Summary: Mr X complained about the Council’s decision not to take enforcement action against development near his home that he described as an eyesore. We found the Council at fault for imposing an unenforceable condition on the development planning permission. The Council also lacked transparency in communicating with Mr X about its later planning enforcement investigation. To address the distress Mr X was caused by the Council’s faults, it agreed to apologise and make a symbolic payment.

The complaint

1. Mr X complained about the Council imposing unenforceable planning conditions on development near his home. Mr X said the built development, without enforcement of the conditions, adversely affected his home and caused distress. Mr X wanted the Council to apologise for its error and resolve the condition breaches to address the impact of the development on his home.

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The Ombudsman’s role and powers

2. 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)
3. Where we find fault, we must also consider whether that 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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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

6. I considered evidence provided by Mr X and the Council. I also considered planning information about the development available on the Council’s website and relevant law, policy and guidance. I gave Mr X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

7. Most development needs planning permission from the local council. When granting planning permission the council may impose conditions to make the development acceptable in planning terms. The Government’s National Planning Policy Framework (NPPF) says councils should keep conditions to a minimum and use only where they satisfy ‘the six tests’. The six tests say conditions should be:

• necessary;
• relevant to planning;
• relevant to the development to be permitted;
• enforceable;
• precise; and
• reasonable in all other respects.

8. The Government’s Planning Practice Guidance (PPG) reflects the NPPF and also says it is “good practice” to keep conditions to a minimum wherever possible. The PPG says conditions that fail to meet the six tests should not be used even if suggested by the developer, councillors at their council’s planning committee or third parties. And, conditions needing third-party consent or approval, “often fail the tests of reasonableness and enforceability”. The PPG also says if a development detail, or lack of it, is unacceptable in planning terms, it is best to ask the developer to revise or make a new application. But, sometimes, the council might impose a condition making a minor change to the proposed development.
9. People may seek to change their development proposals after the grant of planning permission. Some changes may affect conditions on the original planning permission. If so, people may apply for permission to develop without complying with those conditions. (See section 73 of the Town and Country Planning Act 1990, as amended (‘Section 73’).)

Planning enforcement

10. Development without the necessary planning permission or not complying with a permission and its conditions, will be a breach of planning control. The council should investigate reported breaches. But enforcement action is discretionary so, if it finds a breach, the council may decide to take informal action or not act at all. Informal action might include negotiating improvements or asking for a planning application so it can formally consider the planning issues relevant to the development.
11. The Council has a Planning Enforcement Protocol (‘the Protocol’). The Protocol reflects the NPPF, which says councils should act proportionately in responding to suspected breaches. The Council will investigate alleged breaches in line with priorities in the Protocol and only act where expedient to do so. Breaches of planning conditions may be Priority 2 – Medium or Priority 3 – Lower. Priority 2 applies if the Council finds a breach of condition causes serious harm to amenity. And Priority 3 applies where a breach is found to cause non-serious harm. Here, the Council considered the breaches were ‘lower priority’. For lower priority cases, the Protocol says the Council aims, in 90% of cases, to inspect the development site within 15 working days. The Council then further assesses the case to decide its next step. The choices are to take no further action; investigate further; negotiate a solution; ask for an application; or take formal enforcement action. The Protocol also says the Council will update people reporting a breach about progress with its enforcement investigation.

A summary of what happened

12. Several years ago, the Council received an application seeking planning permission for development near Mr X’s home. Mr X objected to the proposed development. The Council’s planning officers assessed the application, taking account of Mr X’s objections. The officers prepared a report (‘the Planning Report’) on the application that recommended the conditional grant of planning permission. The conditions proposed by officers in the Planning Report included a requirement:

• to carry out the development in line with named and approved application plans (Condition P’); and
• to use external finishes to match existing buildings (Condition F’).

13. The Council’s Planning Control Committee (‘the Committee’) considered the report. Neither the developers nor Mr X attended the Committee’s meeting. Councillors at the Committee agreed to grant conditional planning permission (‘the Permission’). In doing so, councillors imposed a further condition (‘Condition S’). Condition S referred to Condition P but said, regardless of the details shown on the plans, part of the development should have a specific external finish.
14. The development had been substantially but not fully completed for about a year when Mr X contacted the Council. Mr X asked how long the developers had to carry out Conditions F and S and complete the development. The Council said, having started the development in line with a condition on the Permission, there was no time limit on its completion. The Council also opened a planning enforcement investigation to consider Mr X’s concerns about compliance with Conditions F and S.
15. The Council had already visited the development site during the building works and so wrote to both Mr X and the developers asking to discuss the matter. Both Mr X and the developers responded. The developers said they needed access to third-party land to comply with Condition S. They had sought access but the third-party was imposing conditions on access they considered unreasonable.
16. The Council then wrote again to Mr X. The Council told Mr X, if the developers did not comply with Condition S or make a Section 73 application to remove it, it was unlikely to take formal enforcement action. The Council said this was in line with the Protocol and NPPF as action would not be expedient, proportionate or in the public interest. The Council also wrote to the developers saying they could make a Section 73 application or it would apply the Protocol and consider whether to take formal enforcement action. The Council also told the developers Condition S was unreasonable and unenforceable. So, formal enforcement action was highly unlikely, it not being expedient, proportionate or in the public interest. (The developers did not make a Section 73 application.)
17. Mr X asked the Council if he could appeal its decision to not take enforcement action. He also said the Council had not responded to his concerns about non-compliance with Condition F. In the correspondence that followed, the Council sent Mr X the Protocol and said enforcement decisions were made by councillors at the Committee. Mr X sent the Council representations about non-compliance with Conditions F and S, which officers took into account in preparing a report (‘the Enforcement Report’) on the case.
18. Committee councillors considered the Enforcement Report and agreed to take no further action on the case. The Council told Mr X and the developers about the Committee’s decision and closed its enforcement investigation.
19. Mr X complained to the Council saying, in summary, it had not tried to secure compliance with Condition F and S. And, while discretionary, enforcement action should be fair.
20. The Council’s responses to the complaint, in summary, included that limited resources meant it prioritised cases in line with the Protocol. This meant it did not normally pursue lower priority cases as this was not in the public interest. The Council said it had followed the Protocol in Mr X’s case, which led to councillors considering if enforcement action was proportionate and in the public interest. The Enforcement Report had included that, on reflection, Condition S did not meet the six tests as compliance needed access to third party land. So, it should not have placed Condition S on the Permission.
21. The Council also said the developers had intended to comply with Condition S. Non-compliance arose because of the land access problem. It could not tell the developers to accept the third party’s terms for access. And, as its planning enforcement officers found Condition S unenforceable it, it had no grounds to act, including trying to negotiate a solution. The Council recognised Condition F also dealt with finishes but Condition S specifically addressed the finish for the development facing Mr X’s home. The developers had used building materials, while not compliant with Condition F, in readiness for the Condition S finish.
22. In coming to us, Mr X said the Council had imposed an unenforceable condition but not told him this before deciding not to take enforcement action. This had denied him the opportunity to question the Council’s position and decisions. And, having imposed an unenforceable condition, it did not try to negotiate a solution in line with the Protocol. Mr X recognised it might be difficult to comply with Condition S without access to third party land but it was not impossible. Mr X said the Council’s actions had caused distress and left him facing an eyesore but it had not even apologised.
23. (During my investigation, Mr X confirmed the developers accessed the third-party land and complied with Condition S.)

The Council’s learning points

24. In response to my enquiry about any lessons learned from what happened here, the Council said, in future, it would:

• ensure development on or near the boundary of a development site could be carried out without access to third-party land; and
• ensure it did not impose conditions on planning permissions whose compliance needed access to third-party land.

Consideration

Introduction

25. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. And it is not our role to ask whether a council could have done things better or differently. 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 question the decision, regardless of how strongly a complainant may disagree with it.
26. As a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every question a complainant may have about what a council did.
27. Here, Mr X’s complaint arose essentially because an external finish on a development facing his home complied with neither Condition F nor Condition S. And the Council decided not to take formal enforcement action to secure a compliant finish. So, the Council’s decision making about Conditions F and S was the focus of my investigation.

Conditions F and S

28. The Planning Report properly identified and addressed key material planning considerations for deciding the application. These considerations included the impact of the proposed development on both the character of the local area and visual amenity for nearby buildings. And to help protect the character of the area and nearby amenities, the Planning Report proposed Conditions P and F. Conditions like Conditions P and F often appear on planning permissions and can meet the six tests. Here, I saw no evidence the Council’s Conditions P and F would likely fail the six tests. This included there being no grounds to suggest compliance with Condition F needed access to third-party land. I therefore found, if the Permission had included Conditions P and F but not Condition S, the development facing Mr X’s home would have reflected the character of the area and not been the visual ‘eyesore’ he described.
29. However, the Council added Condition S to the Permission. I saw no evidence, including in the Planning Report and minutes of the related Committee meeting, that any interested party suggested or asked for Condition S. So, on balance, I found the decision to add Condition S was the Council’s. It is not fault for councillors at committee to vary or disagree with recommendations made in their officers reports. However, officers will be present at committee meetings and, where necessary and or appropriate, should provide councillors with timely and relevant advice on their decision making.
30. Here, I found it reasonably foreseeable that compliance with Condition S would need access to third-party land. And this should have been clear to the Council’s professional planning officers attending the Committee meeting. So, the Council had an opportunity to consider that point at the Committee meeting when deciding if the proposed further condition met the six tests. However, I saw no evidence the Council considered the six tests before imposing Condition S on the Permission. I therefore found fault in the Council imposing an unenforceable condition on the Permission.
31. Accordingly, I found no fault in the Council’s later enforcement decision, which was to take no further action as Condition S was unenforceable. However, there was fault in the Council’s communication with Mr X. The evidence showed that early in its enforcement investigation, the Council identified Condition S as unenforceable. It wrote to the developers telling them this. But, the Council did not show the same transparency in writing, at the same time, to Mr X. As Mr X pointed out, he was unaware the Council considered Condition S unenforceable until it responded to his complaint. The lack of transparency in communication with Mr X was fault.
32. The Council gave Mr X the opportunity to send comments for inclusion in the Enforcement Report. However, the lack of transparency meant Mr X’s representations could not, and did not, address the issue of enforceability. When, later, the Council made Mr X aware it had found Condition S unenforceable, this would have caused Mr X further avoidable distress and frustration.
33. Mr X also said the Council failed to try a negotiated resolution to non-compliance with Condition S in line with the Protocol. I recognised Mr X’s views. However, having told them it considered Condition S unenforceable, the developers were unlikely to negotiate a solution or pay for a Section 73 application to remove Condition S. Given the Council found Condition S unenforceable, I did not find it at fault for not actively pursuing a negotiated resolution. But, the Council’s lack of transparency in not telling Mr X Condition S was unenforceable, meant he understandably continued to expect the Council would try to secure compliance with Condition S in line with the Protocol.
34. I also considered non-compliance with Condition F. I found the developers could have completed the development complying with Condition F without needing access to third-party land. However, Condition S did not give the developers a choice in external finishes for the part of the development facing Mr X’s home. I recognised Mr X questioned the need to access third-party land to comply with Condition S. However, on balance, I found such access was reasonably and practically needed to comply with Condition S. And, given the finish needed by Condition S, the developers’ choice of construction materials for that part of the development was understandable. And, with the finish required by Condition S in place, there would have been compliance with Conditions F and S. I found, on balance, the developers were willing to comply to with Condition S (provided they could access the third-party land). And the developers had built the development with that intent in mind. Indeed, as Mr X confirmed during my investigation, the developers, on accessing the third-party land, had recently complied with Condition S.
35. In summary, the Council was at fault in imposing an unenforceable condition on the Permission. It was also at fault in how it communicated with Mr X about its findings on the unenforceability of Condition S during its enforcement investigation. These faults wrongly raised Mr X’s expectations about the finishes to be used in the development and caused avoidable distress and frustration during and following the enforcement investigation. The Council’s faults therefore caused Mr X injustice.

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Action

36. I found fault causing injustice. Mr X confirmed the developers had recently complied with Condition S. The Council was not a party to this. But, in practice, the recent works by the developers effectively put Mr X in the position he expected to be in on the grant of the Permission. However, I found compliance with Condition S did not address the significant personal injustice to Mr X arising from the Council’s faults. To put right the remaining significant injustice, the Council agreed my recommendations to:

• send Mr X a written apology; and
• make a symbolic payment of £200,

in recognition of the injustice caused by its faults.

The apology and symbolic payment to be made within six weeks of this decision statement.

37. To address the wider issues arising from what happened here, the Council agreed, within six weeks of this decision statement, to write to relevant planning officers to remind them:

• of the six tests planning conditions should meet, which tests are set out in the Government’s National Planning Policy Framework and Planning Practice Guidance;
• to carefully consider planning conditions proposed at a meeting of the Council’s Planning Control Committee to ensure they meet the six tests before imposing them on a planning permission; and
• to ensure, where a planning permission includes development on or close to the boundary of an application site, that compliance with any planning conditions is not dependent on third party access, consent, or other approval.

38. The Council should consider our guidance on remedies in making the apology referred to at paragraph 36.
39. The Council also agreed to provide us with evidence of its compliance with the actions set out at paragraphs 36 and 37.

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Decision

40. I found fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman