Summary: Mr X says the Council was dishonest and inefficient when it considered and determined two planning applications. He also says the Council did not properly investigate breaches of planning control at the site of the planning applications. The complaint was closed because there was no fault by the Council.

The complaint

1. I refer to the complainant here as Mr X. Mr X says:
• The Council was dishonest and inefficient when it considered and determined two planning applications;
• The Council did not properly investigate breaches of planning control at the site of the planning applications;
• The Council did not properly consider and respond to his complaints.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. I examined the complaint and background information provided by Mr X and the Council. I discussed matters by telephone with Mr X’s partner. I sent a draft decision statement to Mr X and the Council and invited the comments of both parties on it.

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What I found

Planning enforcement guidance

7. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 (the Act) as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
8. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action.
9. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the Magistrates’ court.
10. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2019) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’.

‘’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.”

11. Councils have a choice of different enforcement options so as to secure a satisfactory remedy for a breach of control. Not all cases will, therefore, be dealt with in the same way. The options range from taking no formal action to issuance of an Enforcement Notice.

Background

12. The Council granted outline planning permission for a major development in 2015. It then considered and approved a reserved matters application in 2020.
13. Mr X says the developer breached conditions with regard to drainage, access, and changes to the layout of a road. Mr X says he has been disturbed by noise, dust, vibration, pollution, and obstruction of a public footpath. Mr X says there have been health and safety breaches and the Council did not consult on the layout of the site.
14. Mr X commissioned a report by a planning consultant. The consultant said the developer failed to comply with specific conditions of the outline planning permission. He also said other conditions were meaningless and unenforceable.
15. The consultant said the Council acted beyond its powers when it approved the reserved matters application. This is because a reserved matters application should only be made with regard to only those matters reserved by an outline planning permission and it may not be used to discharge other conditions on the outline planning permission. The consultant therefore considers the Council should not have validated, considered, or determined the reserved matters application.
16. The consultant says commencement of development at the site including the matter of access breached conditions in the outline planning permission.
17. The consultant wrote and complained to the Council on behalf of Mr X. Mr X also complained directly to the Council. Mr X raised the following matters:
• A condition of the outline planning permission included plans not related to access.
• Conditions of the outline planning permission are unenforceable.
• Another planning application was unlawful because variations of section 106 agreements cannot take place within the first five years.
• The reserved matters application allowed conditions to be discharged which is unlawful.
• The reserved matters application was not in accordance with the outline planning permission and imposed conditions that should not have been imposed on the outline planning permission so the Council’s decision was ultra vires and the development was not in accordance with the outline planning permission. A discharge application could not be used to regularise changes to the access.
• Another planning application was not a lawful application as you cannot vary a condition on the reserved matters application.
• The Council had a conflict of interest as it purchased affordable housing from the developer.
• It was unlawful to implement the outline planning permission as parts of the access road for the development are unadopted and so construction works are unauthorised.
• The developer should be asked to abandon the current permissions and submit a new full planning application.
• A non-material amendment application was unlawful as you cannot vary a reserved matters application since it is not a planning permission.
• Development of the site commenced unlawfully without compliance with numerous conditions and the terms of the section 106 agreement.
• The development was continuing without the council properly investigating breaches of planning control and enforcement complaints.
• The development did not have permission for highway works as the works are operational development and in breach of conditions of the outline planning permission.
• It was unlawful for the Council to agree a section 278 agreement relating to the unadopted highway.
• The access plan in a condition of the outline planning permission was approved but was not indicative as relation to another condition.
18. The Council provided a detailed response to Mr X’s complaint. I did not accept the consultant’s view the conditions were unenforceable. It did not accept the view that it could not renegotiate planning obligations within the first five years. It disagreed that the developer was attempting to discharge conditions through a reserved matters application.
19. The Council accepted there was a breach of planning control with regard to the access road to the development site. It accepted access to some plots within the development had been determined by layout on the reserved matters application and not by the access details approved under the outline planning permission.
20. The Council told Mr X that it was not expedient to take enforcement action as the access to the adopted highway was unchanged and the principle of access from the site on to the unadopted part of the road had been established. It later prepared an enforcement report which provided full reasons for its decision.

Finding

Concerns about validity of the outline planning permission

21. The Planning permission was granted in 2015. Mr X raised his concerns about the planning permission in 2021. Concerns about the validity of the planning permission or the Council’s handling of the planning application process are caught by the time restriction on the Ombudsman’s power to investigate complaints. Complaints must be made to the Ombudsman within 12 months of a complainant’s awareness of the matter. I cannot now investigate Mr X’s complaint that the Council was dishonest and inefficient when it considered and determined the outline planning application.

The Council did not properly investigate breaches of planning control at the site of the planning applications

22. I recognise Mr X and his planning consultant dispute the legality of the various planning permissions granted by the Council involving this development. But it is not now for the Ombudsman to interpret the law. That is a matter for the courts by way of judicial review. It is not likely that the High Court will hear an application for a judicial review now as such an application would be out of time.
23. Our role is not to provide answers to each and every criticism a complainant may have about a council. Instead it is to consider allegations about what the authority has done wrong and whether the alleged fault has caused a significant injustice to the complainant.
24. I have read the Council’s planning enforcement report as well as its responses to Mr X’s complaints. I am satisfied the Council carried out a proper investigation into the enforcement complaint and considered the range of enforcement options open to it. Enforcement action is discretionary. This means the Council has the power to take enforcement action but it does not have to take enforcement action if it considers there are good reasons not to do so.
25. The Council explained its decision to Mr X and recorded its reasons for the decision not to take enforcement action against the identified breach of planning control. I do not find fault in the process leading to the Council’s decision.

The Council did not properly consider and respond to his complaints

26. I note Mr X’s grievance about the handling of his complaints not least the time taken by the Council to respond which was outside its published timescales.
27. However, where we do not find fault and injustice on the substantive issue of the complaint, we do not normally pursue complaints about a council’s complaint handling. I do not find there is significant injustice suffered by Mr X here to warrant pursuit of this point by the Ombudsman.

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Final decision

28. I closed this complaint because I did not find fault by the Council in the substantive issues of the complaint.

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Investigator's decision on behalf of the Ombudsman