Summary: Mr X complains the Council has not taken suitable enforcement action against a developer. He says a road junction is unsafe because the developer is in breach of a planning condition. There is no fault with how the Council handled this case and we have completed our investigation.

The complaint

1. Mr X complained the Council has not taken enforcement action against the developer of a housing development in his village. He said the developer has nearly finished the houses but has not completed the off-site pre-commencement condition. He said, by not enforcing this, the Council have made a dangerous road junction, worse.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)

Back to top

How I considered this complaint

5. I have considered Mr X’s complaint and supporting information. I have also considered the Council’s response to Mr X.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

The Law

7. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
8. A breach of planning control is defined in section171A 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.
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 at the magistrate’s court.
10. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework 2019 (NPPF) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’.
11. “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”.

What happened

Planning Permission

12. The Council granted planning permission in 2017 for 40 houses to built in the village where Mr X lives. The attached planning conditions included Condition 20 which stated that:

“Prior to the commencement of development, the off-site highway improvement works, shall be constructed in accordance with a scheme which has been submitted to and approved in writing by the Local Planning Authority”.

13. In May 2020, the Council approved the offsite highway works details submitted by the developer. It said the details complied with the submission requirements of the condition and the construction of the development shall comply with the approved details.

Mr X reported breach of condition

14. Mr X contacted the Council in May 2020 to report the developer was in breach of Condition 20 as the highway works were not complete. The evidence shows that Mr X repeatedly contacted the Council about the case and the Council responded and visited the site several times.

The Council’s response

15. The Council said that it was working with the developer to mitigate the impact of the works. It said that officers had frequently visited the site and responded to feedback from residents. It said the offsite works were completed as far as possible within the developer’s control. It explained that some outstanding matters related to works by third party statutory undertakers and have been delayed ensuring that works are carried out in the safest possible way.
16. The Council decided that formal enforcement was not an appropriate response. It said working with the developer was most likely to achieve the balance of ensuring the development happens and the needs of the local residents are met.

Mr X complained about the decision

17. Mr X complained about the Councils decision not to take enforcement action. The Council did not uphold Mr X’s complaint. It said the Council took the correct approach in line with NPPF. Mr X also made allegations about the conduct of the Council and the reasons behind its decision. The Council said officers acted appropriately and there was no evidence of misconduct.
18. The Council said it would continue to remain active on the case by:
• Visiting and inspecting the site;
• Liaising with the site manager; and
• Updating all parties.

Breach of Condition Notices

19. During the course of my investigation, the Council served two Breach of Condition Notices on the developer for:
• Non completion of offsite works in breach of Condition 20 of planning permission.
• Not complying with delivery times and working hours in breach of Condition 21, with respect to the Construction and Environmental Management plan submitted by the developer and agreed by the Council.
20. The notices required the developer to comply within 28 days of service. The date of service being 19 March 2021.
21. Mr X said the Council has offered the developer the opportunity to submit an application to vary the plans for the off-site works.

Analysis

22. This is a merits case. The Council made the decision not to take formal enforcement action initially. This was because it believed it would have more success in achieving the desired outcome by working with the developer. This was the Council’s decision to make. I cannot question the Council’s decision if it was reached correctly. There is no fault with the way it was reached.
23. After a period of time, when the off-site works were still not completed in line with Condition 20, the Council issued the developer with a Breach of Condition Notice. Mr X says the Council did not take action when the developer did not comply with the notice within the 28 day period. This is an ongoing matter that came to light during my investigation and I will not investigate this further.

Back to top

Final decision

24. I have completed my investigation. I have found no fault with the Council.

Back to top

Investigator's decision on behalf of the Ombudsman