Summary: We find the Council was at fault in delaying deciding a variation planning application that required changes to a housing development next to Mr X’s property. The Council also failed to make good land it owned that had been affected by the building work, which caused Mr X an injustice. The Council agreed to apologise to Mr X and make him a symbolic payment to remedy that injustice. Other matters raised by Mr X are for the Council to decide whether to enforce.

The complaint

1. Mr X complained that the Council had failed to take action against the developer of a housing development next to his property for several years. When the Council required the developer to submit a variation planning application to regularise matters, Mr X complained that the Council should not delay enforcing corrective works that were conditions of the original planning application.
2. Mr X also complained that the Council had promised, but had not taken, action to clear up rubble and other waste dumped by the developer onto the Council-owned amenity land at the front of Mr X’s property.
3. Mr X said that the new planning application did not address his concerns about:
• The access road to and from the new development, particularly the lack of an agreed rumble strip
• Amenity space within the new development had been raised up against his boundary, thus impacting his privacy.
• Artificial drainage had been installed which had led to regular waterlogging of his garden
4. Mr X wanted the Council to provide compensation, take enforcement action, and provide road and garden repairs.

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The Ombudsman’s role and powers

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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)
7. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
8. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any fault has not caused injustice to the person who complained (Local Government Act 1974, section 24A(6), as amended, section 34(B))
9. 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)
10. 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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What I have and have not investigated

11. In February 2023, the Council upheld a complaint from Mr X about a development that had been built close to his property. The Council agreed with Mr X that there were numerous discrepancies between the planning permission the Council had granted and the development that had been built. The Council asked the developer to submit a new planning application in order “to regularise matters”.
12. Mr X brought his complaint to the Ombudsman in January 2025. So, any aspect of Mr X’s complaint that relates to events that took place before January 2024 have been raised late.
13. Mr X expected the new planning application to address all his complaints and so I consider that it was reasonable that he did not escalate his complaint to the Ombudsman whilst that application was under consideration. I have therefore exercised my discretion to consider his late complaints that were not, in the event, considered via the new planning application, and/or that remained unresolved once that application was decided.
14. Mr X complained to us that building control should not have been approved for the houses on the development. I have not investigated this matter because, as set out at paragraph 8, we do not investigate complaints of fault that have not caused injustice to the person making the complaint.

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How I considered this complaint

15. I discussed Mr X’s complaint with him, and I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
16. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legislation and guidance

Planning permission

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.

20. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.

Amending the conditions attached to a permission

21. An application made under section 73 of the Town and Country Planning Act 1990 can be used to make a material amendment by varying or removing conditions associated with a planning permission. There is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission.
22. Councils should decide s73 variation applications within 8 weeks. This begins when the authority accepts the application as valid.

Enforcement

23. 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.
24. 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.
25. 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.
26. 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

27. I have summarised below some key events leading to Mr X’s complaint to us. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
28. The developer of the housing development that neighboured Mr X’s property submitted a variation planning application in November 2023. As set out at paragraph 11, this application was requested by the Council (at least partly) in response to concerns raised by Mr X in February 2023.
29. On 2 May 2024, Mr X asked the Council to escalate his ongoing concerns into a formal complaint. He complained about a lack of progress of the planning application, and that the Council had not made good on its assurances that the Council-owned strip of amenity land in front of his home, which had become a dumping ground for building waste, would be cleared up.
30. The Council responded at Stage 1 of the complaints procedure on 11 October. That response acknowledged there had been significant delays in processing the planning application, but said that this would be concluded soon. The Council said that its enforcement team could not investigate the differences between the approved scheme and what had been built until a decision had been made on the planning application. It explained further that:

“Taking enforcement action (this could include forcing a developer to rip something down etc or change it back to exactly what was approved) against an element of a development that is subject to an application to regularise what was built, only for the app[lication] to be subsequently approved would be remiss of the Council and would open us up to legal challenge. Therefore, the Enforcement Team must wait for the outcome of the application”.

