Summary: Mrs X complained the Council failed to take enforcement action regarding alleged breaches of planning conditions in respect of landscaping and tree planting as part of a nearby building development. Mrs X says the Council’s lack of enforcement action caused her significant avoidable frustration and stress. We found fault by the Council. The Council has agreed to provide an apology and financial remedy to Mrs X and take steps to prevent a recurrence of the identified fault.

The complaint

1. Mrs X complained the Council failed to take enforcement action regarding alleged breaches of planning conditions in respect of landscaping and tree planting as part of a nearby building development. Mrs X says the Council’s lack of enforcement action caused her significant avoidable frustration and stress. She would like the Council to take appropriate action to ensure the same issues do not happen again.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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What I have investigated

5. I have exercised discretion to investigate Mrs X’s complaint dating back to July 2021, when the Council decided the relevant planning application. This is because Mrs X only became aware of some of the details relating to the planning application in April 2025.

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How I considered this complaint

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.

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What I found

Planning permission

8. Most development needs planning permission from the local council. When granting planning permission, councils may impose conditions to make the development acceptable in planning terms. The Government’s National Planning Policy Framework says councils should keep conditions to a minimum and use them 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
• reasonable in all other respects

Enforcement action

9. The National Planning Policy Framework (NPPF) says effective enforcement is important to maintain 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.
10. 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.
11. 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.

The Council’s Planning Enforcement Strategy

12. This document says the Council will thoroughly investigate allegations of suspected breaches in accordance with the principles of Good Enforcement as set out in the Local Government Concordat and the principles contained within the Regulators Code. It says the five principles of good regulation are:
• Transparency
• Accountability and Openness
• Proportionality
• Consistency
• Targeted (at cases where action is needed)

The Council’s Regulatory Enforcement Policy

13. This policy sets out how the Council makes decisions on enforcement action. It says decisions about when and how to take enforcement action are based on several guiding principles, including transparency and openness. The policy says this is to ensure that enforcement action taken by the Council is easily understood.

Principles of good administrative practice

14. In 2018 the Ombudsman published a guidance document (updated in January 2025), setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes:
• Stating the criteria for decision making and giving reasons for decisions
• Keeping proper and appropriate records
• Explaining clearly the rationale for decisions and recording them

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. In 2016, the Council granted planning permission for the development of several houses on a site located to the rear of Mrs X’s property and next to an area of woodland. The planning permission contained conditions, one of which was the requirement for a landscaping scheme to be submitted before works began.
17. The Council approved a further application later that same year relating to the landscaping plan submitted by the applicant.
18. Around this time, the developer felled a number of trees as part of the building works.
19. In July 2021, the Council approved a further planning application which varied the conditions relating to the landscaping plan. The approved application required the applicant to provide a detailed landscaping scheme for the site, and for this to be approved by the Local Planning Authority within two months.
20. The Council contacted the applicant in December 2021 as the condition relating to the provision of the landscaping scheme was not met within the specified timescale.
21. During 2022, the Council reviewed the case and considered how compliance with the planning conditions was progressing. The Council also contacted the developer regarding this matter.
22. Mrs X contacted the Council in early 2023 regarding the landscaping and woodland management at the development site. The Council reviewed the case and contacted the developer later that year to discuss replanting.

Mrs X’s complaint

23. In December 2023, Mrs X complained to the Council. She said she had previously complained in 2021 about a breach of planning conditions regarding the felling of trees at the development site. Mrs X said the Council had previously reassured her it was addressing matters regarding the replanting and future protection of the woodland, but to date, the developer had not carried out replanting. Mrs X said she would like the Council to do what it said it would do and for it to ensure the area was replanted and protected.
24. The Council responded to Mrs X on 5 January 2024, acknowledging her previous complaints about the need to replant trees as part of the development. The Council said the developer had applied to vary the landscaping requirements, and the Council had agreed planning conditions requiring the developer to submit further details within two months. The Council said the developer had not provided these additional details. The Council told Mrs X it was continuing to review this as an enforcement matter. It said it would review the case and update Mrs X in due course, and that it would continue to work to ensure the developer undertook the appropriate landscaping work.
25. At about the same time, the Council contacted the developer to discuss replanting.
26. Mrs X escalated her complaint to stage two on 11 January 2024. She said the Council told her in March 2021 the developer would be required to replant the felled area. She said the Council also told her it would serve a landscape and management plan to ensure the landowner maintained the land. Mrs X complained the matter had been ongoing for five years and nothing had been done.
27. The Council replied on 7 February 2024. The Council said the applicants had provided some details regarding tree planting, but had not provided sufficient detail in relation to tree sizes and a management plan. The Council said it had therefore imposed a condition as part of the approved application in July 2021 for the developer to provide further details. The Council acknowledged however, that the developer had not provided these details. It said its enforcement team had discussed what appropriate action to take and decided to write to the developer, requiring submission of a discharge of conditions application for the details of the landscaping scheme. Following this, it considered replanting in the next available planting season was appropriate. The Council said if the developer did not submit the required information, it would consider the expedience of other enforcement action.

What happened next

28. The Council contacted the developer again during 2024 regarding the tree replanting.
29. On 12 December 2024, Mrs X emailed the Council again. She said the developer had not carried out any replanting, other than two small trees in September 2024. Mrs X said the area which the developer had felled still required replanting. She said she considered the Council had not maintained regular contact with the developer and that she was disgusted with the Council’s handling of the planning breach.
30. Mrs X contacted the Council again in January 2025 as she said the Council had not responded. Mrs X asked the Council to keep her up to date and to do what it had previously said it would do.
31. The Council responded on 24 January 2025. It said it expected planting to be carried out prior to April, (the end of the planting season), and if the trees were not in place by that time, it would consider its formal options. The Council said it would do what was necessary to ensure compliance.
32. Mrs X emailed the Council again on 31 March 2025. She said the planting season had ended and the developer had not carried out the required planting. Mrs X said she had given the Council the time it asked for to resolve her complaint, but it had failed to do so. Mrs X said she was angry and frustrated with the Council’s handling of the development and its lack of enforcement regarding the replanting.
33. The Council replied on 14 April 2025 and said it had tried to secure the planting of trees in the area. It said however, the application approved in July 2021 approved a landscaping plan but also required the submission and approval of a subsequent landscaping plan within two months of the decision. The Council said this was not an enforceable condition. It said this was because the condition required the submission of details that may conflict with what was already approved on plans which already had conditions to be complied with. In addition, the Council said it was not reasonable for a condition to require a timeframe in which the planning authority must approve details. The Council said the condition on the approved application was defective, and this was the reason the Council had had to take an informal approach regarding compliance. The Council said there was no legal basis for pursuing the developer through the courts, but it would continue to encourage the replanting in full.
34. Mrs X emailed the Council on the same day. She said she had been emailing the Council about the replanting for several years, and it had only now told her it was unable to take enforcement action. Mrs X subsequently brought her complaint to the Ombudsman.

Analysis

35. The Council says its approach to enforcement action was guided by national and local policy. It says its officers assessed whether the breaches caused harm and whether formal action was justified. The Council says its records show ongoing reviews of the case, discussions with managers and monitoring of compliance, especially regarding landscaping and tree planting.
36. The Council says that based on the information available within its records, it seems officers concluded the harm caused could only be mitigated through further applications and the submission of information. It says it would have been judged to be more expedient to negotiate a solution with the developer rather than take formal enforcement action. The Council says this approach accords with the guiding principle of the NPPF and the Council’s local policies and strategy.
37. I acknowledge the Council may use its discretion about how to use its enforcement powers. I also acknowledge the Council’s comments about why it decided not to take enforcement action in this case; it is for the Council to make these decisions.
38. However, the Council’s records do not show its rationale for its enforcement decisions, nor do they demonstrate how or why it decided it was not expedient to take enforcement action. The Council’s response to enquiries acknowledges that there is limited written record of conversations between officers previously involved in the case and line managers.
39. The Council’s enforcement strategy refers to five principles of investigation, including transparency, accountability and openness. In addition, the Council’s Regulatory Enforcement Policy states the Council’s decisions about when and how to take enforcement action will be taken based on several guiding principles. One of these principles is transparency and openness to ensure that the enforcement action that will be taken is easily understood.
40. The lack of records to show the Council’s rationale for its decisions is not in line with our published principles of good administrative practice, (as referenced to in paragraph 14 above), or the Council’s own enforcement strategy and regulatory enforcement policy; these policies state the importance of openness and transparency. On this basis, the Council is at fault. The injustice to Mrs X is uncertainty regarding how the Council made its decisions about what, if any, enforcement action was appropriate.

The defective planning condition

41. In its response to our enquiries, the Council said it granted the original permission with a condition requiring the submission of a landscaping scheme before building works commenced. The Council says the landscaping scheme was submitted and discharged, and the trees in question were removed. It says the Council recommended the felled trees were to be included within a revised Arboricultural Impact Assessment (AIA) which was granted as part of the developer’s subsequent application.
42. However, the Council says it granted this application without the necessary details to vary the AIA. It says from a compliance perspective, the conditions would not meet the six standard tests set out within the Government’s guidelines. The Council says the application should have either been refused on the grounds that no further information was presented, or approved after the required details were submitted. In addition, the Council says the wording of one of the conditions left the requirements of the condition outside the developer’s control, as it referred to the Local Planning Authority providing approval within a specified timeframe. The Council says the developer would have no control over the time period in which the Council approved the scheme, meaning the condition was unreasonable.
43. The Council refers to the condition as defective and says this appears to have resulted from an oversight during the Council’s drafting or approval process.
44. It is positive the Council has identified the defective condition and acknowledged the oversight within its process. Nevertheless, this oversight is fault by the Council. In addition, I have seen no record to indicate the Council explained this issue to Mrs X before April 2025, despite her repeated contacts prior to this.
45. This fault caused an injustice to Mrs X, namely distress and frustration at the Council’s stated inability to enforce the alleged breach, and the time taken by her in pursuing her complaint.
46. I acknowledge Mrs X’s comments that she considers an apology and financial remedy from the Council does not conclude the matter of the outstanding replanting. I also acknowledge the Council’s correspondence with Mrs X dated 14 January 2025 that it will continue to encourage the replanting in full. The Council has also separately confirmed its discussions with the developer are ongoing.

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Action

47. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mrs X. 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;
2. Make a symbolic payment of £300 to Mrs X in recognition of the uncertainty, distress and frustration identified, and
3. Remind staff to adhere to the principles of good administrative practice, the Council’s enforcement strategy and its regulatory enforcement policy, specifically regarding the retention of appropriate records to show the Council’s rationale for decisions and to maintain transparency and openness.
48. The Council has also agreed to take the additional following action within three months of the final decision:
1. Identify and provide relevant training and support to staff involved in planning decisions to prevent recurrence of the identified fault.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I have found fault causing injustice. The Council has agreed to take the above action to remedy the injustice and I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman