Summary: Mr X complained about the Council’s decision not to enforce a planning condition. We found no fault in the way the Council made its decision not to take enforcement action.

The complaint

1. Mr X complained the Council decided not to enforce a planning condition that controlled landscaping on the housing estate where he lives.
2. Mr X said the condition is in breach in relation to landscaping features of a park, including a long path, fencing and tree planting.
3. Mr X said that because of the Council’s decision, residents of his estate will face greater maintenance costs as responsibility for the park has been passed to the residents’ management company.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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)
6. We can decide whether to start or discontinue an investigation into a complaint or any part of a complaint within our jurisdiction. We may not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

7. I read the complaint. I read the Council’s response to the complaint and considered documents from its planning files, including its planning enforcement summary report.
8. I gave Mr X and the Council an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

9. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
11. Planning considerations do not include things like:
• the quality of building work in carrying out approved development;
• the impact of development on property value; and
• private rights and interests in land.
12. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
13. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
14. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate planning agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a type of contract that is legally binding on the parties that sign it, and the successors in title to the land it applies to.
15. Details of how council decisions on planning matters are usually found in officer reports. The purpose of the officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
16. However, the courts have made it clear that officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
17. Case officer reports for planning applications are on the public planning file, which is usually published on the Council’s website. Planning enforcement reports are confidential and so are not usually shared with the public.

What happened

18. The Council approved a planning application for the housing estate Mr X lives on. The application included a park that was controlled by one of the planning conditions imposed by the Council. The planning condition required the developer to submit details for landscaping features, such as a path, fencing and tree planting.
19. Another condition required the developer to enter into a section 106 agreement, which among other things, required the ongoing maintenance of the park by a management company.
20. Mr X said that the path is in poor condition, with sludge on its surface. He would like the Council to explain why it allowed the change of materials and to insist the developer rebuilds the path using tarmac, as was shown on the original landscape plan.
21. To satisfy the landscape planning condition, the developer submitted a plan that showed the locations and materials that would be used. The Council accepted the condition details that were proposed and confirmed this by issuing a ‘discharge of condition’ letter. The Council’s condition required the developer to complete the park in accordance with the landscaping plan.
22. After development of the park began, it became clear that the landscaping plan was not followed in a number of ways, including:
• a path that was shown to be tarmac on the plan was built with gravel;
• fences that had been removed; and
• tree and hedge planting.
23. The Council provided its documents from its enforcement file and a screenshot from its planning document management system. The screenshot shows the allegation, key dates outcome of its enforcement decision. The documents show details of the issues raised by complainants and the planning enforcement officer assessment of those issues, along with their conclusions.
24. In one of the documents, a planning enforcement officer recalled a conversation with a planning officer that during the application stage there had been a verbal agreement that the path could be constructed using bound gravel instead of tarmac.
25. In relation to the allegations, the Council’s judgement was the landscaping condition was in breach, but that the differences between what was approved under the landscaping plan and what was constructed or planted by the developer, did not cause significant harm. Because of this, the Council decided it was ‘not expedient’ to take formal enforcement action.
26. Mr X and other residents were unhappy with the Council’s decision to take no action. They were particularly concerned about the gravel path, which had been poorly constructed and needed repair. The management company tasked with maintenance had been transferred to become a residents’ management company (RMC), they would be liable for repair costs. Mr X argued that if the Council had enforced the condition to insist upon a tarmac path, maintenance would not be necessary already and ongoing costs would be much lower.
27. The residents’ complaints were considered by members of the Council’s planning committee. Members agreed for the issues to be reviewed by an independent investigator, who would then report back with findings and recommendations. The independent review would include an assessment of a number of issues, including:
• the implementation of the landscape plans;
• the change from tarmac to gravel path;
• whether the new path surface complied with the Council’s duties under equalities legislation;
• the Council’s decision not to insist on compliance with the landscaping plan.
28. The independent investigator reported back to the Council’s planning committee, after finding, amongst other things, that:
• the gravel path was poorly laid, so the surface had degraded causing trip hazards to form;
• the path’s camber was incorrect, so that surface water remained on the path, contributing to further degradation;
• trees were generally planted in the correct positions, though lack of tree guards, proper mulching and properly prepared soil was evident;
• almost all semi-mature trees had failed, probably due to inadequate watering;
• native hedgerows were single rather than double planted but were generally in good health;
• other hedges were also generally in good health, though some areas needed replacing and some replacements were not in accordance with the landscape plan.
29. The planning committee did not disagree with the planning enforcement decision officers had made, but made recommendations for service improvements, including references to equalities law, a review of material and non-material amendments, and training to ensure records show records are kept of all matters associated with planning control.
30. Planning officers continued to work with the developer and RMC to improve the situation on the site. These discussions led to improvements, but Mr X and other residents remain unhappy that they will be responsible for costs they believe would have been lower if the Council had acted differently.

My findings

Planning enforcement decision

31. I must decide whether there was fault in the Council’s decision not to take enforcement action and insist on compliance with the landscape plan.
32. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault, and where we find it, we decide whether it caused a significant injustice to the individual complainant.
33. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act. Councils should keep adequate records of their decisions, including the details and background documents they relied on to make them.
34. The evidence shows the Council was aware of the allegations, investigated and considered them against their powers, and found the condition to be in breach. However, the Council’s planning enforcement officers judged the breach did not cause enough harm to the public to justify formal action. It is important to note at this point, that the private, financial interests of residents and the RMC are not material planning considerations.
35. Once it had made its decision, the Council kept a record on its document management system and published details of the outcome on its website. It followed the decision-making process we expect and so I find no fault.

Other matters – verbal ‘agreement’

36. An officer recalled that another officer had a verbal ‘agreement’ with the developer that a gravel path would be an acceptable alternative to tarmac, but there is no record of this on the planning file.
37. If there was evidence to show this happened, it is possible we would find fault in failure to keep a proper record, but I should not investigate further, because:
• I am unlikely to find evidence of what was said or understood by what was said.
• Officers can express opinions, but they do not bind the planning authority. It is quite possible the officer merely expressed a view that in their judgement, the change was acceptable. The opinion is not formal approval for the change.
• A verbal ‘agreement’ such as this is not legally binding. To formalise the change, and to create the possibility of a formally binding decision, the developer would have needed to make an application to vary the plans. This did not happen, so there was no agreement by the Council to vary the footpath’s materials.
• Councils have discretion on whether to enforce where it finds a breach of planning control. Enforcement is unlikely to happen unless the Council decides the breach causes significant harm to the public and, if an application to formalise the change was received, a refusal would be likely. That is what has happened here – the Council did not consider the change caused harm to the public.
• The outcome would not change, even if I found fault in record keeping, as the Council subsequently judged there was no good reason to take formal enforcement action.
• The purpose of planning control is to protect the public. In this case the main planning considerations are public access and the visual impact the path has on its environment. The residents are concerned about the impact the change of materials will have on ongoing maintenance cost. This is a private matter.
• If I had found fault, the most likely remedy would be a recommendation to consider improvements to record keeping, and the planning committee has already done this.

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Final decision

38. I completed my investigation as there was no fault in the way the Council made its planning enforcement decision.

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Investigator's decision on behalf of the Ombudsman