Summary: There was no fault by the Council in a complaint alleging it did not properly inspect a neighbouring property before it decided the property owner had implemented an existing planning permission.

The complaint

1. The complainant, whom I shall refer to as Mr X, says the Council did not properly inspect a neighbouring property before it decided the property owner had implemented an existing planning permission before it was due to expire.
2. Mr X says his neighbour simply dug a hole on the site and the hole was then backfilled. Mr X says the act did not amount to footings and nothing more happened on the site since then. Mr X says his neighbour provided a video to the Council showing digging work but the video was disingenuous as the JCB digger was only on site to put up a garden fence.
3. Mr X says he was faced with deliberate obfuscation and time wasting by the Council’s officers.
4. Mr X says the neighbouring property would reduce the value of his own property if the development is completed. Mr X wants the Council to reinspect the property and compensate him for loss of value and the stress he experienced.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I considered the complaint and background information provided by Mr X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties in reply.

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What I found

Legislation and guidance

8. Planning permissions are granted subject to a condition that they must be implemented within a set period of time, usually three years from the date on which planning permission is granted.
9. Failure to implement a planning permission within the required time limit leads to the planning permission lapsing. In that case a further planning application would need to be made to the local planning authority.
10. In order to lawfully ‘commence’ development it is necessary to satisfy the legal requirements in section 56(4) of the Town and Country Planning Act 1990. This says that “development is taken to be begun on the earliest date on which a material operation is carried out”.  A material operation can include any works of construction, demolition, digging foundations, laying out or constructing a road and a material change in the use of the land.
11. In practice, very minor works are usually sufficient to commence development. This could be as simple as putting in footings or even just pegging out a roadway.

Background

12. Mr X contacted the Council at the end of 2019 to report a breach of planning control. He said his neighbour had commenced building despite having no valid planning permission.
13. Mr X also complained that there had been a number of planning applications at the site which had been refused planning permission but one application was approved without neighbours being notified. Mr X said that planning permission had been passed in disingenuous circumstances and the Council was to blame.
14. A planning team manager sent a reply informing Mr X of the valid planning permissions granted for development in 2016 and 2018.
15. Mr X sent a reply stating the Council’s procedure, systems and communication had failed the people. He said the 2016 application would have been rejected if it was given the same consideration and scrutiny as the 2019 applications. He said the Council only acted when it was prompted by local objections. He said the matter should be addressed at the highest level of planning authority as well as the Council’s planning subcommittee.
16. The planning team manager sent a more comprehensive reply to Mr X explaining the planning history of the site. The officer set out all the planning applications which had been approved as well as those refused permission. The officer explained Mr X’s neighbour had received planning permission for a development in 2013. The application was resubmitted in 2016 and approved. The officer explained Mr X’s neighbour could build with that permission if it was started before January 2020.
17. The officer explained that Mr X’s neighbour had submitted applications for other developments in 2019 which were refused planning permission. But these refusals did not mean his neighbour was prevented from implementing the 2016 permission. The officer noted Mr X’s email stated his neighbour had started building work. The officer said that was legal.
18. Mr X contacted the Council again in January 2020. This time by telephone. Mr X wanted to know what the Council would do in order to know when a planning permission had elapsed. He asked whether the Council would visit the site.
19. The same team manager wrote to Mr X. He said if the permission was not implemented within the period of consent then the Council would not know unless the applicant tells it. The officer said there is no legal requirement for the applicant to tell the Council. The officer said the Council would not visit the site unless it received a complaint.
20. Mr X expressed surprise the Council did not carry out a planning inspection. He said his complaint was now that the Council should visit his neighbour’s home. Mr X said the Council should issue a letter to his neighbour saying the planning permission had lapsed.
21. The team manager sent a reply explaining what the Council could do to investigate whether a developer had commenced development within the period of consent. The officer repeated his previous explanation on commencement of development at the neighbouring property.
22. Mr X insisted on an inspection as part of his complaint.
23. The Council’s complaints officer initially decided there was nothing to be added to the team manager’s responses but Mr X continued to insist on an inspection.
24. The Council decided to open a planning enforcement investigation. This involved a site visit. A planning enforcement officer visited the site in February 2020. The officer decided there was no breach of planning control.
25. Because of the enforcement investigation, Mr X’s neighbour submitted an application for a Lawful Development Certificate (LDC). An LDC provides certainty to an applicant that a development is lawful for planning purposes or that it does not require planning permission.
26. The applicant for an LDC must provide sufficient information for a local planning authority to decide the application.
27. Mr X objected to the application on the basis that the applicant had not commenced building works within the required period.
28. The case officer set out the basis upon which the Council would judge the evidence it had received. The officer explained judicial precedent held that the relevant test of evidence was on the balance of probabilities. The officer noted the applicant’s evidence did not have to be corroborated by independent evidence for it to be accepted.
29. The case officer noted the applicant’s evidence which comprised letters and emails from the Council’s own building control department and a video showing concrete being poured as part of footings.
30. The officer noted no supporting evidence had been provided by Mr X and other objectors.
31. The Council granted the LDC.
32. Afterwards, Mr X entered into a lengthy correspondence with officers. Mr X asked the Council to provide a photograph and written evidence that the development commenced in December 2019. He maintained the development had not been built. He said the video was a deception. He provided a photograph of the site which he said proved there were no footings.
33. The Council confirmed it could not provide him with the information he wanted on the LDC application as they are exempt from release to the public under the Freedom of Information Act 2000.
34. The Council confirmed its view that building works commenced within the life of the 2016 planning permission and there was no breach of planning control.

Finding

35. I do not find fault by the Council in the matters raised by Mr X. As to whether the Council properly inspected the neighbouring development before it granted a LDC, the Council properly explained the basis upon which it reached a judgement on whether the development had started before expiry of the planning permission. This was by weighing up the evidence the applicant provided. It was not for the Council to go to the property to obtain evidence to disprove the evidence the applicant provided. The Council correctly judged the evidence on the balance of probabilities.
36. I do not find Mr X faced deliberate obfuscation and timewasting from the Council’s officers. I am satisfied officers responded to Mr X in a reasonable and timely manner.
37. Mr X can complain to the Information Commissioner if he considers the Council wrongly withheld information from him.

Final decision

38. I closed this complaint because I did not find fault by the Council in the matters raised by Mr X.

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Investigator's decision on behalf of the Ombudsman