Eastleigh Borough Council (19 005 621)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 22 Feb 2021

The Ombudsman's final decision:

Summary: There is evidence of fault in how the Council dealt with the complainants concerns about an unauthorised drainage system and wall, built on a development near to their homes. The Council has agreed to arrange for an enforcement officer to assess the site.

The complaint

  1. Mrs Z complains on behalf of five of herself and five of her neighbours. I shall refer to the other complainants’ as Mrs Y, Mr & Mrs X and Mr & Mrs W. Mrs Z complains about how the Council dealt with planning matters relating to a development close to the complainants’ homes. Mrs Z says the Council’s failings have resulted in flooding to their gardens. Mrs Z complains that the Council:
    • Failed to properly manage planning applications for the development.
    • Failed to take appropriate enforcement action against the developer.
    • Failed to properly communicate with Mrs Z and her neighbours about their concerns.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. As part of the investigation, I have:
    • considered the complaint and Mrs Z's comments; and
    • made enquiries of the Council and considered the comments and documents the Council provided; and
    • Considered relevant legislation.
    • Communicated with Mrs Z about her and her neighbours complaint.
  2. I have also sent a draft version of this decision to both parties and invited their comments.

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What I found

Planning legislation

  1. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA).
  2. Where necessary for approval of a permission a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application. The applicant must satisfy the condition and apply for it to be discharged by the LPA.
  3. It is up to the council to decide if the applicant has successfully discharged any planning condition; the council does not have to consult with members of the public when making its decision.
  4. If development takes place either without the necessary planning permission or if it does not comply with the relevant planning permission, there will be a breach of planning control.
  5. Councils should investigate alleged breaches, but they do not have to take enforcement action against every breach. The law says councils must be satisfied it is ‘expedient’ to take formal enforcement action having considered their planning policies and any other material planning considerations. The Government’s Planning Practice Guidance says councils must take the Government’s National Planning Policy Framework (NPPF) into account when considering enforcement action. Paragraph 58 of the NPPF says:

“Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local…”

  1. The Council’s Local Planning Enforcement Policy says when receiving a report of a breach of planning conditions it will carry out a site visit within 20 days.
  2. The Council’s Local Planning Enforcement Policy reflects the law and the NPPF and details the possible outcomes of an enforcement investigation. These outcomes include:
    • No breach of planning control.
    • There is a breach, but it is not expedient to pursue.
    • Negotiate a resolution with the site owner.
    • Invite a retrospective planning application.
    • Take formal enforcement action.
  3. A retrospective planning application is an application under section 73A of the Town and Country Planning Act 1990, as amended, for planning permission for development carried out before the date of the application.
  4. Section 73 of the Town and Country Planning Act (1990) allows planning applicants the option to submit applications seeking non-material or minor-material amendments (MMA) once planning permission has been granted.
  5. There is no statutory definition of a non-material or minor-material amendment. However, the government’s ‘Planning Practice Guidance: Flexible Options for Planning Permissions’ says a MMA “… is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved”.
  6. Councils must publicise applications in accordance with regulations and local policy to give an opportunity for anyone concerned to submit comments about the proposed development. Councils should take account of any comments in so far as they related to material planning considerations.
  7. An application can be amended after it has been submitted. Where an application has been amended it is up to the local planning authority to decide whether further publicity and consultation is necessary in the interests of fairness.
  8. As an application to make a non-material amendment is not an application for planning permission, the existing provisions relating to statutory consultation and publicity do not apply. Therefore, local planning authorities have discretion in whether and how they choose to inform other interested parties or seek their views.


  1. The complainants’ live on a residential street. In 2016, a developer submitted a planning application to demolish a property, and build several homes, with garages, parking access and boundary treatments, to the rear of the complainants’ properties.
  2. The proposal showed an entrance road to the site, running past a property which I shall refer to as Property A. Property A sits next to Mrs Y’s property, which I shall refer to as Property B.
  3. The Council initially refused planning permission for the development, but the developer successfully appealed to the planning inspectorate, which granted permission, subject to conditions.
  4. One of the conditions, which I shall refer to as Condition A, related to the construction phase of the development. It included details about how the flow of water would be managed during construction, stating work should be undertaken in accordance with a Construction Method Statement to be approved by the Council.
  5. Another condition, which I shall refer to as Condition B, related to retaining structures on the development over 300mm above finished ground levels. The condition said plans for these should be agreed in writing with the Council before they are implemented.
  6. A condition, which I shall refer to as Condition C, related to the long-term management of foul and surface water on the development. It said plans for this would need to be submitted to the Council before development commences.

What happened

Management of planning applications

Application 1 – Discharge of conditions

  1. In 2018, the developer submitted two applications. The first was an application to discharge several conditions including Conditions A, B & C.
  2. Mrs Z contacted the Council to report that work had started on the site before the pre-commencement conditions, including Condition A, had been discharged. The Council instructed the developer to cease works and to provide the required information for conditions to be discharged.
  3. The developer provided information in support of its application, and the Council made the decision to allow work to continue.
  4. In support of its application to discharge Condition A, the developer submitted a drawing showing a temporary wheel wash area on the access road, close to Property A.
  5. Plans showed that water from the area would drain to a sump filtered with straw. This was a temporary measure designed to control the flow of water during the construction phase of the development. The Council subsequently discharged Condition A.
  6. In support of Condition B, the developer submitted plans showing retaining structures, over 300mm across the site. None of these drawings showed any retaining structures to the rear of Property A. The Council subsequently discharged Condition B.
  7. The developer did submit a site plan which showed a wall around the rear of the garden of Property A. This was described as “a retaining structure, with close board fencing”. The Council did not refer to this drawing when it discharged Condition B, although was referred to when discharging a condition relating to ecological mitigation measures.
  8. The developer subsequently submitted two drawings showing how it would manage foul and surface water on the site, in support of its application to discharge Condition C.
  9. The drawings showed that water would be collected from the roofs of the properties into a centrally located trough, pumped up to the main sewer.
  10. The drawings also showed a surface water collection trough and culvert containing two pipes in the same location as the temporary wheel wash area. The plans show the pipes running from one side of the entrance road to the edge of the garden of Property A.

Application 2 – Section 73

  1. The second application submitted by the developer in 2018, was a Section 73 application for a minor material amendment. The developer proposed to move five of the properties by distances of between 1 to 2.5 meters, resulting in a change to the site layout and landscaping.
  2. Several documents were uploaded to the planning portal in support of the application, with further documents added the next month. The Council subsequently validated the application and residents, including the complainants’ in this case, were consulted.
  3. After comments from the Council, the developer submitted some amendments to the application in the form of additional tree planting and landscaping. Documents in support of these changes were uploaded to the portal.
  4. A further plan was uploaded to the portal, detailing the proposed landscaping on the site. This plan showed a gate on the entrance. An amended plan was subsequently uploaded showing no gate.
  5. The original consultation period ended, but people continued to make comments and objections after the consultation period end date.
  6. The officers report was completed at the end of 2018 and shows that he summarised the objections from complainants’ and addressed these points in his considerations.
  7. On the same day, the case officer copied documents from Application 1 and the original full planning application. These documents included the documents provided in support of Conditions A and C for Application 1.
  8. The application was approved, subject to several conditions. This included a condition, Condition D, which said no dwelling will be occupied until the works to managed surface water had been completed, in accordance with two drawings (the same two drawings approved under Application 1).

Application 3 – Section 73

  1. In 2019, the developer submitted a further Section 73 minor material amendment application to amend three conditions relating to the boundary treatments on the site.
  2. The developer proposed replacing a concrete wall with a fence and hedging. The developer submitted their application along with drawings showing the new proposals.
  3. The Case Officer completed his report, in which he approved the plans. A decision notice was uploaded to the portal. However, this was subsequently removed, and a new decision notice was uploaded two days later.
  4. The notice issued first referred to the old site layout plan, showing a wall. The second notice referred to documents being revised and referred to an updated site layout plan, showing the fence and hedging.

Breaches of conditions

  1. In January 2019, the complainants’ contacted the Council about issues on the site, including the issue of flooding.
  2. Internal emails show that planning enforcement officers discussed the case and agreed to carry out a site visit.
  3. The enforcement officer witnessed that the developer was not using the pump which moved water from roofs, into a tank and then to the main sewer. Water was therefore overflowing from the tank into complainants’ gardens.
  4. The enforcement officer contacted the developer who agreed that the pump would be used. The enforcement officer subsequently informed the complaints of the outcome of their visit.
  5. The complainants’ continued to communicate with the Council about breaches of planning conditions on the site. On 25 January 2019, Mrs Z wrote a detailed letter of complaint in which she said that two structures had been built without any planning permission.
  6. She said a retaining gabion wall had been built to the rear of Property A without planning approval and that a culvert had been built to discharge water into the garden of Property A without planning permission.
  7. Mrs Z said water was flowing through the garden of Property A through to Property B and then into the other complainants’ gardens, causing flooding.
  8. The Council has provided details of visits it made to the site in 2020, as works on the site were close to completion. It has also provided photographs its officers took on the site.
  9. Th Council told the Ombudsman the culvert and pipes leading to the garden or Property A did have planning permission, as they were included in approved drawings in Applications 1 and 2.
  10. The Council say the planning enforcement team have been engaged but have found no that planning breach was identified with the structure.
  11. The Council accepted that the approved construction phase plans included a sump under the road by Property A, but that it had no cause to believe the sump was retained.

Home visit

  1. In response to their complaints an enforcement officer was scheduled to visit Mrs Y at her home to discuss the matter, however the officer did not attend.
  2. Mrs Z says that the Officer was advised not to attend by the Head of Legal Services. The Council say its Head of Legal Services did not make this instruction, and because the Officer has since left its employment it does not know why he did not attend.


Discharge and variation of conditions

Application 2

  1. The complainants’ complain that documents were added to the planning portal for this application after consultation had ended, depriving them of their right to consultation.
  2. I do not find that the Council was at fault for how it managed this application and how it consulted on it. Whilst it is true that additional documents were added to the portal, the Council was not at fault for doing this. This is because applications can be amended after they have been submitted.
  3. Furthermore, Application 2 was a non-material amendment and therefore not an application for planning permission. Therefore, the Council had no statutory duty to consult on this. The Council therefore had the discretion on whether and how they chose to seek the views of others.

Application 3

  1. The complaints say the decision notice issued was unlawful, because the Council failed to follow legislation detailed in the Town and Country Planning Act 1990, when it revoked the first notice issued. The complainants’ also say that the Council failed to properly consult on the application, meaning they were in further breach of the Act.
  2. The purpose of the application was to gain approval for a boundary treatment to be changed from a wall to a fence and hedging. The notice issued on 13 May referred to the incorrect site layout plan, showing the old plans including the wall. This notice was subsequently changed to refer to the new site plan showing the approved amendments.
  3. It seems clear that the Council’s intention was to revise the notice to include reference to the correct drawings.
  4. I therefore do not find that the Council were at fault in how they managed this application. Furthermore, I do not consider that the reissuing of the notice caused any of the complainants’ an injustice.
  5. The complainant’s cite case law in support of their claim that the Council’s decision was unlawful. However, any further dispute over the legality of the decision made by the Council is a matter for the courts.
  6. The complainants’ also say the Council did not properly consult on this application.
  7. However, Application 3 was a non-material amendment, and, like Application 2, the Council therefore had the discretion on whether and how they chose to seek the views of others.
  8. For the reasons detailed above, I do not consider there is any evidence of fault in how the Council dealt with Application 3.

Breaches of conditions

  1. I am satisfied that the Council took appropriate action when the complainants’ reported a breach of conditions in 2019.
  2. An enforcement officer quickly carried out a site visit and witnessed the developer breach a condition, because they were not using the water pump and therefore the tank was overflowing and flooding neighbouring gardens.
  3. The officer then contacted the developer who agreed to start using the pump. The Council subsequently communicated the outcome to the complainants’. I am therefore satisfied that there is no fault in how the Council dealt with this matter.
  4. The complainants’ complain that the culvert crossing under the access road and discharging into the garden of Property A has been built without any planning approval and that a temporary sump pit is now a permanent feature.
  5. The complainants’ also say that a retaining gabion wall has been built to the rear of the garden of Property A without written approval from the Council because it is over 300mm and therefore in breach of Condition B. They say that this structure is also over 1.8 meters high and would therefore require planning permission, but it does not.
  6. There have been considerable communications between the Council and the complainants’ in this case, regarding a range of issues.
  7. However, it does seem that the complainants have raised their concerns of the above breaches most recently in January 2020.
  8. When Councils receive a report of a breach of conditions, we expect them to carry out a proper investigation. Its policy states that it will carry out a site visit no later than 20 days. During such visits we would expect officers to take notes and photographs.
  9. Whilst the Council has provided details of visits to the site, I have not seen any evidence that it carried out a visit specifically in relation to the reported breaches of planning control above. This is fault.
  10. The Ombudsman cannot reach a judgement on whether planning control has been breached or not. This is a matter for the Council.
  11. Nor can the Ombudsman reach a decision about what injustice this fault has caused each complainant at this stage. This cannot be judged until after the Council have carried out an investigation and decided what action to take if a breach is identified.
  12. For this reason, I consider it appropriate that the Council carry out a further visit to the site to investigate the two reported breaches.
  13. The Council should then consider if a breach has taken place and what enforcement action, if any, it will take.
  14. If the Council concludes that a breach has taken place, it should consider what injustice, if any, it has caused each complainant by not investigating their concerns sooner.
  15. Records should be kept, showing what was found on the site visit, and how the Council reached each of its decisions.
  16. The Council should then write to each complainant, detailing its conclusions. If they remain dissatisfied with the Council’s response, the complainants’ can approach the Ombudsman again and ask him to investigate this matter.


  1. The Council accept that one of its officers had arranged a meeting with Mrs Y, to discuss the issue of water flowing from the development.
  2. Whilst I cannot say for certain why the officer did not attend, neither party dispute that he did not. I therefore consider it appropriate that the Council write to Mrs Y and apologise for this.

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Agreed action

  1. Within 1 month of the date of my final decision, the Council has agreed that it will:
    • Apologise to Mrs Y, for whom it cancelled an arranged meeting without any prior notice.
    • Remind enforcement officers of the importance of investigating reported breaches of planning conditions properly.
  2. Within 2 months of the date of my final decision, the Council has agreed that it will:
    • Arrange for an enforcement officer to carry out a site visit. The Council should then assess if a breach of planning control, keeping a written note of its decision process.
    • If the Council considers a breach has taken place it should consider what, if any enforcement action it will take.
    • It a breach has taken place the Council should consider what impact this has had on each of the complainants’. It should then consider decide how it will remedy each injustice.
    • The Council should then write to each complainant detailing its conclusions.
    • If the complainants’ are dissatisfied with the Council’s response, it may complain again to the Ombudsman and ask it to investigate.

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Final decision

  1. I have concluded my investigation with a finding of fault leading to an injustice.

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Investigator's decision on behalf of the Ombudsman

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