Summary: Mr X complained the Council acted beyond its authority, and contrary to its constitution, when it granted planning permission to develop land near his home using delegated powers. Mr X also complained the Council failed to remedy breaches of planning control at the site due to delays, lack of action, and undue leniency towards the developer. We did not investigate the Council’s decision to grant planning permission. There was no fault in the Council’s consideration of the planning enforcement issues.

The complaint

1. Mr X complained the Council acted beyond its authority, and contrary to its constitution, when it granted planning permission to develop land near his home using delegated powers.
2. That permission was subsequently quashed, but not before the developer breached planning control by digging and laying foundations. Mr X complained there were further breaches of planning control as the developer used the land to store machinery, plant equipment, and building materials.
3. Mr X complained the Council failed to remedy the situation through enforcement due to delays, lack of action, and undue leniency towards the developer, to the detriment of residents.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

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What I have and have not investigated

6. The Council quashed planning permission after a legal challenge by Mr X and residents. I therefore did not investigate the Council’s decision to grant planning permission. My investigation focused on the planning enforcement complaint.

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How I considered this complaint

7. As part of the investigation, I considered the complaint and the information Mr X provided.
8. I made written enquiries of the Council and considered its response along with relevant law and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

National planning enforcement policy and guidance

10. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
11. 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.
12. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
13. 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 September 2023, paragraph 59)
14. Councils have a range of options for formal planning enforcement action available to them, including Planning Enforcement Notices. A Planning Enforcement Notice will identify a breach of planning control and require action to remedy it.

The Council’s planning enforcement plan

15. One principle the Council bases its enforcement plan on is proportionality. The Council will take action proportionate to the risk and seriousness of the breach. It will consider a range of powers, including negotiation and retrospective planning permission.
16. Where the Council identifies a breach of planning control it considers sufficiently harmful, it will first try to resolve the issue through negotiation and informal action.
17. The Council will give developers the opportunity to quickly correct matters before taking formal action.
18. The Council will not take enforcement action just because a breach has occurred, or to punish those responsible, regardless of whether they acted deliberately.
19. If informal negotiation is unsuccessful, and the Council considers the harm is significant, formal enforcement action will usually follow.
20. The Council’s enforcement plan sets out that this can be a lengthy and complex process, involving appeals and prosecution before the case is resolved.
21. The Council confirms it must satisfy itself there is enough evidence for a realistic prospect of conviction, and that proceedings are in the public interest, before it begins legal proceedings.
22. The Council receives many complaints about alleged planning breaches. It therefore prioritises enforcement cases based on their seriousness, and it will focus its resources on the most serious cases. Its plan sets out that it is not possible to take action against breaches causing little or no harm.

What happened

23. I have summarised below some key events leading to the complaint. This is not intended to be a detailed account of what took place.
24. The Council granted planning permission in 2018 for a new house on land near to Mr X’s home. It did this under delegated powers. However, following a legal challenge by residents, the Council realised it made a mistake. It therefore quashed planning permission.
25. The developer had made a start on the house, including laying concrete footings and foundations. The Council told the developer to stop work and resubmit their planning application.
26. The planning committee refused the resubmitted application.
27. The developer made two further resubmissions of their application, but the planning committee refused both times. The developer also made an unsuccessful appeal to the planning inspector.
28. The most recent refusal came in February 2021. Following this, the Council started formal enforcement action. It served an enforcement notice on 15 June 2021, requiring the developer to clear the site and remove the foundations and footings.
29. The developer appealed. The planning inspector refused the appeal in February 2022. The applicant then had two months to follow the enforcement notice.
30. Mr X made an enforcement complaint in May 2022, alleging that, as well as laying foundations, the developer used the site to store plant machinery, equipment, fencing, building materials, and shipping containers without planning permission.
31. The Council contacted the developer about this.
32. The developer removed shipping containers and machinery from the site. However, they did not remove the foundations and footings of the house.
33. The Council sent warning letters and threatened the developer with prosecution if they did not fully obey the enforcement notice. The Council then sent the case to its litigation team in July 2022.
34. The Council asked the Courts for a hearing in November 2022. The Court set a hearing date of 7 December 2022.
35. The developer was successful in asking for the hearing to be adjourned, citing personal reasons. The developer also wanted to obtain a surveyor’s report to assess whether removing the foundations and footings would undermine the structural integrity of the surrounding walls.
36. The Court set a new hearing date of 1 February 2023, where the developer pleaded not guilty. The Court set a trial date of 20 July 2023.
37. Before the trial, the developer provided the Council with a surveyor’s report. The surveyor considered it was not safe to remove the foundations and footings, due to the potential impact on a boundary wall and on an adjoining property. The developer intended to rely on this report in their defence as a reason not to remove the foundations and footings. Instead, the developer proposed only to cover them over, which they had already done.
38. The Council asked its own expert to assess removal of the foundations and footings. The Council’s expert did not disagree with the opinion of the developer’s surveyor.
39. The Council therefore withdrew the prosecution. The developer had already covered the foundations and footings. They also removed some remaining building materials and fencing.
40. Mr X complained to the Council in December 2022. First, he complained about faults in granting planning permission and failing to ensure the developer adhered to relevant conditions before starting work. He also complained about long delays in the subsequent enforcement action, impacting resident’s amenity and affecting the value of his home.
41. The Council responded to the complaint in January 2023. It accepted failings in granting planning permission, which it said it recognised when it quashed the permission.
42. On the enforcement matters, the Council said it did not ignore evidence about site levels. It visited the site and followed correct process. It said enforcement action is discretionary. It acknowledged the harm caused to residents in its enforcement notice. It said the impact on the value of Mr X’s home is not a material planning consideration and had no bearing on its decision making.
43. On delays, The Council said it must consider further planning applications from the developer, which is in line with its enforcement plan. It also said its litigation team has competing priorities and deals with causes causing severe harm first. It said this case did not fall into that category given works on site had stopped.
44. The Council said, as the developer has not complied with all elements of the enforcement notice, the case was subject to prosecution with the courts. It said it fulfilled its duties and cannot speed proceedings up.
45. Mr X asked the Council for a stage two consideration by a senior manager in February 2023.
46. The Council sent its stage two complaint response in April 2023. It said it reported the enforcement case to the planning committee on 25 May 2021 for authority for formal action. Formal action was not suitable before as the developer was working with the Council to realise a successful scheme at the site. Such positive engagement is required by national policy.
47. The Council said it served an enforcement notice on 15 June 2021, which the developer appealed. The planning inspector dismissed the appeal on 23 February 2022. The Council said when an appeal is made, compliance with the notice is put into abeyance until the result of the appeal, and it cannot take further action. Once the planning inspector dismissed the appeal, the developer had two months to comply.
48. The developer took some action, but materials remained on site and they did not remove the footings. The Council gathered evidence and sent warning letters threatening prosecution. It gave the developer a chance to comply before prosecuting. It then reported the case to its litigation team on 4 July 2022.
49. The Council said the delay in proceedings is largely out of its control and it works to the court’s agenda. It said it requested a hearing in November 2022, but the court did not issue a summons, so the Council had to ask for a new hearing in December 2022.
50. The Council’s legal team agreed to adjourn the hearing due to the developer’s personal circumstances and their request to obtain a surveyor’s report to determine whether it was safe to remove the footings.
51. The Council said it considered its actions reasonable in terms of proportionality and timeliness.
52. Mr X brought his complaint to the Ombudsman in June 2023.
53. Mr X continued to complain to the Council about the site. He said the developer failed to fully clear the site, including leaving behind some building blocks.
54. The Council initially told Mr X these blocks belonged to the former owner of the site, Yorkshire Water. It later told him the blocks, on their own, were not considered to cause material harm and did not amount to use of the site or storage.

My investigation

55. The Council told me it did not consider formal enforcement action was suitable until after the most recent refusal of planning permission. The developer had been working with the Council to try to secure a successful scheme. This engagement is expected in national policy and expediency was also a consideration.
56. The Council said it served an enforcement notice because it considered the site caused harm to the residential appearance and character of the area. It also considered the partially formed foundations caused visual harm to the residential character and general appearance of the area.
57. The developer covered the foundations with earth, and they are now obscured from view. They also removed materials from the site. The Council considers the developer has removed the harm identified in the enforcement notice, so it closed the enforcement case.
58. The Council considered there was no realistic prospect of conviction following the surveyor’s report about the risks of removing the foundations and footings. It considered covering them up would address the visual harm caused. The Council also considered public interest was better served by asking the developer to remove the remaining building materials on site, rather than pursuing a prosecution solely on that basis.
59. The Council told me Mr X did not explicitly identify the building blocks left on site. It said there are stones, rather than blocks, at the top of the driveway which it understands were present when the developer bought the site. The planning service decided these stones did not cause material harm and sit outside the land which the enforcement notice relates to.
60. The Council said there are also a small number of blocks at the front of the site next to the boundary wall. When the developer cleared the site, the planning service decided these blocks on their own did not constitute use of the land or storage of materials. Nor did they harm the appearance and character of the area, as they are largely hidden by vegetation. The Council said its planning service considered the blocks when it decided not to pursue prosecution.

Analysis

61. When the developer’s planning permission was revoked, the Council identified breaches of planning control. However, the developer decided to change their original plans and apply for planning permission again. This meant the Council could not pursue enforcement action. Although the Council refused planning permission, the developer made further applications and appeals. Again, this meant the Council could not pursue enforcement action. Mr X considers the Council was responsible for delays by not pursuing formal enforcement action and allowing the developer to make more applications. However, I found the Council acted in line with policy and guidance.
62. Once the Council was satisfied the developer did not intend to make a further planning application, it re-started the enforcement process. Mr X is unhappy the Council did not immediately start enforcement action. I found the Council discussed the case at the next available planning committee meeting, where it sought approval for formal action. The Council then referred the matter to its legal department to prepare the enforcement notice. While I appreciate Mr X’s frustration with the delay at this stage, I did not find the Council at fault. Formal enforcement action is not straightforward, and the Council had to ensure it followed the correct procedure.
63. Mr X is also unhappy with the amount of time the Council gave the developer to clear the site. Councils are expected to work with developers to remove harm caused by planning breaches. I do not consider the Council was responsible for any significant delays before it decided to serve an enforcement notice.
64. The developer then appealed the enforcement notice, which prolonged matters. This was out of the Council’s control. After the appeal was unsuccessful, the developer failed to clear the site within the time allowed. The planning service therefore handed the case to the Council’s legal services to pursue a prosecution.
65. Mr X is unhappy the Council’s legal services allowed the developer more time, including to obtain a surveyor’s report. While I can appreciate Mr X’s frustration, a surveyor’s report was relevant to the requirements of the enforcement notice. I found no clear evidence of fault here.
66. After the developer cleared the site, the Council decided it is no longer used for development or to store construction materials. I found that a fair characterisation of the situation. The site is now overgrown with vegetation, with only a few items remaining. When comparing images of the site after the developer cleared it, with images before the developer acquired it, I found no significant material differences.
67. It is for qualified planning officers to decide what impact or harm planning breaches are causing, and whether the Council should pursue formal enforcement action. It is not the role of the Ombudsman to give an opinion about this. Our role is to assess whether planning officers considered the material issues when reaching their decision.
68. Before withdrawing the prosecution, I found officers visited the site, considered the impact on residents, and considered the visual impact on the appearance of the street. They also considered the aims of the planning enforcement notice, the expert evidence from qualified surveyors, and the costs to the public of pursuing the prosecution to a court hearing. I therefore found no evidence of fault in the Council’s decision-making.
69. Mr X is understandably concerned about the foundations left on site; in case they are used for development in future. The developer produced a report which found removing the foundations could damage the boundary wall and a nearby house. The Council sought expert opinion about this, but the expert it consulted did not disagree with the developer’s expert. In those circumstances, I find no fault in the Council’s decision not to compel the developer to remove the foundations. I also found no fault in the Council’s decision that by covering the foundations, the developer had removed the harm the Council identified in the enforcement notice.
70. I appreciate Mr X’s anger and disappointment at the Council’s decision to abandon the prosecution. He sees the Council’s approach as favouring the developer and ignoring residents. However, I found the Council acted in line with national planning policy and guidance. The Council is expected to work with developer’s and reach amicable solutions which avoid the need for formal action. The guidance is clear the Government does not expect councils to pursue formal action, or prosecution, in every case where a council finds a breach. They should explore and exhaust alternatives.

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Final decision

71. I completed my investigation. We did not investigate the Council’s decision to grant planning permission. There was no fault in the Council’s consideration of the planning enforcement issues.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman