Summary: The Council did not record its reasons for not publicising changes to proposed development near Ms X’s home, but this did not affect its decision to grant the development planning permission.

What I have investigated

3. I have investigated Mr X’s complaint about the Council’s decision to grant planning permission. I have not investigated Mr X’s complaint about the Council’s handling of the enforcement notice for the reasons given in paragraphs 57 to 59 of this statement.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. We may investigate complaints made on behalf of someone else if they have given their consent. Here, Ms X has given her written consent for Mr X to represent her in making this complaint. (Local Government Act 1974, section 26A(1), as amended)
8. 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

9. I have:

• considered Mr X’s written complaint and supporting papers;
• offered to talk to Mr X about the complaint;
• considered planning information about the development site that is available on the Council’s website;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared, where possible, the Council’s comments with Mr X; and
• given Mr X and the Council an opportunity to comment on a draft of this statement.

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What I found

Background

10. Most development needs planning permission from the local council. Developers are responsible for preparing the application, including the supporting plans and information. Once a council receives an application it must check it is complete and in the correct form before registering it.
11. Councils must make planning decisions in line with relevant policies in their development plans unless material planning considerations suggest otherwise. Material considerations concern the use and development of land in the public interest, and not private concerns such as the applicant’s personal conduct or house prices. Material considerations include issues such as overlooking and traffic generation.
12. Councils must publicise planning applications so people may comment on development proposals. Councils must take account of peoples’ comments about material planning issues in deciding applications, but they do not have to agree with those comments.
13. Developers may change their proposals before the council decides their application. Councils may but do not have to publicise changes to proposals. The Government’s Planning Practice Guidance (PPG) says councils will decide if further publicity is necessary in the interests of fairness. And, in reaching that decision, they:

“…should consider whether, without re-consultation, any of those who were entitled to be consulted on the application would be deprived of the opportunity to make any representations that they may have wanted to make on the application as amended.”

14. Normally, a planning officer will write a report assessing the proposals, taking account of any competing or conflicting policies and material considerations. The report usually ends with a recommendation to grant or refuse planning permission. A senior planning officer will decide most applications. It is for the decision maker to decide the weight given to any material consideration in determining a planning application.
15. Normally, councils grant planning permission if they consider the development is in line with planning policy and they find no planning reason(s) of sufficient weight to justify a refusal. If councils refuse planning permission, the law says they must give reasons. A developer can then consider the reasons and decide whether to appeal and or make another application, changing the development to overcome the refusal reasons. Independent inspectors from the Planning Inspectorate decide most planning appeals for the responsible Government minister.
16. Where development takes place either without, or not complying with, a planning permission, there will be a breach of planning control. Subject to legal time limits, councils may, but do not have to, take action against breaches. If a council wishes to act it usually has choices. One possibility is to issue an enforcement notice. The law says a council must be satisfied it is “expedient” to issue an enforcement notice. An enforcement notice will set out what people need to do, and when, to resolve the breach. People have a right to appeal to the Planning Inspectorate against an enforcement notice. It is a criminal offence to not obey an enforcement notice once it is in force.
17. The law gives councils limited powers to refuse to decide planning applications. For example, a council may refuse if an application seeks planning permission for development an enforcement notice says is a breach of planning control.
18. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over such works.

What happened

19. A developer, after carrying out development near Ms X’s home, applied retrospectively for the necessary planning permission. The Council refused to grant planning permission and issued an enforcement notice (‘the Notice’). The Notice set out what the developer needed to do and when to deal with the breach of planning control. Following an appeal, the date for complying with the Notice passed. Meanwhile, the Council adopted new planning policies that replaced those considered when the Council refused the retrospective planning application and issued the Notice.
20. Two years later, Mr X contacted the Council saying the developer had not complied with the Notice. The Council replied saying its enforcement investigation was continuing.
21. About a year later, Mr X complained about the Council’s failure to secure compliance with the Notice. The Council also received a planning application for the site (‘Application One’). The Council continued its enforcement investigation and processed Application One. The Council told Mr X its next step would be to prosecute the developer for non-compliance with the Notice. The Council also told Mr X the Application One development was “materially different” to that covered by the Notice. Mr X disagreed and objected to Application One.
22. The Council refused planning permission for Application One. The Council’s reason for refusing planning permission was the development did not meet policies about internal floor space for buildings. The developer immediately made another planning application for similar development (‘Application Two’). Mr X chased the Council about progress with its enforcement investigation. The Council told Mr X it hoped soon to pass its enforcement case to its lawyers. Meanwhile, Mr X objected to Application Two, referring to the Notice.
23. The Council received new plans for the proposed Application Two development. The Council did not place the new plans on its website or otherwise publicise them. A few days later, the Council granted planning permission for Application Two, approving the new plans (‘the Development’). The Council also told Mr X it had started legal action and the enforcement case was now with the courts, which would set a date for a hearing.
24. Mr X complained to the Council. Mr X asked why the Council had not dealt with existing breaches of planning control on the site before granting planning permission. Mr X set out detailed reasons for why he considered the Council’s decision to grant planning permission was wrong and unsound.
25. Two months later, the Council had not replied to Mr X’s complaint. The Council apologised to Mr X and said it would investigate and respond ‘urgently’ to the complaint. Mr X also chased the Council about a court date for the enforcement case and said work on the site was not in line with the Application Two proposals. The Council gave Mr X the date of the first court hearing. An enforcement officer also visited the site to see if the Development complied with the planning permission. The enforcement officer then told Mr X about the new plans and said the work on site did not breach planning control. The enforcement officer suggested Mr X raise any concerns about the changed plans with the Council’s planning officers. (Later, the Council sent Mr X a copy of the approved plans.)
26. Mr X sent a further complaint to the Council, including the issues raised in the complaint he had made three months earlier. About a month later, the Council replied to the issues raised in Mr X’s two complaints. The Council’s response was concise and said its decision to grant the Development planning permission was sound and it had had no reason to refuse Application Two. The Council confirmed its planning officers had been aware of the enforcement history of the site and its report on Application Two showed it had taken account of Mr X’s representations. The Council said it had discretion to consult on plan changes. Here, it had not publicised a change that removed proposed development affecting the outside of an existing building.
27. Mr X continued with his complaint, repeating his concerns about the planning permission and explaining why he had found the Council’s response inadequate. Mr X also reported, and tried to report, further breaches of planning control on the site. Meanwhile, the Council secured a conviction in its enforcement court case.
28. The Council responded to Mr X, first apologising for taking about three months to reply. The Council grouped Mr X’s points into four categories: process; consultation; consideration of the application; and enforcement. On process, the Council said:

• its officers knew what development was proposed;
• ‘incorrect’ information in the developer’s application form was not material to its decision; and
• there was no time limit on receiving new information before it decided a planning application.

29. On consultation, the Council said:

• it had correctly publicised Application Two;
• it had considered Mr X’s representations;
• it did not usually consult on changes to proposals that its case officers considered were not significant; and
• it regretted its failure to place the new plans on its website, but this did not affect its planning decision.

30. On consideration of Application Two, the Council:

• pointed to its main reason for refusing Application One (see paragraph 22) and how Application Two addressed this issue;
• explained why external space for the Development was satisfactory and would not have justified a refusal of planning permission if found to be unsatisfactory;
• said it had considered the impact of the Development on neighbours but found no significant issues to justify refusing planning permission; and
• listed some of Mr X’s representations and said they were covered by non-planning legislation.

31. On enforcement, the Council said:

• its officer’s report on Application Two set out the planning history of the site;
• it had to consider Application Two on its merits;
• it did not have to refuse planning permission on Application Two because it had issued the Notice; and
• granting Application Two planning permission did not affect its enforcement court case.

32. Mr X asked the Council to consider his complaint at the final stage of its complaints procedure. The main points made by Mr X were:

• the Development was not materially different to the enforcement development;
• the Council had not addressed the reasons for refusing the retrospective planning application (see paragraph 19) in granting Application Two planning permission;
• the Council had not taken account of illegal built development on the site;
• the Council had not addressed the lack of external space for the Development;
• the Application Two form included wrong information and the developer had given a false legal declaration;
• the Development as built breached planning control; and
• the Council had failed to secure compliance with the Notice and allowed illegal development to continue for seven years.

33. In reply, the Council said it would respond to new points but could not add to its earlier response on Mr X’s continuing concerns. The Council said its officer’s report did not claim that all existing built development on the site had planning permission. That existing built development did not cause problems for neighbours’ amenities. And, the impact of that existing built development was the same whether the site was used as needed by the Notice or the Development. The Council also said it had investigated recent reports but found no breaches of planning control on the site. The Council signposted Mr X to the Ombudsman.
34. Mr X wrote again to the Council. Mr X said breaches of planning control had taken place since the Council last visited the site. Mr X also said the Council still had not placed the approved Application Two plans on its website or given him building control information he had asked for. Mr X repeated his concerns about the illegal building on the site and questioned how the Council could grant Application Two planning permission when the Notice needed the removal of similar development.
35. The Council replied, referring Mr X to its earlier responses. The Council also said the Development as built did differ “slightly” from the approved plans. The Council said this change did not cause “material harm” and so enforcement action was not expedient. The Council also gave Mr X information about building regulations. The Council again referred Mr X to the Ombudsman. The Council has also now placed the approved Application Two plans on its website.

Consideration

Introduction

36. My role is to consider whether in issuing the Application Two planning permission the Council acted with fault. In doing so, I have not found it necessary it address every detailed point raised by Mr X in his correspondence with the Council. But, I have carefully considered all Mr X has said, and the Council’s responses, in reaching my views on what I find to be the key issues affecting the Council’s decision to grant planning permission.

The Council’s decision to process Applications One and Two

37. Essentially, the planning use now approved for the site is the same as that said to breach planning control in the Notice. I therefore recognise Ms X’s concerns about the Council’s decision to grant Application Two planning permission given she, and Mr X, remain opposed to that planning use. Indeed, Mr X questioned whether the Council could consider Applications One and Two when it had issued the Notice. And yet, the law does not prevent councils for considering applications for development that is a breach planning control in an enforcement notice. Rather, the law gives councils discretion not to do so (see paragraph 17).
38. Here, several years had passed since the Council issued the Notice. The Council had also adopted new planning policies. These new policies were relevant to the planning use covered by the Notice and proposed by Applications One and Two. And, while Applications One and Two proposed the same use as appeared as a breach of planning control in the Notice, they each proposed development of a different scale/size. I do not find the Council at fault in accepting and deciding Applications One and Two.

The planning application form for Application Two

39. Mr X says Application Two included wrong information. The planning applicant is responsible for completing the application form. Generally, councils may assume the information sent is correct unless they have notice of errors. Here, Mr X’s key concern about Application Two was the applicant’s declaration about the existing ‘use’ of the site. The form gave the pre-Notice use as the existing use. Mr X says this was wrong as the site continued to be used for the development the Notice said was a breach of planning control. I recognise Mr X’s point. And yet, the authorised planning use of the site was the pre-Notice use. The evidence also shows the Council knew of both the authorised planning use and the unauthorised use, which was the subject of the Notice. I do not therefore find the application form misled the Council.
40. I also do not find the various ‘descriptions’ of the Application Two development that appear in the planning documents affected the Council’s decision making. Rather, the evidence shows the Council understood the development proposals.

Publicising Application Two

41. Another concern for Mr X was the publicity given to Application Two. From the information I have seen, the Council acted correctly to publicise Application Two by placing a notice near the site. Mr X sent representations on Application Two. And, the Council’s report, assessing the application, summarised Mr X’s representations on planning and land use matters. I cannot therefore find the Council failed to take those representations into account.
42. However, the developer changed the Application Two plans. Mr X points to the Council’s failures to ask for a new planning application or to publicise these new plans. The Council could not stop the developer sending new plans before it decided the Application. And, it was for the Council to decide whether the changes were so significant they needed a fresh planning application. Here, the new plans removed proposed external built development, which reduced the scale of the Application Two proposals. In those circumstances, I find no grounds to question the Council’s view that a new application was not necessary.
43. Having found a new application unnecessary, the Council then had to decide whether to publicise the new plans as a change to Application Two. The Council has said, where its planning case officers do not consider changes are significant, they do not usually publicise them. But, there is no evidence to show the Council actively considered whether to publicise the new plans for Application Two or made a contemporaneous written record of its decision not to do so. This is poor administrative practice and I thank the Council for agreeing to change its procedures to properly record such further consultation decisions in the future.
44. I have no reason to doubt Mr X would have made further representations if the Council had publicised the new plans. This is because, regardless of the scale of the proposals, the comments made by Mr X show he, and Ms X, were opposed in principle to development of the type proposed. And yet, on balance, I do not find that, if the Council had publicised the changes and Mr X had made further representations, it is likely to have affected the Council’s decision to grant planning permission. I therefore do not find the lack of a written record of the Council’s decision not to publicise the changes caused Mr X, or Ms X, significant injustice. However, the Council ought to have a record of how and why it decided not to publicise the changes.