31. In relation to Mr X’s complaint about the dumping of waste by residents of the new development, the Council said “Enforcement have confirmed that an Officer will conduct a further site visit next week in light of your comments about more waste being dumped on [the new development] by residents”.
32. Mr X immediately escalated his complaint to Stage 2 of the complaints procedure. He complained that the Council had failed to take action against the developer for several years. He said that “enforcement should not be delayed” for those “corrective works that were conditions of the original planning application”.
33. He said he and his neighbours had been “looking onto dumped bricks and waste in council land outside the front of our properties” for four years, and that the Council had assured him this would be dealt with more than a year earlier.
34. Mr X said that the new planning application did not address his concerns about:
• The access road to and from the new development, particularly the lack of an agreed rumble strip
• Amenity space within the new development had been raised up against his boundary, leading to residents of, and visitors to, the new development looking into his garden, thus impacting his privacy.
• Artificial drainage had been installed which had led to regular waterlogging of his garden
35. The planning report written by the Council’s case officer in November 2024, that concluded by granting the variation application, included consideration of several discrepancies between the original permission granted, and the development as built, that Mr X had raised in his original complaint. These were:
• The balance of hard and soft landscaping throughout the development
• The construction of a car port and a shed that were not included in the original permission
• Car ports and internal garages that were expected but had not been constructed
• Significant differences to facing materials and house detailing, compared with the original permission
• Significant differences to roof design and scale, including amendments to the roof form of several houses.
• Significant reduction to the variety of planting in soft landscaped areas.
36. The Council’s planning report on these issues included: “By nature, the ‘as built’ changes to the parking arrangements, hard/soft landscaping arrangements, and material finishes of the dwellings are not considered to have a material impact on the residential amenity of neighbouring properties”.
37. The Council responded to Mr X’s complaint at Stage 2 of the complaints procedure on 20 December. It said:
• As the variation planning application had been granted, there was nothing for the Council to now enforce.
• Visits had been made regarding “waste visible from [Mr X’s] property”, and this had now been removed. It apologised for the delay in doing so.
• Any flooding Mr X was experiencing was a civil matter, that his legal representative should discuss with the developer.
38. The Council apologised for any undue stress or inconvenience caused to Mr X by the delays in determining the planning application and ensuring the waste reported was removed.
39. Mr X approached the Ombudsman in January 2025.

Findings

Enforcement and delays whilst variation application was considered

40. I find that the Council was not at fault in declining to enforce the original conditions that applied to the discrepancies raised whilst the variation application was in process, for the reasons it gave, that I have included at paragraph 30.
41. However, I find the Council was at fault in that it delayed significantly in deciding this application. The variation application was submitted in November 2023. Variation applications for major developments should be decided within 13 weeks, that is, by February 2024. In the event, the application was decided in November 2024, a delay of nine months, which is fault.
42. This caused Mr X the injustice of uncertainty in that matters remained unresolved throughout much of 2024. The injustice to him was limited by the fact that the issues under consideration did not, in the Council’s assessment, materially impact his amenity. The Council apologised to Mr X for the delay and I consider that apology was an appropriate remedy for the injustice caused.

The access road/rumble strip

43. The Council’s planning report of November 2024 included consideration of the fact that a rumble strip at the entrance to the site had been approved as part of the original planning permission, but had not been installed. It noted that this was “deemed key in aiding pedestrian safety, increasing pedestrian’s awareness of vehicles entering and exiting the site”, and so the planning report decided that this arrangement should be secured by way of a planning condition.
44. This matter was covered by condition 4 of the variation permission granted. And so, if the rumble strip has not yet been installed, it is now a matter for the Council to decide whether it is expedient to enforce this condition.

