Summary: Mr X complained about the Council’s poorly drafted planning conditions, which affected his property. We found the Council was at fault as its planning conditions should have been clearer. The Council’s offer to refund half Mr X’s planning application fee reasonably and suitably addressed his stress, time and trouble in dealing with the conditions.

The complaint

1. Mr X said the Council, without consulting him, placed planning conditions on his property which restricted its use. Mr X said the conditions were poorly worded and one conflicted with advice from the local highway authority. Mr X said, as the Council had no procedure to correct errors in conditions, he had to apply to, and pay, the Council to have the conditions formally changed. Mr X said he spent much time and money dealing with the Council and the poorly worded conditions. Mr X wanted the Council to refund his application fees and compensate him for his time and stress he was caused.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
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 have:

• considered Mr X’s written complaint;
• talked to Mr X about the complaint;
• considered planning information available on the Council’s website about the development; and
• shared a draft of this statement with Mr X and the Council and considered the responses received.

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What I found

Background: Control of development

7. 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 these matters. However, most development needs express planning permission from the local council acting as local planning authority (LPA).
8. Most people own the land they apply to develop. However, people do not need to own land before making a planning application. If a planning applicant does not own all or any of the land they wish to develop, they must tell the landowner(s) about the planning application. And, when sending the application to the LPA, the applicant must confirm they have told the owner(s) about the application. The LPA will accept the applicant’s confirmation and will not, for example, routinely search the Land Registry for information about land ownership.
9. LPAs must publicise planning applications so people may comment on development proposals. Planning applicants sometimes change their proposals to address peoples’ comments and concerns. LPAs may, but not have to, publicise such changes and so give people another opportunity to comment.
10. LPAs may also consult other public bodies, for example, the County Council, as local highway and or fire authority, and or the Environment Agency. Such public bodies may suggest planning conditions they consider the LPA should place on any planning permission. LPAs decide whether to use any condition suggested by a third-party and how to word them on any planning permission.
11. If LPAs decide to approve development, they do usually attach planning conditions to the planning permission. The law allows LPAs to place “such conditions are they think fit” on planning permissions. The Government’s National Planning Policy Framework (NPPF) says councils should keep conditions to a minimum and use them only where they are:

• necessary;
• relevant to planning;
• relevant to the development;
• enforceable;
• precise; and
• reasonable in all other respects.

Together these are known as ‘the six tests’.

12. LPAs must give reason(s) for applying each condition. Planning applicants have a legal right to appeal to the Secretary of State against the conditional grant of planning permission. People may also apply to change or remove conditions placed on a planning permission. And, if LPAs refuse such an application, the planning applicant also has a legal right to appeal that refusal to the Secretary of State.
13. Planning permissions are not normally ‘personal’. That is, they are not limited to the person or company that applies for planning permission. Rather, a planning permission attaches to the land shown (usually edged red) as the development site on the application plans. So, on selling land, the new owner has the benefit of planning permissions granted for that land. And anyone owning or having a legal interest in land must comply with planning permissions for that land otherwise they may face enforcement action.

Background: Planning enforcement

14. If development takes place without the necessary planning permission or that does not comply with the relevant permission and its conditions, there will be a breach of planning control. Councils should investigate reported breaches and may, but do not have to, take enforcement action against any breach. The Government’s National Planning Policy Framework says councils should act proportionately in responding to suspected breaches.
15. If councils wish to respond to a breach, they usually have choices in the action they might take. Councils may ask for a ‘retrospective’ (late) planning application for the unauthorised development. Such applications allow councils to publicise and assess the unauthorised development and decide if it should receive planning permission. If a Council grants planning permission on a late application, this authorises the development.

Background: What happened

16. Mr X sold some land to a third-party (‘the Developer’). The Developer wanted to develop the land for housing. Mr X owned properties which shared a boundary with the proposed development site. The Developer agreed to carry out works on one of Mr X’s properties (‘Mr X’s Property’) if the Council granted planning permission. The works aimed to both facilitate the development and reduce its impact on Mr X’s property.
17. The Developer applied to the Council, as the LPA, for planning permission. The Developer confirmed it owned the development site shown edged red on application plans.
18. The Council publicised the application. The publicity included sending letters to nearby properties, including both those owned by Mr X. The Council also asked West Sussex County Council for its comments on the development as Local Highway Authority (‘the LHA’). The LHA asked for more information about the changes to Mr X’s Property if the development took place.
19. The Developer changed the development proposals in response to peoples’ representations and to provide more information for the LHA. The Developer’s new plans showed the proposed changes to Mr X’s Property if the Council granted planning permission. The Council publicised the changed plans, including sending a letter to both Mr X’s properties and asking the LHA for its further comments.
20. The LHA’s response included its further comments about proposed changes to Mr X’s Property. The LHA said it had no objection to the changes, but it would be good to include the works on Mr X’s Property as part of the proposed development. The LHA said this would need a change to the application plans to include part of Mr X’s Property within the development site. Once included within the site, the LHA said planning conditions could secure the works on Mr X’s Property. If this did not happen, the LHA said the Council would need to further consider the impact of the development on parking and possibly come back to it for more advice.
21. The LHA also advised the Council to include highway and parking related conditions on any planning permission for the development. The LHA’s suggested conditions included one to prevent occupation of new houses on the development site until completion of works on Mr X’s Property. Another suggested condition sought to restrict use of new garages on the site to parking only.
22. The Developer changed the application plans to include part of Mr X’s Property within the development site. The Council publicised the changed plans sending further letters to properties near the development site, including both Mr X’s properties.
23. A Council planning officer considered the application and prepared a report assessing the development proposals against planning policies and other material planning considerations (‘the Report’). The Report recommended the grant of conditional planning permission for the development. The report summarised the proposed conditions, which included conditions to:

• restrict use of garages to parking vehicles and cycles only; and
• send details of works on Mr X’s Property to the Council and then build the works in line with the approved details.

24. Councillors, at the Council’s planning committee, considered the Report and decided to grant the development conditional planning permission.
25. The Council’s planning officers then prepared the formal planning decision notice including drafting, in full, several planning conditions (‘the Permission’). One condition prevented occupation of the new houses before construction of an access, turning and parking places. The Council had to approve the details of the access, turning and parking places. The condition also referred to works on Mr X’s Property for a new access and replacement garage. The condition ended saying the areas provided should not be used for any purpose other than access, turning and parking incidental to use of the new houses. The Council’s reason for the condition was “in the interests of amenity and highway safety”. In this statement, I refer to this condition as “Condition 1”.
26. Another condition said use of garages approved as part of the development should be only as private domestic garages for vehicle parking incidental to use of the properties. The Council’s reason for the condition was “to ensure adequate off-street parking in the interests of amenity and highway safety”. In this statement, I refer to this condition as “Condition 2”.
27. Later, the Council approved the Developer’s detailed proposals for access, turning, garages, and parking, including a garage on Mr X’s Property.
28. The development started. The replacement garage built on Mr X’s Property differed from that approved by the Council (see paragraph 27). Mr X sought advice from the Council and then made two planning applications. (After further advice from the Council, Mr X withdrew his first application before the Council decided it.) The Council granted planning permission (‘the Second Permission’) on Mr X’s second application, which changed the Permission. The changes made by the Second Permission included:

• removing the reference to Mr X’s Property from Condition 1;
• changing Condition 2 so use restrictions only applied to garages built for new houses on the development site;
• applying a condition approving the new garage as built on Mr X’s Property; and
• applying a condition to the new garage on Mr X’s Property allowing its use only for parking vehicles and purposes incidental to the property’s use as a home.

29. Mr X and the Council then started writing to each other about the development. The correspondence continued for many months. Mr X said he did not receive the Council’s final complaint response, which further lengthened the time before Mr X brought his complaint to the Ombudsman. Paragraphs 30 and 31 summarise Mr X’s and the Council’s positions on the main points from their correspondence.

Summary of Mr X’s position

30. Mr X said, through no fault of his own, he had spent much time dealing with the Council’s planning decision and poorly worded conditions. Mr X said:

• he had understood the works on his property were permitted development;
• he was not told his property was part of the development application site;
• he was not aware the Council had approved details for his new garage;
• he was not aware conditions on the Permission affected his property, including restricting use of his garage to parking;
• the Council had made a mistake and changed the LHA’s proposed wording for Conditions 1 and 2 to wrongly apply them to his garage;
• Conditions 1 and 2 were poorly drafted and neither met all the ‘six tests’;
• the Council gave him wrong advice about making a planning application, which led to him making two applications and paying two sets of planning fees; and
• the Council acted unfairly in making him apply to change the Permission and then refusing to refund his planning fees.

Summary of the Council’s position

31. The Council accepted it could have taken greater care in drafting its planning conditions. It therefore accepted “some fault” in wording Conditions 1 and 2 and yet said:

• the developer should have told Mr X about including his property within the development application site;
• Mr X was aware of the application and could have questioned both including his property within the site and the proposed planning conditions;
• it had not made a mistake as Conditions 1 and 2 were necessary to deal with off-street parking which was a local planning issue (as shown by objections to Mr X’s planning application);
• the developer had not questioned the planning conditions although it had a right of appeal against any planning condition;
• Mr X’s new garage did not comply with the approved plans. Significant local opposition meant a planning application was necessary so it could assess the changes and decide about use of the garage; and
• Mr X had only paid one application fee and, while a refund was not justified, as a goodwill gesture it would return 50% of the fee.

(In paragraphs 30 and 31, references to ‘his property’ are to the property previously described as ‘Mr X’s Property’.)

Consideration

Introduction

32. The events that Mr X complained about took place more than 12 months before he came to the Ombudsman. Mr X’s complaint was therefore a ‘late complaint’ (see paragraph 4). And yet, Mr X said he did not receive the Council’s final complaint response, which effectively ended their correspondence. It was several months before Mr X chased the Council for its response. And, having then secured a copy of the Council’s final reply, which signposted him to the Ombudsman, Mr X came to us. On balance, given what happened and in the circumstances here, we decided to exercise our discretion and consider Mr X’s late complaint.
33. In dealing with that complaint, my role was to consider whether the Council acted with fault and, if so, if such fault caused Mr X injustice. To do this, I carefully considered all the information provided by Mr X and the Council. And yet, I did not find it necessary to, and this statement does not, address every point raised in Mr X’s and the Council’s detailed correspondence. I focused my investigation on the issues surrounding Conditions 1 and 2.

Condition 1 and Condition 2

34. Mr X’s Property was part of the planning application site and so covered by the Permission. The Council was therefore able to place conditions on Mr X’s Property. I therefore found no fault in the Council applying conditions to the Permission that affected Mr X’s Property.
35. The Council must take account of planning representations it receives in response to publicising and consulting on a planning application. Here, the Report showed the Council did take account of such representations, including those made by the LHA. And yet, the Council did not have to agree with any such representations, including those from the LHA. The Council also did not have to accept the LHA’s suggested conditions. It was for the Council, as LPA, to decide whether to place any highway and parking conditions on the Permission and, if so, how to word them. I therefore did not find the Council at fault in not applying conditions on the Permission as drafted by the LHA.
36. The Permission included highway and parking conditions. The Report, in summarising representations, showed people and the LHA had concerns about parking issues and the impact the proposed development might have on them. I therefore did not find the Council at fault in deciding to apply highway and parking conditions to the Permission, including Mr X’s Property.
37. The Council was responsible for drafting the Permission conditions and ensuring they met ‘the six tests’ (see paragraph 11). Mr X said Conditions 1 and 2 did not meet all the six tests. The Council, while not expressly agreeing the conditions did not meet the six tests, accepted Conditions 1 and 2 could have been clearer. This might suggest those conditions were not ‘precise’ and or ‘reasonable in all other respects’ as needed by the six tests. The lack of ‘precision’ might also affect the ‘enforceability’ of those conditions. However, given the Council’s admission on ‘clarity’ and acceptance of ‘some fault’ (see paragraph 31), I agreed and found fault here. I therefore considered whether such fault caused Mr X injustice.
38. Once it issued the Permission, the Council could not, even if it wanted to, simply remove or change Conditions 1 and 2. To remove or change any of the conditions needed either a formal appeal against the Permission or an application to vary/remove any of it conditions (see paragraph 12). And, here, Mr X said the Council told him about applying to remove and or change conditions on the Permission.
39. The Council’s correspondence with Mr X showed Conditions 1 and 2 could remain as drafted and attached to Mr X’s Property. And the Council could not force Mr X to make an application to remove or change the Permission conditions. That was a decision for Mr X to make. And yet, if Conditions 1 and 2 remained on the Permission any failure to comply with them would be a breach of planning control. The Council might then take enforcement action against any such breach. To avoid living with such uncertainty, Mr X might consider he had no choice but to make an application. And yet, the evidence showed there was a breach of Condition 1 as the garage built on Mr X’s Property differed from that approved by the Council (see paragraphs 14, 15, 27 and 28). Any lack of clarity in wording Conditions 1 and 2 did not affect such a breach.
40. The Council said significant opposition to the development and parking concerns meant an application was necessary to address non-compliance with the Permission. The Council was, as a matter of planning judgement, able to take such a view. And, given objections to Mr X’s application, I found the Council’s position was sustainable, although it later approved the changes and granted the Second Permission. Therefore, if there had been no uncertainty about the wording of Conditions 1 and 2, the Council would have asked for an application to address the breach of Condition 1. And Mr X’s application led not only to his gaining express approval for his garage ‘as built’ but resolved any unclear wording in Conditions 1 and 2. The Second Permission also included a condition restricting Mr X’s garage to parking and ‘incidental purposes’ to safeguard residential amenities (see paragraph 28).
41. Mr X’s frustration and dissatisfaction with what happened was understandable. The Developer was responsible for the application that led to the Permission, which included Mr X’s Property. And yet, I did not find the Council at fault for applying conditions that affected Mr X’s Property. And Mr X’s ‘as built’ garage did not comply with the details approved under Condition 1. So, on balance, I did not find the injustice Mr X experienced arose solely from any unclear wording of the Permission conditions. The Council’s offer to refund half the fee paid by Mr X was proportionate, appropriate and reasonable in the circumstances of this case.

Agreed action

42. I agreed with the Council there was ‘some fault’ in its drafting of conditions attached to the Permission. And Conditions 1 and 2, which were of concern to Mr X, did affect his property. The wording of Conditions 1 and 2 caused Mr X uncertainty, which the Second Permission resolved. The Second Permission also expressly approved the ‘as built’ garage on Mr X’s Property. I therefore supported the Council’s offer to settle Mr X’s complaint by refunding 50% of his planning application fee. The Council agreed it would, within 30 working days of this statement, refund £117 to Mr X, which was 50% of his application fee. The Council also agreed to send the Ombudsman evidence of that refund within 10 working days of paying Mr X.

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Final decision

43. I completed my investigation, finding fault causing injustice, when the Council agreed the recommendation at paragraph 42 of this statement.

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Investigator's decision on behalf of the Ombudsman