Consideration of Application Two

45. The Council’s planning reason for refusing Application One concerned the development’s failure to meet policies about internal floor areas. The developer could consider if changes to the proposals might overcome that refusal reason. And, Application Two, proposed a ‘smaller’ development, with different floor level needs to those in Application One. I therefore find no grounds to question the Council’s decision to accept and decide Application Two despite refusing Application One.
46. The Council had to consider the Application Two on its merits against its current planning policies. Those planning policies had changed since it had issued the Notice. And, while Application Two proposed the same use as appeared as breach of planning control in the Notice, it was of a different scale. So, while I recognise Mr X’s concerns about the Council considering Application Two when the Notice was in force, I do not find fault here.
47. The Council prepared a report on Application Two. The report identifies relevant planning policies; summarises issues raised in peoples’ representations; gives the planning history of the site; and addresses relevant planning issues for deciding the application. The report also sets out the planning case officer’s assessment of the proposals against the relevant policies and planning issues. Overall, I find the report presents the information normally expected when a council is deciding a planning application.
48. On floor area, the Council’s report on Application Two shows it considered the proposals against the relevant internal floor area policies. That consideration showed the proposals met those policies.
49. However, Mr X had other concerns, including the Development’s non-compliance with external space policies. The Council had given the failure to meet such policies as a reason for refusing the retrospective planning application and issuing the Notice. And yet, when the developer appealed the Notice, the Planning Inspectorate found external space to be ‘adequate’. And, the Council did not give lack of external space as a reason for refusing Application One.
50. The Council’s report on Application Two shows it acted correctly in identifying external space as a relevant consideration in deciding Application Two. Having done so, it was for the Council to decide what weight to give the issue. And, I have no grounds to question the Council’s resulting view that external space issues did not justify a refusal of planning permission (see paragraph 4).
51. Another of Mr X’s concerns was how the Council dealt with the impact of the Development on Ms X’s home. The Council’s report on Application Two identified and assessed the impact of the Development on existing properties. The Council found the Development caused no significant issues to justify refusing planning permission. This is in line with the Council’s previous planning decisions. This is because the impact on neighbouring properties was not a reason for either refusing the retrospective application and Application One or for issuing the Notice.
52. Mr X was also concerned about existing built development on the site that did not have planning permission. The Council’s report on the retrospective planning application, shows it did not know when that existing development had been built. If built before the unauthorised change of planning use, it would have been permitted development (see paragraph 18). As I understand it, Mr X says the built development took place after the unauthorised change of use.
53. I find no useful purpose in further investigating when the building work took place. This is because the Council did not find the built development unacceptable in refusing the retrospective application or seek its removal under the Notice. The built development has now been in place for at least eight years. As the time limit for formal planning enforcement action against unauthorised building work is four years, the built development, if unauthorised, would be immune from enforcement action.

Post decision matters

54. Since the Council granted planning permission for the Development, Mr X has reported breaches of planning control on the site. I recognise Mr X’s dissatisfaction with the Council’s online service for reporting breaches. However, Mr X made his concerns known to the Council by email. And, the evidence shows the Council responded correctly by investigating Mr X’s concerns. Overall, the evidence shows the Council’s enforcement response proportionate, reasonable and timely. Having investigated, it was for the Council to decide whether formal enforcement action was ‘expedient’ for the ‘slight’ breach it found. I find no grounds to question its resulting decision not to take enforcement action.
55. Mr X also faced delay in taking his complaints through the Council’s complaints procedure. The Council’s delays were avoidable and significant, and I find fault here. The Council’s delays will have been frustrating for Mr X. The Council apologised to Mr X for its delays and, during its complaints process, provided substantive responses to Mr X’s key points. The Council also correctly signposted Mr X to the Ombudsman when he completed its complaints procedure. I find the Council’s apologies have already suitably and adequately addressed any injustice to Mr X arising from delay in its complaints procedure.

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Final decision

56. I completed my investigation finding the Council’s failure to make a written record of its decision not to publicise plan changes (see paragraph 43) did not affect its decision to grant the Development planning permission.

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Parts of the complaint that I did not investigate

57. The Council issued the Notice for the site several years ago. When Mr X complained to the Ombudsman (before he completed the Council’s complaints procedure), the time for compliance with the Notice was long past. The evidence shows Mr X knew the Council had issued the Notice and he was aware of its compliance date. A complaint about the Council’s delay in securing compliance with the Notice is therefore a late complaint (see paragraph 6).
58. However, when Mr X first complained, the Council’s enforcement action was continuing. So, I could investigate what the Council was doing to secure compliance with the Notice in the preceding 12 months. But, the Council had already started court action for non-compliance with the Notice. And, when Mr X returned to the Ombudsman, the courts had decided the Council’s case.
59. Overall, I find no reason why Mr X could not, for Ms X, have complained to the Ombudsman much sooner than he did about the Council’s enforcement investigation. And, as the Council has now, successfully, taken court action for non-compliance with the Notice, I also see no useful purpose in investigating the Council’s handling of its enforcement investigation. And, I find nothing meaningful could be achieved for Ms X. This is because the site now has planning permission for the use that was the breach of planning control under the Notice. I have not therefore investigated that part of Mr X’s complaint about the Council’s enforcement investigation.

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Investigator's decision on behalf of the Ombudsman