Summary: There was fault by the Council as it identified breaches of pre-commencement planning conditions in February 2021 but has supplied no evidence that it has taken any action since then. The Council’s proposal to review progress and in addition, to tell Mr X of the result, remedies the injustice. Mr X complains about damage to his property by the developer because of the delay, but damage to property is a private matter between him and the developer.

The complaint

1. The complainant, who I shall call Mr X, complains the Council did not place conditions on the reserved matters planning application to protect a listed building from damage.
2. The Council has failed to enforce planning conditions on the development next to his property which has meant that:
• Contaminated water from the development site is flowing over his property.
• Vibration from construction works has damaged his property.
3. Mr X also complains that demolition of buildings adjoining his property has taken place without consent and the Council has not taken action over this.

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What I have investigated

4. I have investigated matters that have occurred from October 2019, after the Council made a decision on the outline planning application. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I read the papers put in by Mr X and discussed the complaint with him.
9. I considered the Council’s comments about the complaint and any supporting documents it provided.
10. Mr X and the organisation 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. Mr X owns two listed cottages, that he is renovating.
12. The Council granted outline planning permission for residential development (access and scale to be considered) on an old factory site behind the two cottages he owns in October 2019. The decision notice contained over 20 planning conditions.
13. The developer put in a reserved matters application in February 2020. This sought consent for appearance, landscaping and layout for the residential development. This Council approved this application in September 2020.
14. Mr X’s main concern is the impact of the development on his properties. He explained that he tried to make an insurance claim against the developer, but was referred to their solicitors. So, he would need to claim in the courts. Mr X says he believes that vibration from construction work has damaged the properties and he is concerned about contaminated water from the site entering his property. If Mr X believes the developers actions have damaged his property then he would need to take legal action against the developer, through the courts if necessary. The Ombudsman can only investigate the Council’s actions, not the developers, so cannot help him to get compensation/damages from the developer.

Demolition of adjoining building

15. Mr X’s complaint to the Council in January 2021 said the developer removed 15 metres of former warehouse building in October 2020. Mr X says he told the developer that a demolition order and listed building consent would be needed, before complaining to the Council. The structures formed part of the boundary wall between Mr X’s property and the developers site.
16. In response to Mr X‘s complaint, the Council said ‘the warehouse wall was not listed but listed building consent may be required to demolish certain sections of the wall due to the connected nature of the wall to heritage assets’. The developer put in a listed building application in January 2021, which Mr X could comment on. The Council approved the listed building consent in November 2021 for ‘demolition of the existing wall bounding Mr X’s property and structural crack repairs to the front elevation of Mr X’s house’.
17. The Council has said that the developer put in a demolition notice for various buildings, including the ones Mr X referred to, in January 2021.
18. I understand Mr X’s concerns on the demolition. However, it is the developer who started work before putting in the correct notices. In response to complaints, the Council has now ensured the demolition notice and listed building consent has been submitted and approved. So, I can find no evidence of fault on this point. I understand that Mr X may still have concerns. The Council has told him the Party Wall Act process would apply to the boundary wall, which is a private legal matter between Mr X and the developer.

Planning conditions on the reserved matters permission

19. The 2018 Committee report on the outline planning application said that ‘neighbour concerns regarding the safety of the partially demolished buildings on site and potential for damage to private property by falling debris, water seepage and contamination is a civil matter between the neighbour and the developer. Other matters raised in terms of required details of levels, boundary treatments and drainage will be matters for consideration at reserved matter stage and conditioned accordingly’.
20. Mr X explained to me that the outline planning permission didn’t include the area around their property, contamination beyond the boundary of the site or their listed buildings. Mr X said the Council said that it would consider this in the reserved matters application.
21. While I note Mr X’s concerns I cannot find any written evidence the Council intended to condition the application to include the contamination on their property, water seepage or damage to their listed buildings. The 2018 Committee report is clear that any damage to Mr X’s property is a civil matter between him and developer. So, I cannot see any fault on this point. I can see the reserved matters application did include conditions about contamination and surface water drainage. There was also a condition requiring the development be carried out in accordance with the plans showing boundary treatments and levels. This seems to be inline with the 2018 Committee report.

Enforcement of planning conditions

22. Mr X complains the Council has failed to enforce planning conditions on the development next to his property which has meant that:
• Contaminated water from the development site is flowing over his property.
• Vibration from construction works has damaged his property.
23. The Council said that it sent a letter to the developer in February 2021 to advise that no works were carried out on site until they complied with the outstanding pre-commencement conditions on the outline planning consent. There were also several pre-commencement conditions relating to the reserved matters consent that the developer has not complied with.
24. Mr X refers to two specific problems. First, the Council has not enforced planning conditions relating to vibration from construction works. Mr X believes that vibration has damaged his property and there are now large cracks. He thinks the Council should have monitored the construction works rather than just leaving the developer to do it with a construction plan.
25. The Council has said the developer put in a construction environmental plan which says ‘party wall agreements will be in place before work near adjacent structures’. The Council said the ‘construction environmental plan also sets out measures to ensure that no contaminated water enters a water course, and to minimise the amount of vibration arising to the local environment, although this is from a noise/disruption perspective, rather than potential damage to adjacent buildings, which is a private matter’.
26. Mr X’s main complaint is that the developer has caused damage to his property. Resolving this is a private legal matter between him and the developer. I understand that Mr X feels the Council could have helped him more but the Council cannot resolve the fundamental issue of whether the damage was caused by the developer or not via the planning condition.
27. Second, Mr X complains about damage from contaminated water which is flowing from the site on to his property. The Council says that ‘conditions on the outline consent (environmental management plan and construction method Statement) have been discharged and the details include measures to minimise impacts during works. The construction environmental plan sets out measures to ensure that no contaminated water enters a water course’. Mr X says that leachate from the site is running off onto his land and causing damage and financial loss. Again, I understand that Mr X feels the Council could have helped him more but the Council cannot resolve the fundamental issue of whether the contamination issue on his property was caused by the developer or by the previous use of the site via the planning condition.
28. It is the developers responsibility to comply with planning conditions, but once the Council is aware of non-compliance this should be monitored. The Council granted planning permission in September 2020 and work started on the site in October 2020. The Council wrote to developer in February 2021 about non-compliance with pre-commencement conditions. There are still pre-commencement conditions the developer has not complied with and discharge of several conditions is still outstanding. This is a large site and there does seem to have been delay by the Council in following up non-compliance with conditions from February 2021 onwards. This is fault.
29. I do not consider that this delay has caused Mr X injustice. The injustice he claims is damage to his property and I do not consider the delay in following up these pre-commencement conditions would have made a difference to situation he finds himself in, i.e. potentially having to make a claim against the developer for damages. But I do recognise his dissatisfaction that the developer has not complied with the pre-commencement conditions. The Council has said that it has opened an enforcement case and a review of progress is taking place at present. This is a satisfactory way forward, along with ensuring the Council tells Mr X the results of the review.

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Agreed action

30. The Council writes to Mr X within 3 months of the date of the decision on this complaint with the results of the review of monitoring planning conditions on the site.

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Final decision

31. I have completed my investigation of this complaint. This complaint is upheld, as there has been delay by the Council after it identified that planning conditions have not been complied with. Telling Mr X of the result of the review of progress remedies his injustice on this point, as his complaint about damage is a private legal matter between him and the developer.

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Parts of the complaint that I did not investigate

32. I cannot investigate the recent listed building consent granted to a third party on Mr X’s property. This is because Mr X has not raised a complaint about this through the Council’s complaints procedure. By law, the Ombudsman has to give the Council a chance to consider a complaint before investigating it.
33. We cannot investigate late complaints unless we decide there are good reasons. So, I have not exercised discretion to investigate the outline planning consent. Mr X complained to the Council in 2018 and mentioned complaining to the Ombudsman then, but did not do so. I do consider it reasonable for Mr X to have continued a complaint about the outline planning consent at the time. This is a late complaint and I have seen no good reason to accept it for investigation now.

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Investigator's decision on behalf of the Ombudsman