Summary: Mr X complained about the Council’s handling of planning enforcement and other concerns for a development of homes. He said it had failed to hold the developer to account. We have not found fault in the process the Council followed to consider his concerns. While it has taken a substantial amount of time to commence or decide on any formal action against identified breaches, this was not due to unnecessary delay by the Council. There was some fault in the delayed complaints handling, which caused Mr X some frustration. The Council will apologise to acknowledge this.

The complaint

1. Mr X complained, on behalf of himself and a resident management company, about the Council’s lack of planning control over a housing development. He said it has not held a developer to account for breaches of planning control and environmental regulations, including an unauthorised plant essential for the development.
2. Mr X said, as a result, he has experienced distress and uncertainty, and residents may have significant unforeseen future costs including issues selling homes.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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)
7. 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

8. I have investigated Mr X’s complaint around the Council’s handling of planning enforcement and building control concerns since 2024.
9. I have not investigated Mr X’s concerns about planning approvals for the development which occurred before 2024 as these are late. Nor any new matters which occurred since Spring 2025 when Mr X asked the Ombudsman to consider his complaint.

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How I considered this complaint

10. I considered evidence provided by Mr X and Council as well as relevant law, policy and guidance.
11. Mr X and 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

12. Relevant law, guidance, and policy

Planning Control and Enforcement

13. 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.
14. 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.
15. 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.
16. 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).
17. 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.

Building Control and Building Regulations

18. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow and consider. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
19. A certificate of building regulations approval can be granted by councils acting as building control authorities. A building owner can get building regulations approval by submitting a “full plans” or building notice application. They may also apply for “regularisation”, i.e. retrospective approval for work already carried out without building regulations consent.
20. The courts have decided that council building control authorities are not liable to ensure compliance with building regulations; the duty to comply with regulations lies with the building owner. If work is sub-standard, individuals may be able to seek redress in the courts, if they can show their builder did not act with reasonable care or skill.
21. Similarly, works to or near a party wall are a civil law matter under the Party Wall etc Act 1996. Damage to property caused by a neighbour’s building work would normally be a matter for private legal action by the property owner against the neighbour. Any dispute is a matter for a court of law, not the council, to decide.

Section 106 Agreements

22. Planning applications may be approved subject to a planning condition requiring the applicant to enter into a separate legal agreement. These agreements are usually referred to as ‘section 106’ agreements. They are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.

Council’s complaints procedure

23. The Council has a two stage complaints process. This is:
• Stage one process – it will acknowledge a complaint in writing within 5 working days of receipt and aim to respond within 10 working days. If it takes longer to respond or a complaint is complex, it will update a complainant every 10 working days until a full response can be provided.
• Stage two process – it will acknowledge a complaint in writing within 5 working days and aim to respond within 20 working days. If it takes longer to respond or a complaint is complex, it will update a complainant every 20 working days until a full response can be provided.

Background

24. The Council approved a development for several homes through a number of planning applications since 2018. The developer has subsequently obtained planning permission for further homes within the same area. The development was to be connected to the main sewers and was subject to planning conditions which included boundary treatments, creation of private estate and access roads.
25. Construction of the homes started around 2020. By 2021 the developer submitted additional applications to the Council. These included non-material amendments and two variation applications to the approved plans. This was because some homes were not built as set out in the plans, and other changes regarding the layout and designs were intended. The Council approved one of the variation applications.
26. Buyers of the homes started moving into the development from 2021. A contractual agreement required the developer to set up a resident management company to manage the estate and maintain the roads.
27. Mr X bought one of the homes and lives in the development. The residents were concerned about the development and set up their resident management company in late 2023. This was because the developer had not set this up as required. They took responsibility for some elements of the development, met and unsuccessfully raised concerns about the development with the developer.

What happened

28. This is not intended to be a summary of each and every event or communication that occurred.
29. In late 2023 Mr X and the resident management company brought their planning enforcement concerns about the development to the Council’s attention. This included:
• unauthorised plant had been installed instead of a connection to the main sewers in close proximity to habitable homes, and potential pollution of a nearby watercourse;
• issues around what had been developed were not in line with approved plans, and the continuous changes to designs and layouts by the developer;
• the quality of the development and fittings; and
• potentially contaminated soil was exported from the site to another site owned by the developer close by.
30. The Council logged the resident’s enforcement concerns and inspected the development in early 2024. The officer also met with representatives from the resident management company.