Amenity space raised up against Mr X’s boundary

45. Mr X complained, in February 2023, that levels within the site had been increased to the rear of his property, onto which unauthorised car parking spaces had been placed. When people exited their cars they could see straight into his garden.
46. The Council’s response was that this difference in levels had been noted by the Council’s enforcement team, but that “the absence of a Proposed Levels drawing [in the original planning application], or any condition to that effect, makes it very difficult to seek to take action on this matter”.
47. The Council asked the developer to take overlooking into account when revising the landscaping details, as part of the ‘significant amendments’ drawing, through an increased height to the landscaping and by increasing the extent of landscaping in this area, taking parked cars further away from this boundary.
48. The application considered by the Council included a “proposed site plan with landscaping improvements”, dated October 2024. This plan included the addition of a “tall hedge along boundary for privacy to neighbour's rear garden”.
49. This matter was covered by condition 3 of the variation permission granted, which states “within 6 months of the date of the permission [that is, by 1 May 2025], the hard and soft landscaping works hereby approved shall be completed and thereafter permanently retained”. And so, if the hedge along the boundary with Mr X’s property has not yet been planted, it is now a matter for the Council to decide whether it is expedient to enforce this condition.

Artificial drainage installed which has led to regular waterlogging

50. The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in an objection letter 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.
51. The Council’s planning report of November 2024 included: “The current amended plans seek to improve the existing drainage situation on the site, via the installation of a new […] drainage channel. These arrangements are considered sufficient to ensure that surface water does not discharge into neighbouring properties.”
52. Mr X told me that the new drain had been installed, but not properly – it was only an inch deep and didn’t actually drain to anywhere (such as a soakaway). However, the site plan approved by the Council included a “new […] channel drain to [the] existing surface water system” – not a new drainage system. I find that the Council did give consideration to the matter of surface water drainage during the planning process. As there was no fault in how the Council made its decision, we cannot question the outcome.

Waste on communal land

53. In his February 2023 complaint, Mr X raised a concern that the builders of the development had “buried plastic, glass and rubble onto the Council land immediately to the front of the site. This has meant that the land is too lumpy to cut, whilst also being a health and safety issue.”
54. The Council’s February 2023 response to this complaint included “the land needs to be stripped, fresh soil laid and then re-seeded. […] I would need to check with the Council’s Estates Department to see whether they would prefer for the developer to carry out these works or for monies to be paid in order for the Council to carry out these works themselves”.
55. This work was not done. Mr X therefore raised it again in his 2024 complaints.
56. The Council’s first response, in October 2024, included that the Enforcement Team would conduct a site visit the following week to assess “waste being dumped on [the new development] by residents”, and the second said that “waste visible from [Mr X’s] property” had been removed. The Council apologised for the delay in doing so.
57. Mr X told me that this still hadn’t been done, and that the Council was therefore lying about the waste removal. He had eventually removed the waste himself, in Spring 2025.
58. I find that Mr X and the Council were talking at cross purposes. The Council’s 2024 responses were focussed on waste dumped on the building site itself, whereas Mr X’s complaint referred to a strip of Council-owned amenity land that is directly in front of both the development and Mr X’s property.
59. This misunderstanding is not fault, but I find the Council was at fault in failing to do what it said it would do in early 2023; that is, ensure that the amenity strip was restored for the public’s benefit.
60. Because of the Council’s inaction, which was fault, Mr X suffered injustice in terms of frustration throughout the period of the two-year delay, negative impact on his visual amenity in terms of the unsightliness of the communal land, and, ultimately, that he felt forced to take matters into his own hands to restore the land to use. I shall recommend a remedy for the injustice caused by the Council’s fault.

Complaint handling

61. The Council’s complaints policy says it will address complaints within 10 working days. In this case, it took more than five months to provide a full response to Mr X’s Stage 1 complaint. This delay was fault, that caused Mr X the injustice of frustration whilst he waited for an outcome. The Council has apologised for the delay which I consider to be a suitable remedy for the injustice caused.

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Action

62. Within one month of my decision, the Council will make Mr X a payment of £200 in recognition of the injustice it caused him by failing to restore the Council-owned land at the front of his property. This is a symbolic payment recommended in line with our Guidance on Remedies.
63. The Council should provide us with evidence it has complied with the above action.

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Decision

64. I find fault causing injustice. The Council has agreed action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman