Summary: Mr X complained that, following its approval of an extension to a retail development, the Council failed to enforce a minimum width of footpath of 1.5 metres. The developer has since removed the main obstructions. I have ended my investigation, because further investigation is unlikely to lead to a finding of fault or remedy for Mr X.

The complaint

1. Mr X complained that, after it approved a planning application to extend a retail development, the Council did not ensure the footpath was as wide as was shown on the approved plans. Mr X says that this means he is forced to walk on the access road because the footpath is not wide enough for his child in a pushchair, nor would it be accessible for wheelchair users.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the injustice to the complainant is not significant enough to justify our involvement continuing, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered:
• the information provided by Mr X and the Council;
• the information on a previous case file about this matter;
• relevant law and guidance, as set out below.
4. 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

Planning law and guidance

Planning applications

5. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
6. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Planning enforcement

7. Planning enforcement is discretionary. Where a council finds a breach of planning control, it may decide whether the breach causes harm to the public. Government guidance says enforcement action should only be taken if it would be proportionate to the breach.

Permitted development rights

8. Permitted development rights (PD rights) are set out in regulations. If a development complies with PD limits, it is deemed to be approved by the process of law and can be carried out without making a planning application to the council.

What happened

9. The Council approved the proposed extension of a retail development. A planning condition required the development to be undertaken in accordance with the approved plans, which show a 1.5 metre wide footpath. The extension was completed in 2018.
10. Mr X told the Council the footpath was too narrow in January 2019. The Council asked the developer to carry out remedial work. The developer did carry out work to increase the width of most of the footpath but it was not 1.5 metres wide along its entire length.
11. One section of the footpath is narrower than 1.5 metres because “click and collect” collection lockers were installed for another company. These were installed using “permitted development” rights, which meant there was no need for permission from the Council before installing them. There were also other obstructions, including a bench.
12. In response to my enquiries, the Council provided evidence that the developer had removed the lockers by late March 2020. Mr X complains about the delay in doing so. Mr X says a bench is still causing an obstruction. The Council told me it had considered the location of the bench, which had been moved, and decided it was satisfactory. Therefore, it does not propose to take any further action.

My findings

13. 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.
14. In this case, the Council accepted the footpath was too narrow and did not comply with the planning consent given. It asked the developer to widen the footpath. The developer did so but a short section was still too narrow for pushchairs and wheelchairs.
15. The Council continued to negotiate with the developer to resolve the problem and the developer removed the main obstructions in March 2020. Mr X is unhappy that it took over a year from when he first reported the problem to the Council to resolve the matter. However, the speed at which the developer acted was not within the control of the Council.
16. There was no delay in the Council asking the developer to put the problem right. It would only have taken formal enforcement action as a last resort. As the developer said it would take action, the Council was entitled to decide it was better to wait for it to do so rather than start formal enforcement action.
17. I do not consider we should investigate Mr X’s complaint further, and my reasons are as follows:
• The developer has now removed the obstructions, apart from the bench;
• The Council considered the siting of the bench and decided it is appropriate. It is not my role to say whether its decision was correct;
• The Council followed the process we would expect in considering whether enforcement action was needed and so I am unlikely to find fault;
• I have not found the Council at fault for delay; and
• There is no remedy or meaningful outcome I could achieve for Mr X by continuing to investigate his complaint.

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Final decision

18. I have ended my investigation as I am unlikely to find fault or be able to provide a remedy or meaningful outcome for Mr X.

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Investigator's decision on behalf of the Ombudsman