Mr X’s complaint

31. In March 2024 Mr X complained to the Council. Below are a summary of his complaint and the Council’s response in which it did not find it had been at fault:
• its handling of the planning applications for the site over several years up to 2023;

The Council explained it had considered the planning applications in line with planning policy. Some applications had been approved, some were refused and some were yet to be determined. However, it explained a developer was entitled to submit new or amended plans.

• it had lacked oversight and enforcement against development not completed in line with the approved plans, including the unauthorised plant and matters which was yet to be completed by the developer;

The Council said it had made a number of enforcement visits over the last few years. However, it relies on reports of planning control concerns. It had found some development was not in line with the approved plans. It had sought retrospective planning applications from the developer and found some developments were acceptable in planning terms or were not expedient for it to enforce. It had remained in contact with the developer and would consider the unauthorised plant. However, planning enforcement would normally be the last resort.

• its handling of building control during the development;

The Council explained it was for the developer to ensure the development was in line with building control requirements. This could be by using the Council’s service or a private building control contractor. However, issues around the quality of the construction, fixtures and fittings, and setting up the management company was a private matter between the developer and the residents.

• pollution concerns had not been recognised and addressed; and

The Council explained concerns about the contaminated soil and the watercourse were not planning matters. Various bodies including the Environment Agency and the Council’s Environmental Health team had been involved in the process, and found this could be conditioned under a planning application for the nearby site.

• its planning, building control, and planning enforcement were not joined up which meant there was a lack of transparency for residents.
5. Mr X raised additional concerns to the Council. This related to the developer’s financial difficulties and intent for his company to cease trading, a Section 106 agreement for the development, and other concerns. The key issue was around the lack of connection to the main sewer and who was responsible for the plant, and why the Council had not identified this planning control breach. He asked for a meeting with the Council.
6. In Summer 2024 the Council provided a further response to Mr X. It explained its building control had inspected the site in terms of foul drainage from individual properties and were satisfied it met the minimum standards. It explained why some concerns were a private matter between residents and the developer, including foul drainage to the highway which required a building control application. It also said some developments were a breach of planning control but were not found expedient to enforce. However, it would continue to discuss and negotiate some breaches with the developer including the plant.
7. The Council subsequently arranged a meeting with the resident management company. It agreed to look into five main concerns regarding the plant, the requirements of the section 106 agreement, concerns about the private accessway being maintained by the residents but a new development would now use the road as well, the access road and some drives were unfinished, and a further plot was being developed not in line with the planning permission.
8. The Council inspected concerns in Autumn 2024 when a site meeting took place. It subsequently raised the identified concerns with the developer. It explained the plant was unlawful and required Environment Agency certification, and the existing variation application would not be appropriate to address the identified issues as further deviations from those plans had taken place. A new single application to regularise the development should therefore be made for the Council to consider.
9. By late 2024 the Council received the Environment Agency’s view on the plant and shared information with Mr X. It continued to chase and discuss the identified concerns with the developer or his agent. The Agent told the Council the developer was unlikely to cover the cost of a new planning application as the company was in the process of ceasing to trade. The Agent asked for more time to work with the developer.
10. The Council also informed Mr X the section 106 agreement only related to waste collections from the access road and the duty of this agreement goes with the land. It explained the access of another development to the road maintained by the residents was not a planning matter it could consider. It would continue to consider enforcement of the plant and some other issues. However, it warned any formal action would be against the developer and the residents which would be the last resort.
11. Mr X did not agree the Council should seek a planning application from the developer as he this would hide the Council’s failure to address the issues over a five-year period.
12. In early 2025 the Council chased the developer and his agent several times for progress and agreement to submit a planning application to regularise the development which had taken place, including the required certification from the Environment Agency regarding the plant. It did not receive a satisfactory response and set a deadline for the developer.
13. The Council also shared details of the developer with the Environment Agency. It met with the agency which agreed to take samples of the watercourse for pollution. The Council questioned the agency what action it may take. It informed Mr X accordingly.
14. In March 2025 the developer told the Council his agent may apply for certification to the Environment Agency. If granted this would then be transferred to the resident management company. He also said his company was in the process of ceasing to trade.
15. Mr X asked the Council to escalate his complaint about its handling of the planning permissions and planning enforcement of identified breaches of planning control for the development.
16. The Council acknowledged receipt and told Mr X it would take some time to respond due to the complexity of the case.
17. Mr X also made a new complaint regarding the Council’s approval of another nearby development from the same developer which uses the access road maintained by the resident management company. Including concerns about the safety of vehicles and pedestrians in this application.
18. In response to this complaint, the Council explained it had sought legal advice regarding road maintenance. It explained ownership of the road had not been contested previously and Highways had not raised issues of the suitability of the access road. It therefore found it could consider and approve the application as it was acceptable in planning terms.
19. By Summer 2025 the Council:
• continued to chase the developer and warned it may take enforcement action. His agent said a solution was difficult as the developer wants residents to pay for the costs of the retrospective planning application as he was closing the company down.
• chased the Environment Agency, which told the Council it would take samples. This was subsequently done, and the agency confirmed the plant worked to specification and it did not have significant concerns as it was maintained by a contractor on behalf of the residents. It would not take enforcement action, but the plant still needed certification which the resident management company was best suited to hold.
• arranged a meeting with the resident management company, planning, building control, and the Environment Agency. The key discussion was around the plant. It was agreed Building control would consider concerns raised about the plant, land ownership of where the plant was needed from the Land Registry, and an overall plan and cost for corrective works was needed.
20. In Autumn the Council confirmed the plant had not been signed off by building control, the title to the land where the plant was sited remained the developers but the resident management company had taken on the responsibility to maintain it, and it remained of the view the whole development did not benefit from the planning permissions as not built in line with approved plans. The section 106 agreement could therefore not be enforced. It told Mr X it intended to respond to his complaint, but its options were:
• to serve enforcement against the unauthorised development, including the plant. This would be against anyone with an interest in the land, and therefore both the developer and the residents. However, it did not wish to do so and only as a last resort; or
• to continue pursuing a planning application with the developer to regularise the development, including a Building Control regularisation application and Environment Agency certification for the plant; or
• for the resident management company to do so on behalf of residents.
21. In September 2025 Mr X chased the Council for its complaint response. The Council apologised for the time it was taking and said it would respond. It reiterated the options it was considering. It suggested a further meeting before it issued its complaint response.
22. Mr X asked the Ombudsman to consider his complaint in April 2025, which was when he had not yet received the Council’s final complaint response. The Council informed the Ombudsman the complaint was complex and therefore it was taking longer to consider and respond to his complaint.
23. I understand a further meeting took place between residents and the Council in Autumn 2025. However, this had not led to an agreement or formal enforcement action being commenced.

Analysis and findings

51. The Ombudsman is not an appeal body. It is not our role to determine whether there has been a breach of planning or building control or whether enforcement action should be taken. That is the Council’s role. My role is to look at the procedures the Council has followed to reach its decisions. If we consider it followed those procedures correctly, we cannot question whether any resulting decision is right or wrong, regardless of how strongly a complainant may disagree with it.
52. I have reviewed the way the Council dealt with the enforcement case it opened in early 2024 when Mr X reported alleged breaches.

Council’s oversight of planning and building control

53. After the Council had granted the developer planning permission for the development of the homes, it was not under a duty to observe the development to ensure everything is developed in line with the approved plans. Instead, councils rely on reports of planning control breaches to consider any alleged breaches. This is in line with the Council’s policy.
54. Similarly, it is the developer which is responsible for ensuring the development is in line with building control standards and appropriate approval is sought to have this signed off at relevant stages. This can be through the Council’s building control or through private building control providers. The Council’s building control can consider concerns about the safety and structures of a development, if and when reported to it. However, this does not include the quality of individual builds and poor fixtures and fittings. Such matters are private contractual matters between the homeowners and the developer.
55. I understand Mr X believes the Council should have identified breaches of planning control relating to some parts of the development before he reported concerns to the Council in late 2023, in particular regarding the unauthorised plant.
56. However, I have not found the Council at fault. The Council inspected and considered some concerns about the development before Mr X reported concerns in late 2023. I acknowledged it could have identified the plant which had been developed was not on the approved plans. However, it remained unaware until this was reported to it, and its duty to consider this therefore first started in early 2024.

Variation applications

57. Mr X’s view is the Council should have decided or considered all the developer’s variation applications since 2021. However, I am satisfied the Council did not do so as it became aware the applications were already obsolete as the development was neither in line with the original plans, nor the proposed plans in some of the variations applications.
58. As part of the planning enforcement process, it found the best way to regularise the development, would be through a formal consideration of a retrospective planning application which contained plans of the development as currently built. While Mr X may disagree, this was a decision it was entitled to make.

Lack of enforcement action

59. The Council has not taken any formal enforcement action against the developer for identified breaches of planning control from early 2024 until the end of Spring 2025, nor has any formal action been taken since.
60. I have considered whether there was fault in the process the Council has followed, or whether it has caused unnecessary delay in the enforcement process.
61. I have not found fault in the process the Council followed. In reaching my view I was conscious the Council:
• inspected the development and reported breaches of planning control in early 2024 and has visited the site on a number of occasions since;
• reached views on several planning control breaches were not expedient for it to consider further, but some parts which should be pursued further. This included individual homes, drives and accessways, contaminated soil and pollution, the section 106 agreement, and the plant;
• has involved its planning, enforcement, building control, Highways, and environmental health team, including relevant external bodies such as the Environment Agency in its considerations of the planning control concerns. This has also confirmed risks to residents, pollution, and road users are limited;
• has met with Mr X and the resident management company on a number of occasions to discuss their concerns and provided updates on what it aimed to do. This included new concerns raised during 2024 and 2025 about the development;
• sought information from the developer or his agent, chased responses, and finally set deadlines for responses to be received. It is clear the developer did not engage well with the Council. It also became aware of his financial difficulties which is likely to have impacted its decision making around what action to take and the benefits of such action; and
• it sought legal advice on some planning control concerns where the ownership and responsibility of what has been developed is complex. It shared the information with Mr X, the resident management company, and the developer. This has included options how to resolve the planning enforcement concerns through a retrospective planning application and certification of the plant.
62. While I have not found fault in the process the Council followed, I have also considered whether it caused unnecessary delays. In most enforcement cases I would have found fault due to delays for the significant amount of time it has taken in its attempts to resolve the matters with the developer, agent, and the resident management company. In this case in excess of 18 months.
63. However, I have not seen evidence the Council has let the case drift without any attempts to progress the enforcement concerns since early 2024. It has consciously decided not to start formal action due to the impact such action may have on Mr X and other residents. This is because enforcement action is likely to be served on both the developer and residents. Instead, it has worked longer on attempting to resolve the breaches of planning control through a retrospective planning application and required certification of the plant. This is therefore part of the decision making process, and the Council was entitled to reach its views.
64. I acknowledge the planning enforcement process needs to be clear and transparent. Therefore, given the time it has taken so far, I would expect the Council to reach its view whether to take formal enforcement action against the developer and/ or the residents without further delay. This is if there is no progress in the retrospective planning application and certification of the plant. It remains the Council’s decision what, if any, action to take, including who such action should be issued against.
65. In addition, I understand Mr X and other residents may feel it is unfair they may be held responsible for some costs, responsibilities, and requirements as a result of what the developer has built. However, the Council’s role was to consider whether what was built is or would be acceptable in planning terms. Any financial losses residents may have as a result are contractual or private matters with the developer, which they can bring to a courts attention should they decide to do so.

Complaints handling

66. Mr X complained to the Council in Spring 2024. The Council provided its response three month later. While this was later than set out in its policy, it remained in contact with him and arranged a site meeting. I have therefore not found fault in this part of its complaints handling.
67. Mr X asked the Council to escalate his complaint in 2025. I understand he was not provided with a final complaint response. This was fault.
68. In this case, a final complaint response was likely to have been a response where the Council did not uphold the complaint about how it had handled and considered Mr X’s concerns, along with its intentions on how to progress and consider the outstanding planning control and other concerns.
69. I found the delayed complaints handling caused Mr X a limited injustice. This is because the Council continued to discuss, meet or share some updates and options with him during this time. Also, it did not prevent the Ombudsman considering his complaint in this case. An apology would therefore be appropriate to acknowledge the impact this had on him.

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Action

70. To remedy the injustice the Council caused to Mr X, the Council should, within one month of the final decision:
1. apologise in writing to Mr X for the delay in its complaints handling relating to the Council’s handling of breaches of planning control.

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.

71. The Council should provide us with evidence it has complied with the above actions.

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Decision

72. I intend to complete my investigation with a finding of no fault by the Council on the substantial matters complained about. There was some fault in the Council’s delayed complaints handling, which caused Mr X some frustration. The Council should apologise to acknowledge this.

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Investigator's decision on behalf of the Ombudsman