Stratford-on-Avon District Council (19 008 806)

Category : Planning > Other

Decision : Not upheld

Decision date : 25 Mar 2020

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to enforce planning conditions on a development near his home. He said he suffered disruption and unsightly views as a result of this. We have found no fault with the Council’s actions and have closed the case.

The complaint

  1. Mr X complained the Council failed to enforce planning conditions on a development near his home. He said the Council failed to enforce:
    • a construction management plan which caused significant disruption to him and his neighbours;
    • a condition for a landscape scheme which left the development unsightly; and
    • various structures erected by the developer without consent.

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What I have investigated

  1. I have investigated Mr X’s complaints about the delayed landscape scheme, and the failure to enforce structures erected without consent.

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The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

  1. I have considered:
    • Mr X’s complaint and supporting information. I have also spoken to Mr X about his complaint;
    • the Council’s responses to Mr X’s complaint; and
    • the online information about the planning application.
  2. I have written to Mr X and the Council with my draft decision and considered their comments.

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What I found

Planning enforcement

  1. The law says planning authorities may take enforcement action where there has been a breach of planning control. It says enforcement action is discretionary.
  2. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
  3. Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers

What happened

  1. In March 2017, the Council granted approval for a new house on Mr X’s street. The permission included a condition that prior to commencement of development, a scheme of landscaping shall be submitted and approved by the planning authority. It said the approved scheme shall be carried out concurrently with the development and completed prior to the first occupation of the development.

Mr X’s complaint

  1. Mr X complained to the Council that the development did not comply with the landscaping condition. The Council served a Beach of Condition Notice in July 2018. Mr X said this resulted in the developer submitting several iterations of a landscape scheme over the following 18 months. He said these were all rejected by the Council and the condition was still outstanding when Mr X complained to the Ombudsman.
  2. In August 2018, Mr X complained that the developer had made alterations to the development without prior consent. The Council investigated and considered the alterations under a separate application. The Council closed the case as a technical breach.
  3. When Mr X complained about the erection of a fence and a pergola, the Council investigated. The Council took enforcement action which required the developer to submit a retrospective planning application. The developer submitted this in March 2019.

The Council’s response

  1. The Council told Mr X it had taken enforcement action in accordance with its procedure. I have seen evidence of this. It acknowledged the landscaping condition remained outstanding despite the requirement for it to be discharged pre-commencement.
  2. The Council rejected Mr X’s accusation that the Council was complicit in the delay. It said, on the basis that the harm being caused by the delay is not significant, the Council could not justify any sanction other than the Breach of Condition Notice, which it had served. It concluded the Council would review the enforcement case when it had determined the current retrospective application for the fence and pergola.

Update

  1. The Council refused the retrospective application in June 2019.
  2. During the course of my investigation the Council approved a landscaping scheme. When I spoke to Mr X, he said although it was good that the Council had agreed a scheme, there was no guarantee the developer would adhere to it. I explained this was speculative, and not something I would consider.

My findings

  1. The law says that a council has discretion whether or not to take enforcement action when it is informed of an alleged breach. In this case, the Council investigated all the alleged breaches reported by Mr X. It went on to take action against the developer. It issued a Breach of Condition Notice, and required a retrospective application which it subsequently refused.
  2. I cannot question its decision to approve the original planning application or its decisions to reject the landscape schemes submitted by the developer. I have investigated the processes the Council followed in terms of responding to allegations of planning breaches. The Council followed national legislation, and its own procedure.
  3. The time between approval of the development in March 2017, and approval of a landscaping scheme in January 2020 is an extensive period. However, during this time, the Council maintained contact with the developer and Mr X to try and resolve the situation.

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Final decision

  1. The Council was not at fault. It investigated Mr X’s complaints and took enforcement action in line with its procedure.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr X’s complaint about the construction management plan as this happened over 12 months ago and I have not identified a reason to exercise my discretion.

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Investigator's decision on behalf of the Ombudsman

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