Summary: Ms X complained about the Council’s consideration of planning applications, failure to take enforcement action and delayed complaint responses. We have found fault which caused Ms X avoidable frustration and time and trouble but consider the agreed action of an apology and symbolic payment provides a suitable remedy.

The complaint

1. The complainant, Ms X, complains about the Council’s:
1. Consideration of applications to vary planning conditions submitted erroneously with her address in 2021 and 2023 (‘App A’).
2. Consideration of a full planning application (‘App B’) submitted without a valid land ownership certificate and its failure to properly consider her objections.
3. Failure to take enforcement action after she reported breaches of planning conditions.
4. Delayed responding to her complaint.
2. Ms X says due to the Council’s failures she did not receive suitable planning notice and the opportunity to comment. She says the developers subsequently obstructed access to her home, invaded her privacy and left the work site untidy and unsafe. She says the Council’s failure to take enforcement action also caused her avoidable distress, frustration and she went to time and trouble bringing her complaint.

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The Ombudsman’s role and powers

3. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. I have investigated the strands of Ms X’s complaint as set out at paragraph 1 (a) to (d), except planning matters dating back to 2021 at paragraph 1 (a). This aspect of her complaint is late as set out at paragraph 5 above and Ms X could have complained to us sooner.

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How I considered this complaint

8. During my investigation I considered the information provided by Ms X including the note of her telephone discussion with a colleague. I have also considered some information provided by the Council.
9. I have explained my draft decision to Ms X C and the Council and considered the comments received before reaching my final decision.

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What I found

Planning applications

10. The law says Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
11. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as impact on the character of an area, neighbouring amenity, traffic generation, noise, and highway safety.
12. Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies.

Ownership certificates

13. The government’s planning guidance says:
• The planning system entitles anyone to apply for permission to develop any plot of land, irrespective of ownership. However, an applicant is required to notify any owners of the land or buildings to which the application relates.
• When making an application, the applicant is required to sign an ownership certificate confirming ownership of the land to which the application relates, and that the relevant notices have been served.
• A planning application is not valid, and therefore cannot be determined by the local authority, unless the relevant ownership certificate has been completed.
• Certificate A should only be completed if the applicant is the sole owner of the land to which the application relates and there are no agricultural tenants.
• Certificate B is the ownership certificate which should be completed if the applicant is not the sole owner, and the applicant knows the names and addresses of all other owners.

Planning enforcement

14. Breaches of planning control are defined in section 171A of the Town and Country Planning Act 1990, 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.
15. 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 coming to an agreed compliance date to avoid further action.
16. The National Planning Policy Framework (NPPF) sets out the government’s planning policies for England and how these are expected to be applied. It says enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

The Council’s planning enforcement policy

17. The Council’s aims to:
• Log and acknowledge alleged breaches within three days of notification.
• Prioritises cases and will undertake site visits to establish exact nature of the breach as part of its investigative approach.
• Take a risk-based approach to alleged breaches in deciding most proportionate response in the circumstances of the case and considers enforcement action as a discretionary measure.
• Discuss and record the reasons for closure if it decides not to take further enforcement action. It will then write to the complainants with a clear explanation of its reasons before closing a case.

The Council’s complaint policy (valid at time of complaint)

18. The Council’s has a two-stage complaints process.
• At stage one, it will acknowledge complaints within five working days and a full response will be provided within 10 working days of the complaint being acknowledged. If an extension is required due to case complexity, it will inform the complainant of the reasons.
• At stage two it will acknowledge the request and provide a final response within 10 working days of acknowledgement. If an extension is required, it will inform the complainant and provide clear reasons for any outcome. The Council allowed a delay to a response if it was dealing with an ongoing case (as here) under this previous policy.

What happened

19. Ms X’s property is located next to a private development site. In late 2021, the Council granted full planning approval for new homes on the site subject to planning conditions.

Application to vary planning conditions (App A)

20. In early 2023 the developer made an application to vary a planning condition to change the car parking layout (App A). This application contained a certificate A ownership declaration.
21. Ms X did not receive a neighbour notification letter about App A. However, Ms X has confirmed she was made aware of the application by a neighbour. Ms X made enquiries and discovered the application had been submitted using her address which had happened on previous occasions, and which caused her frustration and inconvenience. Ms X emailed the Council about the repeated error and to set out her objections.
22. The planning officer’s report for App A says the Council:
• Publicised the application by sending out neighbour notification letters.
• Received objections from members of the public with concerns about site access, car parking layout and dangerous on-site parking.
• Considered the objections but decided they did not amount to material considerations which affected App A as they had been addressed by way of the original full planning application for the development.
• Decided App A was in line with its development management policy and the NPPF as it would not have an adverse impact on the character of the area, neighbouring amenity, and provision of off -street parking.
• Approved App A with further conditions.

Full planning application (App B)

23. The Council subsequently received a full planning application (App B) for further construction on the development site which included a set of plans (‘initial plans’). The application contained a Certificate A ownership declaration.
24. Ms X wrote to the Council and raised concerns. She believed further construction would not be possible without obstructing access to her land and causing her inconvenience.
25. It was identified that land within the red line area of the application was not all within the ownership of the applicant. The Council sought and received the correct certificate B from the applicant.
26. Ms X wrote to the Council with her objections to App B. Ms X also explained if the Council approved the application without resolving the land ownership issues, it would cause further civil dispute with the developers.
27. The Council received amended plans during its consideration of this application. These included minor changes to the location of a side garage door and did not change the dimensions of the garage. The Council did not consider it necessary to further publicise the amended plans. Councils may decide that some very minor changes are ‘de minimis’ and can be accepted without requiring a non-material amendment application or consultation.
• Publicised App B by way of a public site notice and sending letters to residents.
• Received two objections to the application including one from Ms X explaining her land ownership issue. It noted the land ownership certificate and notice period requirements had now been satisfied.
• Considered the material planning issues to include the impact of the proposed development on the design and character of the area, neighbouring residential amenity, and highway safety. It decided the development did not negatively impact these issues.
• Considered Ms X’s objections about land ownership but decided any dispute about property rights were civil matters which did not amount to material planning considerations and a reason to withhold consent.
• Approved App B subject to further conditions.

Ms X’s reports planning enforcement reports

28. The Council’s enforcement records show Ms X emailed the Council on different occasions to report alleged breaches of planning conditions in respect of App A and B. This included emails to say the developers had:
• Marked out car parking spaces which did not accord with App A approval (Ms X confirmed one issue was resolved by the time of the Council’s site visit).
• Left construction materials and rubbish on Ms X’s land.
• Erected a fence across the gateway at the back of Ms X’s property.
• Installed a porta-loo adjacent to her property which was a health and safety concern.
• Left a container on the work site which made it difficult for Ms X to access her car parking spaces.

The Council’s enforcement investigation

29. The records show the Council promptly escalated Ms X’s reports with its enforcement team and then completed a site visit to discuss the reported issues with Ms X and the developers.
30. The records say Ms X took legal advice and updated the Council to say she could obtain a private injunction to address the fence, on-going access issues and the materials and rubbish left on her property by the developers.
31. The records say the Council then reviewed its investigation findings and wrote to Ms X with an outcome. It said:
• The site visit had confirmed the works in relation to car parking spaces were in accordance with approval granted in App A. However, it noted a slightly different orientation had been adopted. It had decided it was not expedient to pursue enforcement action for this minor change.
• The developers were entitled to keep the storage container on-site until the conclusion of the development.
• It could not enforce the other alleged breaches as they were civil matters between Ms X and the developers. However, it noted Ms X now had legal recourse to address these issues.
• It had now exhausted its enforcement process and closed her case.

Ms X’s complaint to the Council

32. Ms X complained to the Council in early June 2023 about the issues she has raised with us. The Council acknowledged the complaint and explained it would provide a response within 10 working days.
33. In its stage one response in mid-July the Council:
• Accepted it had previously considered applications submitted with Ms X’s address as opposed to the development’s correct address because it failed to update its records. Ms X had therefore not received a neighbour notification letter for App A.
• Apologised for the above oversight and confirmed the records had been corrected to prevent recurrence and ensure Ms X received more recent notifications.
• Confirmed planning applications had been submitted without the correct land ownership certificates. But it ensured these were completed and adequate notice given to Ms X before it considered the applications and granted any approval.
• Explained it did not consider land ownership, property deeds or access rights as material planning considerations unless any submitted plans crossed an ownership boundary. Even, in such circumstances, it could still grant approval, but planning permission could only be legally implemented subject to discussion with the owner of the land.
34. Ms X says she received a copy of the above response on 22 July from her local councillor.
35. Ms X was not satisfied with the Council’s response and escalated her complaint. She also complained the Council had delayed in responding outside its complaints policy timescales.
36. In its (end August) stage two response the Council upheld its stage one complaint response position. It also apologised for its delayed stage one response.
37. Unhappy with the Council’s management of her complaint, Ms X approached the Ombudsman.
38. Ms X says she received a copy of the stage 2 response by email in mid-September.

The Council’s response to our enquiries

39. The Council explained:
• The delay in providing its stage one response was due to the ongoing enforcement case and a high workload.
• There was a delay in its stage two response due to an enforcement meeting with Ms X and its planning team. However, it kept Ms X advised of the reasons for the delay.
• It received and considered Ms X’s objections for App A and B.
• It considers its approval for App A and B were correctly reached following suitable publicity and consultation and based on consideration of the relevant material considerations and policies.

Was there fault and did it cause injustice?

i) Ms X complains about the Council’s consideration of an application to vary planning conditions submitted erroneously with her address in 2023 (‘App A’).

40. The Council accepts App A was submitted with Ms X’s address as opposed to the development address and has apologised to Ms X for the oversight. It also accepted the error had occurred on previous applications and it then failed to correct its records. The Council also confirmed that this meant Ms X did not receive a copy of the consultation letter sent to neighbours.
41. The records show the Council later corrected its records for App A to prevent recurrence and Ms X was made aware of the application by a neighbour and was able to make representations which the Council considered.
42. However, I am satisfied Ms X will have suffered avoidable frustration given the repeated nature of the accepted fault.
43. The available evidence shows the Council followed the necessary steps in correcting the App A address and considering Ms X’s comments together with what it considered to be material planning considerations before granting approval. I have seen no fault in the steps taken by the Council in its consideration of App A. I therefore cannot question the merits of its decision.

ii) Ms X complains about the Council’s consideration of a full planning application (‘App B’) submitted without a valid land ownership certificate and says it failed to properly consider her objections.

44. The records show the Council initially received App B with an incorrect Certificate A land ownership declaration. The records indicate Ms X bought this to the attention of the Council.
45. Land ownership is not a relevant planning consideration. In other words, it is not something that counts in favour or against a planning application. But this does not mean the question of land ownership has no relevance to the planning process. Because the law is clear that applicants must produce certification to show whether they are building on land they own, or which is in third party ownership. The Council must pay attention to which certificate the applicant provides as it must not “entertain” an application with incorrect certification. There is no discretion in that. The law uses the word ‘shall’, meaning it is mandatory on the Council to reject such an application. I accept that in practice the Council will rely first on the word of the applicant that they have produced the correct certificate. I also accept the Council is not responsible for resolving boundary disputes where neighbouring landowners disagree. But where someone challenges land ownership the Council must have some process not only for raising that with the applicant but also bringing its own judgement to bear on the matter.
46. In this case the Council contacted the developer to obtain the correct certificate and to ensure it provided the required notice period to affected landowners. The correct declaration was subsequently provided before the Council determined the application. The planning officer’s report sets out this issue. I see no fault here by the Council.
47. The planning records show the Council publicised, consulted and considered objections to App B including Ms X’s comments about issues which would impact her land. The officers report confirms the Council addressed what it considered to be material planning considerations before granting approval. I note Ms X believes the Council should not have granted approval for App B as there was an ongoing land dispute between her and the developers. However, as explained above, this does not preclude the Council from considering an application. The Council also clearly explained this position in the officer’s report and its complaint responses. I do not find fault in the steps taken by the Council in its consideration of App B. I therefore cannot question the merits of its decision.

iii) Ms X complains the Council failed to take enforcement action after she reported breaches of planning conditions.

48. Based on the evidence seen the Council acknowledged Ms X’s reports of alleged planning breaches. The records show the Council then remained in communication with Ms X and undertook a site visit to better understand her concerns and discuss the situation with the developer. The Council noted some of the alleged breaches were not substantiated and others amounted to civil issues between Ms X and the developer. The Council then wrote to Ms X to explain why it would not be taking any further enforcement action. I find the Council’s investigation of Ms X’s reports was in line with the law and its enforcement policy which say enforcement action is discretionary subject to the circumstances of each case. I do not find fault in the way the Council investigated and the steps in its decision making to not take further action in Ms X’s case. I therefore cannot question the merits of its decision.

iv) Ms X complains the Council delayed responding to her complaint communications

49. The Council has accepted there was delay in providing a response to Ms X at stage 1 of its complaint procedure. The Council provided an apology for the delay in its stage 2 complaint response. We would normally consider an apology is sufficient to remedy injustice from flawed complaint handling and I consider that to be the case here.
50. The Council also accepts it failed to provide Ms X its stage two response within its published complaint’s timescales. The Council has provided cogent reasons for the time taken and kept Ms X informed of progress. I do not find fault in relation to this aspect of Ms X’s complaint.

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Agreed action

51. Within one month of my final decision, the Council will:
1. Write to Ms X and apologise for failing to identify the repeated use of an incorrect address for an application to vary planning conditions, which meant Ms X did not receive a neighbour notification letter and her avoidable frustration.
2. Make a symbolic payment to Ms X of £250 for her avoidable frustration.
52. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

54. I have completed my investigation as I have found fault by the Council but consider the agreed actions above provide a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman