Summary: Mr X complained the Council failed to take suitable enforcement action to ensure a developer implemented landscaping in accordance with approved plans. There was no fault in the Council’s decision-making. The Council was at fault for delay and some poor communication. However, its earlier apology to Mr X is sufficient remedy for the injustice.

The complaint

1. Mr X complained the Council failed to take suitable enforcement action to ensure a developer implemented landscaping in accordance with approved plans. Mr X said the Council was negligent in not including landscaping as a condition of planning permission.
2. Mr X also complained the Council did not address matters in a timely manner, showed bias towards the developer, and ignored some of their communications.
3. Mr X said he is left looking at public open space bearing little resemblance to that originally submitted to and agreed by the Council. The situation has caused Mr X and his wife distress over a prolonged period. He also considers it has affected the value of their home.

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The Ombudsman’s role and powers

4. 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)
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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What I have and have not investigated

6. I investigated events around the Breach of Condition notice the Council issued in 2023, any remedial action taken by the developer, and the Council’s decision to close its enforcement case.
7. I included details of earlier events for context.

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How I considered this complaint

8. As part of the investigation, I considered the complaint and the information Mr X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

11. 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.
12. 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.
13. 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 decided 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.

14. 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.
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)

What happened

16. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
17. A developer received planning permission from the Council to build new houses and associated landscaping. A condition of the planning permission required the developer to carry out all planting and seeding or turfing from the approved landscape scheme. The developer had to do this in the first planting season following the first occupation of the development. The developer also had to water all planting and control competitive weed growth.
18. The developer had to replace any trees or plants that died, were removed, or became seriously damaged or diseased within five years of completing the planting. Replacements had to be made in the next planting season, with similar species and size.
19. Mr X complained to the Council when trees on the development died and the developer did not complete the landscaping.
20. The Council opened an enforcement case file and contacted the developer.
21. The developer told the Council they replaced the trees in November 2021.
22. The Council visited the site and confirmed the developer replaced the trees. The Council therefore closed the case. It considered all landscaping was complete.
23. The Council re-opened the case in March 2022 when it established some planting had failed and the developer had not complied with other aspects of the landscape scheme.
24. The planning enforcement officer (Officer A) emailed the developer in April 2022 about dead trees, a dead hedgerow, a missing bench in the meadow, and lack of bin and cycle stores.
25. The developer said it would speak to its landscaper about the trees and hedge.
26. Officer A emailed the developer in June 2022 following a site visit with the Council’s landscape officer. Officer A said there were several failed trees that need replacing in the autumn, before November. There are also weeds that need removing. It suggested seeding the basin as it was not holding water. Officer A also asked for a response on the bin and cycle storage.
27. The developer said gardens had extensive patios for bin storage and purchasers asked them not to install cycle storage due to the impact on gardens.
28. Officer A emailed the developer in October 2022 asking them to confirm works would happen before the end of November. They also sent an update to Mr X.
29. The developer said an expert visited the site and considers they were planting the wrong tree species, and planting similar ones means they are also likely to have the same problems. The expert is going to suggest alternatives. The developer asked if they needed new planning consent for this.
30. Officer A said it would technically be a planning breach, but the Council would not enforce if the trees were acceptable. It asked what species.
31. The developer said their landscaper was busy but would visit the site over Christmas to establish what needed doing. They said they would let the Council know once they had a revised timescale, but it would be within the first two months of the new year.
32. Mr X asked the Council for an update as he saw no work and the November deadline passed. Mr X said the central space has more dead trees than living. He asked what further action the Council can take.
33. Officer A said they recently undertook a site visit, and the dead trees had not been replaced. The developer had an expert visit to establish why the trees died and proposed planting different species. Officer A said the Council would consider formal action in the new year if the developer did not do remedial works.
34. Mr X highlighted other issues the developer had not addressed yet, such as weed control and grassing of the balancing pond. Also, the lack of cycle sheds and bin storage and the missing second bench.
35. Officer A said they clarified issues about the bin storage and missing bench in June 2022. They understood purchasers asked the developer not to provide cycle stores, and if they had a garage or other storage area then the Council did not consider it expedient to pursue formal enforcement action over this.
36. Mr X said they were not offered cycle storage, nor was there any provision for bin storage. They asked if there was any way of holding up the planning permission granted on phase two of the development until all issues were resolved.
37. Officer A said the bin storage is an open space indicated on the patio, so the developer has complied with this. They said they cannot hold up the other development as it was a separate planning permission. They said the developer had until the end of March 2023 to complete the works, but they would attempt to resolve things without formal action.
38. Officer A chased the developer for an update in January 2023.
39. The developer emailed Officer A outlining their landscapers’ suggestions. This included removing 13 dead trees, mainly silver birch and beech, and replacing them with different species. They also planned to infill planted areas which had lost shrubs. The developer asked the Council for confirmation this was acceptable.
40. Officer A consulted the Council’s landscape officer. They had no objections to the tree species suggested but asked where the developer planned to plant them. Officer A passed these comments to the developer in February 2023 and asked when they were booking the work.
41. The developer said they were aiming to complete the works by the end of February.
42. The developer confirmed the works were completed on 31 March 2023.
43. Officer A emailed the developer on 5 April 2023 after visiting the site. The officer confirmed they were satisfied with planting works to the open space to the South around the sustainable drainage system feature. They attached photographs of more dead trees to the central open space and asked the developer to replace them.
44. The developer said it would look at trees in the central area when it was next on site, but trees adjacent to the wall are the responsibility of homeowners.
45. The Council said, under section 178A(2) of the Town and Country Planning Act 1990, it can serve an enforcement notice on the developer, as it carried out the work.
46. Mr X emailed the Council in April. He said, despite some progress, the developer had not replaced any of the dead trees on the central open space. They asked the Council to pursue the matter. They also said the bin storage was marked as a tiled area as part of the open space on the plans.
47. Officer A said they visited the site the previous week and were satisfied with the planting, but disappointed trees had not been replaced. They emailed the developer about this and would update Mr X when they have a response. The officer said there were hard surfaced areas near the missing tiled area, and they did not consider this technical breach to be causing harm to the area’s amenity, so this would not be pursued.
48. Mr X said they tried over the last 5 years to get the developer to bring the public open spaces up to specification as per planning permission. Trees have not thrived due to lack of care and replacement trees have not been the right size or species. The wildflower meadow has never been weeded. The pond has been redesigned as a grassed area but has not been grassed. The hedge to the East of the site has not been maintained. A second bench has not been installed. They were not offered a cycle shed by the developer, and general maintenance is non-existent.
49. Mr X said the Council had not communicated their recommendations to the developer, and they were not treated fairly, as requirements had been watered down or set aside. They were also not kept informed.
50. Officer A said they always passed Mr X’s concerns to the developer and had not watered down recommendations. They acted within the constraints of the system, which favoured developers. They also responded to Mr X’s emails. Officer A said they tried to get the developer to undertake remedial works, and they were considering formal enforcement action through a Breach of Condition (BOC) notice. They said they would update Mr X on this after speaking to management and legal services. They had been negotiating with the developer, and there had been some part compliance, so it was considered reasonable to continue the negotiations. The officer considered the outstanding matters were the failed trees to the central open space and the hedgerow. They would visit the site again to consider the weeding issue, but did not recall any concerns from previous visits. They offered to meet Mr X on site to clarify any concerns.
51. The Council served a BOC notice on the developer on 31 May 2023, due to continued non-compliance with the landscape scheme.
52. The developer had eight months to comply. They had to carry out all planting between 1 October 2023 and 31 January 2024.
53. Officer A emailed Mr X on 2 June to update him.
54. In November 2023, the developer told Officer A they ordered replacement trees, and they were expected in the next three weeks. They asked Officer A to confirm they had satisfied the planning condition once this was done and they would not be responsible for any planting that dies. They wanted to hand the site over to a management company but needed confirmation of this first.
55. Officer A said they would visit the site once the works were completed to check whether it was acceptable. They hoped other matters were completed as well as replacement tress, such as the hedgerow, deceased plants, and seeding the sustainable drainage system pond with wildflowers.
56. The developer confirmed its landscaper would do the seeding as well. It said it now had planning permission for the adjacent site and planned to create a joint amenity space. It was likely stormwater would drain to a ditch at the South of the current site, which will mean digging up the hedge. The developer said it could not replace the hedge until this was confirmed.
57. The developer emailed the Council on 15 December 2023 stating they replaced all relevant trees and completed wildflower seeding.
58. The Council visited the site on 19 January 2024. It found the developer had replaced trees, but it was difficult to tell how they would do due to the time of year.
59. Mr X emailed the Council in February 2024 after the period to comply with the BOC notice expired. Mr X said the developer cut the meadow in September but did not do weed control. They also seeded the basin in December but did not prepare the ground or weed first. They replaced seven dead trees but did not water them in. They removed two dead trees but did not replace them. Mr X asked what the Council proposed to do.
60. Officer A said the developer confirmed completing all planting and wildflower seeding in December. The officer said they visited the site recently but will need to visit again in March or April to see how the planting is doing. They will also check the weeds.
61. Mr X asked the Council for an update in July 2024. He asked if the BOC notice transfers to the management company when the developer transfers ownership of the public open space.
62. Officer A visited the site again on 17 July 2024. They then sent Mr X an update. Officer A said although there was a deceased tree and some struggling trees, they were satisfied with the level of compliance and minded to close the enforcement case. Although the site is not fully compliant there have been improvements. They also confirmed the BOC notice would not transfer to the management company.
63. Mr X said the result of the enforcement case appeared to be only the replacement of several dead trees. Three dead trees remained, several trees were struggling, and the replacement trees were not of the right size or species. The balancing pond remained unseeded, many shrubs died, and there had been no weeding of flower beds or the wildflower meadow. The Council also set aside the non-planting of the East hedge, the lack of cycle sheds and bin storage, and the lack of second bench to the landscaped areas.
64. On 27 September 2024, Mr X complained about the Council’s approach to public open spaces and the management of the enforcement case.
65. Mr X said except for some replaced trees, the Council set aside or watered down everything which did not comply with the original planning permission.
66. Mr X said they had to continually chase the Council to find out what, if anything, was happening. He accused the Council of shying away from enforcement and showing bias towards the developer.
67. The Council sent its stage one complaint response on 22 October 2024. It said:
• The first complaints it received about landscaping at the site came in July 2019. An officer told the developer to complete the landscaping scheme before closing the case. The current enforcement case opened in September 2021.
• It is standard practice to first attempt to negotiate with the developer and give them the chance to comply before resorting to formal action.
• In this case Officer A followed correct procedure and gave the developer a reasonable period to comply, whilst also gaining some compliance. This resulted in the issuing of a formal BOC Notice to get the developer to complete the landscape scheme. The Council therefore followed correct practice.
• Officer A’s email to Mr X said there was a bias in the regulations towards developers, not that there was bias by the Council.
• Since the allocation of the case, Officer A took formal enforcement action and there had been clear progress and part compliance with the landscape scheme.
• The case remained open. The Council apologised Officer A had not responded to Mr X’s email from July 2024. It had been a busy period, and the case was not high priority.
68. Officer A produced an enforcement decision report on 1 November recommending the Council close the enforcement case. This was approved by a planning manager. Officer A considered it was clear the developer completed most of the landscaping and it was doing well.
69. The Council’s landscape officer considered replacement planting had established well. Even if planting is not exactly as per the approved landscape plan, the landscaping areas appear acceptable. They noted mown pathways maintained through the public open space with other areas of grass allowed to grow long. They considered it was clear the site was not neglected.
70. The Council’s legal services considered there was no value in pursuing the matter further as there did not appear to be any detriment to amenity.
71. On 15 November 2024, Mr X asked the Council to consider his complaint at stage two. He said there is no robust mechanism for enforcing when developer’s do not deliver on promises. Instead, the system allows the watering down of those promises, which the developer took advantage of.
72. Mr X said the Council also closed the case, at the developer's request, in December 2021. By this time the Council had already given them two planting seasons to rectify the situation, and they showed no intent to take matters seriously. He questioned the point of planning enforcement if the Council will not enforce the agreed landscaping.
73. Mr X said the developer replaced some trees, but not with the correct size or species, and three dead trees remain. He said the Council accepted the developer seeded the sustainable drainage system basin, despite this being four years late and with no evidence it had any beneficial effect. The Council also accepted the developer was carrying out weed control despite there being no evidence.
74. Mr X acknowledged the Council was busy, but said it did not respond to his emails for weeks and in some cases months. He received no reply to emails in December 2021, April 2022 and May 2022.
75. Mr X said the process had been ongoing more than 5 years, and the Council had not taken account of the impact on their mental wellbeing, the impact of looking out on the state of the open space, and the impact on the value of their home.
76. Officer A emailed Mr X on 18 November. They advised while the Council received some part compliance with the BOC notice, there had not been full compliance with the landscape scheme. However, the landscaping was in large parts acceptable, and the Council did not consider there was any detriment to local amenity. As such the Council decided it was not in the public interest to pursue further enforcement action and closed the case.
77. The Council sent its stage two response on 28 November 2024. It said:
• There are limitations on its powers and a change to this approach would need a change in legislation.
• On occasions where land is not developed according to plans, the Council must assess the relevant harm, in planning terms, and consider whether it is expedient to pursue formal action. Developments are not always built to plan, but that does not mean they are not acceptable.
• The case was closed in December 2021 as the Council believed all landscaping was complete, including replacement trees. It apologised it did not convey this decision to Mr X.
• It re-opened the case in March 2022 when it was established some planting had failed and other aspects were not fully compliant.
• It did not agree the developer showed no intent to comply as there was part compliance regarding tree replacement and maintenance. It also said it contacted the developer throughout the case and took formal enforcement action when it issued a BOC notice on 31 May 2023.
• It is sometimes considered best to try a different species of tree, or a different location, when a tree fails.
• The developer has seeded the sustainable drainage system basin. It cannot enforce for the fact seeding has not thrived in this location. And the failure to include a second bench does not go to the heart of the landscape scheme.
• Its landscape officer said the replacement planting was undertaken and the vast majority had taken well.
• The landscaping appears acceptable and is not considered a detriment to local amenity.
• The landscape management plan is not specified within a condition on the decision notice, nor is it listen within the latest planning approval, so it is not enforceable.
• It apologised its level of service fell short in terms of responses. There was an increase in casework and high turnover of staff. This meant only the highest priority cases were being dealt with. The enforcement team has limited resources and must prioritise their time to cases based on level of harm.
• It accepted the time taken to conclude the case and, at times, its lack of communication with Mr X, fell short of the level of service residents expect. It apologised for this.

My investigation

78. The Council denied any bias toward the developer. It said it is standard practice to first try to negotiate with a developer and give them the chance to comply before resorting to formal action. In this case the Council gave the developer a reasonable period to comply, which for landscaping was the next available planting season of November to March, gaining some compliance in the interim. The Council acknowledged this was not full compliance. The Council then issued a BOC notice, trying to get the developer to complete the landscaping.
79. The Council said completion of landscaping is the developer's responsibility. The Council has a duty to investigate alleged planning breaches and take formal action where appropriate. It took formal action and there has been clear progress and part compliance with the landscape scheme.
80. The Council said, for a variety of reasons, developments do not always end up being built in line with approved plans, but that does not necessarily mean what has been completed is not deemed acceptable in planning terms.
81. The Council considers the landscaping is, in large parts, acceptable and there does not appear to be any detriment to local amenity. If the developer had submitted the current finished landscaping the Council would most likely have approved it. The Council considers the site provides high quality landscaping that integrates with its surroundings. As such it complies with the Council’s development plan. In view of this the Council did not consider it expedient to pursue further enforcement action.
82. The Council accepts there was a lack of response at times during the investigation, but it apologised for this in its complaint response. It said early in the enforcement case was a challenging time for the planning service with increased reports of planning breaches and high staff turnover which disrupted normal service delivery. This meant officers had to focus on higher priority cases.

Analysis

83. Initially, the Council held discussions with the developer about correcting problems the Council identified when it visited the site. The developer appeared to be cooperating and employed a landscaper who gave an opinion on rectification, such as different tree species. This was approved by the Council’s landscape officer. The Council needed to allow the developer time to complete the works, including waiting for the next planting season. I saw no evidence of fault in the Council’s approach, which was in keeping with national planning guidance and its own enforcement policy.
84. The planning enforcement officer visited the site several times to assess progress, and followed up with the developer over non-compliance. They also offered to meet Mr X on site.
85. When the developer did not complete the work within a satisfactory timeframe, the Council started formal enforcement action through a BOC notice. Again, the Council had to give the developer sufficient time to comply with the notice before it could consider prosecution.
86. The developer completed some rectification works, although the Council acknowledges they did not complete all works stipulated within the approved landscape scheme. However, the Council decided it was not expedient to pursue further formal enforcement action. This was on the basis that planning officers were satisfied the landscaping is now acceptable and did not result in significant harm in planning terms. Officers considered there was no significant impact on the local amenity. The Council also considered it would have likely approved planning permission for the finished landscaping.
87. In reaching this decision, the Council drew up a report considering the material issues. It received input from its landscape officer, and it also took advice from its legal department. I have not seen evidence of fault in the Council’s decision-making process. I therefore cannot question the outcome.
88. The Council’s planning enforcement investigation was ongoing for several years. However, on the evidence seen, I am satisfied the Council progressed the case and there were no periods of significant inactivity or drift up until the point the Council served the BOC notice. The Council had to allow the developer reasonable time to rectify the problems, and to comply with the BOC notice. This sometimes meant waiting several months for the next planting season.
89. However, there was a period between February and July 2024 when the Council did not progress the case. Officer A told Mr X they would visit the site in March or April, but I have not seen evidence they did so until July when Mr X chased for an update. That was fault.
90. The Council accepted it took time to conclude the case. It apologised for this. I consider its apology is sufficient remedy for the injustice. Although undoubtedly frustrating for Mr X, the delay did not affect the outcome.
91. I found Officer A generally replied to Mr X’s communications, and within a reasonable timeframe. The Council acknowledged there were some occasions where it did not update Mr X, and it apologised for this. Its apology is sufficient remedy as in the main I am satisfied the Council kept Mr X up to date with what was happening and raised his concerns with the developer.

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Final Decision

92. I found no fault in the Council’s decision-making. The Council was at fault for delay and some poor communication. However, its earlier apology to Mr X is sufficient remedy for the injustice.

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Investigator's decision on behalf of the Ombudsman