what he knew of events since he made his complaint in March but still wanted a reply to his complaint.
37. When the Council replied in November 2024, it did not say if its reply was under stage one or two of its complaint procedure. It said the developer had now presented a retrospective planning application reflecting the changes to road and site layout since the 2014 applications. But the Council had rejected the application as invalid, because the developer had not provided enough details. The Council told Mr B it would “proceed carefully” and try to “obtain the best outcome for residents”. It cautioned that some of the changes to the site might have become immune from enforcement because of the passage of time.
38. It said the landowner (i.e. the developer) had responsibility for maintaining the trees. If they caused damage to homes that was a private matter between the landowner and homeowner. If they posed a risk to the highway then residents could report this to the Council. It said the 2014 planning permission only required the developer to replace any trees that died, or which they removed, within five years of the planning permission. This period had now expired.
39. Finally, the reply told Mr B how he could complain to this office if he remained dissatisfied. The Council told us its reply to Mr B’s complaint formed part of a backlog that had built up by November 2024.

Events since April 2025

40. We accepted Mr B’s complaint for investigation in April 2025. Around the same time, a new planning manager for the Council contacted Mr B to say the Council now considered it had allowed the developer enough time to submit a retrospective planning application. It clarified the Section 38 agreement between the developer and highways service did not extend to the retaining wall. But it would now seek advice from building control officers on its condition. Further, that it wanted a view from its trees officer on the safety of the trees subject to a TPO. It said once it had gathered this information it would decide whether to take enforcement action.
41. Later that month the Council wrote again to Mr B about the trees. It said its trees officer had inspected and found the trees in poor condition. They could not say if that arose from damage by the developer or for other reasons (such as disease). The Council said it would consider its options for making the trees safe. This email followed the Council receiving legal advice on its ability to take enforcement against the developer for the alleged damage to trees. It also followed the Trees Officer explaining that they had noted dead wood in the trees but could not say the cause for this.
42. In April 2025 the Council also received advice from its building control officers that they could not treat the retaining wall as a “dangerous structure” as it did not support a building. But the service had concern the wall could “deform and become dangerous”. So, it recommended the planning service look to ensure the developer built the wall to a “suitable design”.
43. In May 2025 the Council contacted the developer over the street plate signs serving the development. Discussion followed in July and August 2025, where the Council explained the signs were in the wrong place.
44. The Council provided an update to Mr B in July 2025, saying the Council had received a “response from contractors” who had completed a trees survey. Also, it had received “a note” from a structural engineer about the retaining wall.
45. Then, in August 2025, the developer presented a “part retrospective” planning application for the site. This sought approval for the road as built, the retaining wall, an upgrade to the pedestrian access, works to TPO trees, landscaping and street name plates. That application remains under consideration.

Findings

46. Because of the passage of time, I did not investigate the Council’s approach towards planning enforcement at the development site before May 2023. As I explained in paragraph 5 we cannot usually investigate late complaints. Clearly, any complaint the Council should have done more to ensure the development complied with planning law before this time would be late. I could find no good reasons that justified me making an ‘exception to the rule’ to investigate the Council’s decision making (or that of its predecessor) before this time.
47. However, I considered it important to summarise events before May 2023, as they provided context for Mr B’s complaint. By then, he and other residents had lived at the development site for several years, waiting for it to complete. And clearly the Council was fully aware of its incomplete state and that the developer had not built out the road serving the site in line with the planning permission.
48. I considered the position remained unchanged 12 months later, when the Council served the EWN on the developer. That document provided a summary of outstanding issues affecting the site. But it begged the question, what, over the previous 12 months had the Council done to see if the developer would address those matters without it serving the notice.
49. Unfortunately, that was not something I could answer. The Council did not deny Mr B was in contact with its planning enforcement service in the 12 months before the EWN’s service. The email of its planning enforcement officer from that time suggested his contact was regular and frequent. Nor did the Council deny having knowledge of the list of items summarised in the EWN during that time. But it could not provide any chronology of correspondence it had with the developer over those 12 months. Nor did it provide any internal file note, email or similar setting out its enforcement service’s thinking during that time.
50. I found that pattern repeated when I considered events after the Council served the EWN. The developer evidently responded to that action by putting in a planning application, I presume in similar terms to that presented in August 2025. But they did not so within the 56 days the Council asked for. The Council did not explain what it did from August 2024 (when the 56 days ran out) to press the developer. Nor indeed, what it did after November 2024 when it rejected the developer’s planning application as invalid.
51. This was not to say the Council had done nothing. Clearly, its officers visited the site several times during the time period covered by my investigation (May 2023 to April 2025), including visits from its trees officer. The EWN provided evidence the Council considered it desirable for the developer to regularise many of the incomplete or unsatisfactory parts of the development. And it suggested that it considered it essential the developer address concerns about the trees. But there was no other evidence that allowed me to find out the priority the Council considered it should give to the other matters listed in the notice.
52. This was not a criticism of officer’s judgement, therefore. Instead, it was a criticism that officers did not leave any audit trail to say what their judgement was on the merits of taking enforcement action from May 2023 onward. It should have been clear what officers’ view was on their ability to enforce against the developer taking account of the time factor (see paragraph 13). And it should have been clear what their thinking was about the expediency of taking such action, using the test of public interest explained above (see paragraph 11).
53. The lack of an adequate audit trail pointed towards a failure by the Council to take a systematic approach towards trying to resolve the understandable concerns raised by Mr B. For this reason, I found it at fault.
54. This fault caused injustice to Mr B in the form of uncertainty, which we consider a form of distress. He did not know if the Council could, or would, attempt to take formal action against the developer at any given time. He had the understanding the Council agreed the development remained incomplete and wanted to see it complete. But he did not know the extent to which the Council could enforce that, nor if it would take action to try and require that. And this followed years of uncertainty, as the developer slowly built out the roads, something the Council should have been conscious of, in its dealings with him.
55. The Council’s complaint handling in this case was also unacceptable. Mr B’s complaint represented an opportunity for the Council to get a grip on its approach towards enforcement and set that out clearly to Mr B. Yet it failed to do this. It took around eight months to reply to his complaint. It did not keep him informed of the reason for this extraordinary delay and nor did it tell him when he could expect it to reply while he waited for it to do so. The reply apparently fell under stage two of the complaint procedure (as it signposted Mr B to this office if dissatisfied). But it did not explain why the Council had not provided a ‘stage one’ reply.
56. The content of the reply also did not clearly set out the Council’s approach to enforcement, offering only vague assurance that it would try and obtain the best outcome for residents of the development. The reply also failed to address some aspects of Mr B’s complaint at all. This included the difficult situation residents found they were in with waste collection arrangements and their concerns about the safety of the retaining wall.
57. The considerations in paragraphs 55 and 56 led me to make a further finding of fault, therefore.
58. This fault compounded Mr B’s uncertainty and put him to avoidable time and trouble in pursuing his complaint.
59. I noted that since the Council answered Mr B’s complaint and we agreed to investigate, matters had moved on. The Council had sought to provide more clarity, although I noted it did not clarify its position on whether it might seek prosecution of the developer for damage to the trees subject a TPO. Nor had it passed on to Mr B the concerns of building control officers that the retaining wall may become dangerous in the future. Those two matters remained of particular concern to Mr B and other residents, given the potential risks to their health and safety.
60. But that said, I considered the latest planning application presented by the developer represented an opportunity to resolve the outstanding concerns. The proposals made by the developer would give the Council an opportunity to consider approving changes to the development site from the 2014 plans (specifically the position of roads within the site). It would also enable it to consider the issues of safety associated with the trees on site and the retaining wall. And potentially, it could also impose new conditions to address outstanding needs such as the bin store and pedestrianisation of the former temporary access route to the site.
61. It was unfortunate that it had taken so long for events to reach this point. Clearly it had always been in the developer’s hands to look to resolve these matters sooner. And I had to note that Mr B and others took a risk in moving into houses on an incomplete site. But I wanted the Council to also recognise that not having a systematic approach towards enforcement contributed to this delay.
62. I could not speculate on the potential outcome of the planning application, nor seek to influence the Council’s consideration of the same. Mr B could comment on the application and follow its progress via the Council’s publicly accessible planning portal. And he had the right to make a further complaint if he was unhappy with how the Council dealt with it.
63. So, in recommending actions I wanted the Council to take to remedy Mr B’s injustice, I avoided asking the Council to take specific measures targeted at any specific concerns he has. Instead, my recommended actions focused on the impact of the distress caused to Mr B by the Council’s poor customer service and how it could try to avoid a repeat.

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Agreed Action

64. The Council agreed my recommendations, that within 20 working days of a decision on this complaint, it would remedy Mr B’s injustice by providing the following:

• an apology to Mr B accepting the findings of the investigation. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council would consider this guidance in making the apology recommended;
• a symbolic payment to Mr B of £600. Taking account of our guidance on remedies, this comprised £300 for the avoidable uncertainty caused to Mr B by the Council’s fault, and £300 for his avoidable time and trouble.

65. In addition, the Council agreed that three months of this decision it would complete the following actions to improve its service and help prevent a repeat of its fault:

• it would issue advice to its planning enforcement officers on the importance of keeping clear records of their contact with developers and their evolving thinking on their approach towards taking enforcement action. In particular, it would advise officers to record their position if a developer failed to respond to an EWN within the deadline set in that notice. The Council could give that advice in writing or in person (say at a team briefing or training event) at its discretion;
• it would introduce clear customer service standards for communicating with those who reported planning enforcement breaches. For example, that it would keep in touch with those reporting breaches at a minimum timescale of four or six weeks, or such other time as the officer might agree with the person (I was conscious that planning enforcement investigations can often last many months for good reasons);
• it would review the time taken by its planning service to respond to complaints made over the past 12 months, to find out if those remained subject to delays. If a pattern of delay continued, the Council would ensure it had a plan of action to tackle this and monitor if this resulted in an improved customer service.

66. The Council agreed to provide us with evidence when it had complied with the above actions.

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Final Decision

67. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mr B. It agreed to take action that I considered would remedy that injustice. Consequently, I completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman