Summary: Mr E complains the Council failed to take enforcement action relating to alleged planning breaches caused by a neighbouring development. We have not found evidence of fault by the Council and have completed the investigation and not upheld the complaint.

The complaint

1. The complainant (whom I refer to as Mr E) says the Council has failed to take enforcement action related to a neighbouring development in 2022 and 2023.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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)

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What I have and have not investigated

4. I have considered whether the Council acted in line with procedures when investigating Mr E’s reports of an alleged planning breach. It is not for the Ombudsman to say whether there has been a planning breach, that is for the Council to determine. I have not investigated the alleged water discharge onto Mr E’s land from a third party, that would be a civil matter which Mr E can pursue with the courts. Surface water issues are for the Local Lead Flood Authority, rather than the Council, to consider.

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How I considered this complaint

5. I have carefully considered the information provided by Mr E. I asked the Council questions and examined its response and supporting case file.
6. I shared my draft decision with both parties.

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What I found

What happened

Background

7. The Council granted outline planning permission for a housing development in 2015. A condition (condition 21) was attached to the permission about ecological assessment mitigation recommendations including maintaining a 20 metre buffer zone in an ancient woodland. Subsequently the Council granted full planning permission for the development, it attached a condition (condition 20) about ground levels and the location of an attenuation pond within an ancient woodland buffer zone (Mr E owns the woodland). In 2020 it approved a discharge of condition for condition 20.

Events I have investigated

8. At the end of October 2022 Mr E complained to the Planning Enforcement Team at the Council. He said condition 21 was being breached and the 20 metre buffer zone was not being maintained including the position of an attenuation pond. The complaint was considered at a Planning Enforcement meeting. Officers found no planning breach; the outline planning permission and conditions had been superseded by the discharge of conditions in 2022. On 9 November Mr E submitted another complaint related to the full planning permission for the development. The attenuation pond was closer to woodland and ground levels had been raised which would impact on the trees. Two days later the Council agreed to investigate matters further. The Planning Enforcement Officer (Officer) sent Mr E an update on 25 November explaining he would be visiting the site along with another Senior Planning Officer to meet the developer and assess the complaint.
9. In December the Officer carried out a site visit. The Interim Development Manager also reviewed the evidence. The evidence showed ground levels were in line with the approved conditions and the attenuation pond was allowed to be sited within the 20 metre buffer zone because the 2022 discharge of conditions allowed this.
10. A decision was made on 20 December and the Officer notified Mr E. He advised there was a discrepancy between the 2015 condition 21 and the submitted plans approved in the 2022 discharge of conditions. That was because the discharge of conditions approved development within the 20 meter buffer zone contrary to condition 21 in 2015. The Officer advised Mr E that it was condition 20 that was in place and if the developer met the requirements of condition 20 and maintained the site in line with the approved plans there was no planning breach. In respect of water being discharged from the attenuation pond onto a neighbour’s land, this was a private legal matter. Mr E had raised concerns about surface water flooding. The Council stated there was no planning condition related to control of flood risk during construction and so nothing it could seek to enforce. However, the Lead Local Flood Authority (the County Council) might be able to assist Mr E.
11. In February 2023 Mr E submitted a formal complaint challenging the Council’s decision. A month later the Council replied. It said Officers had liaised with developers, carried out a site visit and took account of the National Planning Policy Framework. It found there was no planning breach and condition 20 had been correctly discharged. At the end of the month Mr E asked the Council to reconsider his complaint. The Council responded that it had previously set out its decision making and the case remained closed.

12. What should have happened
13. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
14. When the Council receives a complaint about an alleged planning breach it is passed to the Planning Enforcement Team to consider. It triages new complaints and discuss them at a weekly meeting. Officers decide whether a case indicates a possible breach that requires further investigation or whether it should be closed. The case is allocated to an Officer who should notify the complainant about any decision reached. If further investigation is needed the Officer may carry out a site visit, check the approved plans, liaise with the developer.
15. The Council can take enforcement action if it finds planning rules have been breached. However, it should not take enforcement action just because there has been a breach of planning control. Government guidance says: “Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework July 2018, paragraph 58). If there has been no breach the Council should notify the complainant and close the case.

16. Was there fault by the Council
17. I have considered whether the Council followed the correct process when it investigated Mr E’s complaints in 2022. I have not found evidence of fault by the Council. The Officer allocated Mr E’s case acted in line with policies and procedures. He correctly notified Mr E in November 2022 that condition 20 effectively superseded the earlier outline planning permission and condition 20. When Mr E submitted a second complaint the Officer investigated whether the current condition had been complied with. He visited the site and made checks into the ground levels and position of the attenuation pond. The outcome of the investigation was explained to Mr E in December along with reasons for why the Council could not assist with some parts of his complaint.
18. I appreciate Mr E disagrees with the Council’s decision. However, the Council is entitled to reach a view that Mr E does not accept as long as it has acted in line with procedures. In this case I am satisfied the Council did adhere to the correct process for assessing an alleged planning breach which means there is no basis for the Ombudsman to question the validity of that decision.

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Final decision

19. I have completed the investigation and not upheld the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman