Summary: We have completed our investigation into how the Council dealt with Mr X’s reports of planning breaches and his complaint. This is because we find no fault in the way the Council made its planning enforcement decisions and handled Mr X’s complaint.

The complaint

1. Mr X complained about the Council’s decision not to take planning enforcement action. Specifically, he complained the Council:
1. did not confirm which of the many alleged planning breaches it agreed were breaches;
2. failed to enforce planning conditions;
3. ignored key planning conditions when it used its discretion not to enforce breaches;
4. invited the developer to submit irresponsible amendments and non-material amendments which undermine the planning process; and,
5. failed to respond to all parts of his complaints, and did not provide clear and consistent rationales for its decisions.
2. Mr X said the Council’s actions have undermined the planning process and public trust in that process, meaning the public has been misled. Mr X said the Council’s actions have had negative effects on property prices, the ecology, and wildlife. He said this has meant residents cannot sell their homes.

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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. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)

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What I have and have not investigated

7. As I have said above, we cannot investigate late complaints unless we decide there are good reasons.
8. In December 2024, Mr X complained to the Ombudsman about how the Council dealt with his reports of planning breaches which he had been making for two years. In March 2024, Mr X gave the Council a list of alleged planning breaches.
9. I consider it reasonable to investigate the Council’s actions from March 2024. I do not consider there is any merit in investigating matters before then. I do not consider there are good reasons for us to exercise our discretion and consider issues more than 12 months before Mr X complained to us.

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How I considered this complaint

10. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
11. I considered the relevant legislation, statutory guidance, and policies, set out below.

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What I found

What should have happened

Planning enforcement

12. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
13. 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.
14. 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.
15. 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 December 2024, paragraph 60)

Non-Material Amendments

16. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
17. If the Council decides the changes are ‘material’, it may require the whole or part of the process begins again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process, but only if:

• it considers the procedural fairness of doing so. It should consider whether it might deprive any third party of the opportunity of making representations they might want to make; and,
• the nature of the application remains the same, so the amended proposal is still substantially the same as the original.

18. This type of amendment is known as a non-material amendment. There is no statutory definition of what is or is not a non-material amendment. The question is one of fact and degree and is a matter for the Council to decide.
19. Councils may also decide that very minor changes are so insignificant, they require no procedural action.

The Council’s planning enforcement plan

20. The Council’s planning enforcement plan says the following. The emphasis (in bold) is the Council’s emphasis:
• “Local Planning Authorities must consider investigating all breaches of planning control received. However, the actions to be taken for such investigation and, in particular, the power to take formal enforcement action is discretionary and must be reasonable and proportionate.”
• “… it cannot be assumed that every alleged breach notified to the City Council will result in a formal enforcement investigation/action being undertaken. For example, it may be that the issues raised in the breach report do not constitute development or are a minor breach of planning law resulting in no material harm, or where there is no public benefit in enforcement action being taken.”
• “…where a breach of planning control has been identified as having occurred, seeking an informal negotiated solution will be preferred to the taking of immediate formal enforcement action.”

What happened

21. Mr X lives near a site that is being developed. He complained to the Council about planning breaches. In March 2024, Mr X gave the Council a list of 28 alleged planning breaches.
22. In May, the Council told Mr X it would raise some of the alleged breaches with the developer. These breaches were specific issues the Council considered to be of particular concern and wanted to discuss with the developer. The Council said it would invite the developer to engage with the Council to resolve the issues.
23. In September, Mr X complained. He said the Council had not told him its rationale for only raising part of his allegations with the developer. He said the Council told the developer they could apply for non-material amendments, and Mr X found this offensive. He said residents do not have a voice in the non-material amendment process.
24. In its response, the Council said it had investigated all breaches in line with its planning enforcement plan. It said planning enforcement is discretionary. It said it had discussed significant issues with the developer, and work was planned to address those issues.
25. The Council said there was an ongoing planning enforcement investigation. It said it had consulted with colleagues and specialists. It said it had visited the site numerous times. The Council said the developer had applied for planning permission to vary some planning conditions. It said the developer had not applied for non-material amendments.
26. Mr X then complained to the Ombudsman.

Analysis

Mr X’s allegations of planning breaches

27. Mr X complained the Council did not confirm which of the many alleged planning breaches it agreed were breaches (part a of the complaint).
28. In the Council’s complaint investigation, it told him on the whole what action it had taken about his 28 reported planning breaches. But it did not provide a breakdown of its consideration of each of the alleged breaches.
29. It is not necessarily proportionate for a council to respond to each individual item on a long list of alleged breaches. I do not find the Council at fault for not confirming which allegations it found were or were not breaches. I find the Council appropriately and proportionately responded to Mr X’s reported breaches in its complaint response.

Enforcing planning conditions

30. Mr X complained the Council failed to enforce planning conditions (part b of the complaint).
31. Mr X accepted that planning enforcement is discretionary, but he disagrees with the Council’s decisions and actions.
32. I find the Council tried resolve the planning breaches it found through the planning process, where the developer applied to vary the planning conditions. The Council refused this application. Since then, the developers have gone into administration.
33. The Council was entitled to make the decisions it did about the planning breaches and how to address them. The Council was entitled to try to address breaches through the planning process. As I set out above, if there was no fault in how a council made its decision, we cannot question the outcome.
34. I find no fault in how the Council made its decisions around its discretionary enforcement powers. Therefore, I cannot question the outcome.
35. Mr X asked us to consider whether the Council appropriately applied its planning enforcement plan (see paragraph 20).
36. I am satisfied the Council’s enforcement investigation was in line with its planning enforcement plan. Therefore, I find no fault.

Considering key planning conditions

37. Mr X complained the Council ignored key planning conditions when it used its discretion not to enforce breaches (part c of the complaint).
38. Mr X said if developers are allowed to bypass planning conditions, the public is misled, and the developer gets to market the benefits – like biodiversity gains – but does not have to deliver them
39. As I have set out above, the Council has discretion about when and how to use its planning enforcement powers. I find no fault in how the Council decided to use its discretionary powers. For this reason, I cannot question the outcome of those decisions.

Non-material amendments

40. Mr X complained the Council invited the developer to submit irresponsible amendments and non-material amendments which undermine the planning process (part d of the complaint).
41. Mr X said he does not believe it is acceptable for the Council to view submitting amendments as enforcement negotiation. He said by yielding on the original planning permission details, the Council contributed to undermining the development’s integrity. He said non-material amendment applications do not allow residents to voice their concerns because there is no public consultation.
42. In its complaint response, the Council said the developer did not submit an application for non-material amendments. It said they submitted a planning application to vary the planning conditions, and this comes with public consultation.
43. I find no evidence the developer submitted an application for any non-material amendments. The Council was entitled to seek formal planning applications to vary planning conditions or to ask the developer to apply to make amendments. In any event, the Council refused the developer’s application to vary the conditions.
44. For these reasons, I do not find the Council at fault.

Complaint handling

45. Mr X complained the Council failed to respond to all parts of his complaints, and did not provide clear and consistent rationales for its decisions (part e of the complaint).
46. Mr X said the Council failed to respond to all parts of his complaint and reworded them to suit its response.
47. I agree that the Council failed to address every aspect of Mr X’s complaint. For example, the Council told Mr X it had been open, helpful and proportionate. In his complaint, Mr X asked the Council for evidence of openness, helpfulness and proportionality. The Council failed to address this point.
48. While this is not best practice, I do not consider it is significant enough to be fault. These are not things that can easily be evidenced, and councils have to use their resources appropriately.
49. Another example is that Mr X said the Council did not explain its decisions on each of the alleged breaches it did not raise with the developer.
50. In its complaint response, the Council said it had considered each of Mr X’s alleged breaches. It answered generally about the action it had taken but did not set out a list of his reported breaches and what action it decided to take on each one.
51. The Council may not have set out its response in the way Mr X wanted or give him the information he wanted, but I am not satisfied this is significant enough to constitute fault.
52. Mr X complained the Council failed to provide consistent, clear rationales for its decisions in its complaint responses
53. I do not agree. The Council may not have explained in detail its reasons for not raising all 28 alleged breaches with the developer, but I find it provided clear rationales for its decisions. Mr X might not agree with the rationales or might not see any consistency, but that is not evidence of fault.
54. For these reasons, I do not find fault with how the Council handled Mr X’s complaint.

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Decision

55. I find no fault.

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Investigator's decision on behalf of the Ombudsman