Summary: Mr L complains the Council failed to take sufficient action over breaches of planning approval on a neighbouring development. Our view is the Council did respond as the law expects it to. In the absence of any administrative fault, the merits of the decisions the Council made about enforcement are not something we can criticise. So we do not uphold the complaint.

The complaint

1. The complainant, whom I shall describe as Mr L, complains the Council failed to take sufficient action over breaches of planning approval for a neighbouring development. It did not consult with relevant bodies about a drainage issue. And it did not take action over the development’s unauthorised raised ground levels.

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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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How I considered this complaint

4. As part of my investigation, I have:
• considered the complaint and the documents provided by Mr L;
• made enquiries of the Council and considered its response;
• spoken to Mr L;
• sent my draft decision to Mr L and the Council and considered their responses.

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What I found

Legal and administrative background

Planning enforcement

5. A breach of planning control is 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.
6. 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. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach.
7. 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.
8. 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)
9. As recommended by the National Planning Policy Framework, the Council publishes its own Local Enforcement Plan. This plan notes that “[w]hen determining whether or not to take enforcement action the Council has to decide whether or not it is expedient to do so. ... The key test being whether the breach of planning control would unacceptably affect public amenity”.

What happened

10. Mr L’s home borders a development site that has had planning permission for several years. There have been several subsequent decisions about discharging conditions on the permission.
11. In July 2023 a councillor complained to the Council about residents’ (including Mr L) concerns about the development as being built. He raised concerns about the height of the buildings and drainage of surface water.
12. The Council opened a planning enforcement investigation. Its officer made an unannounced visit to the site at the end of the month, to discuss residents’ concerns. The officer spoke to the site manager about both the drainage and the build height.
13. Following the visit, the Council was satisfied the developer was complying with the planning conditions relating to drainage and surface water. It did have some remaining concerns about the build height of some of the plots. It asked the developer to confirm the buildings’ heights.
14. The Council’s officer met the developer’s manager on a further site visit. The officer had a discussion with the manager about some differences between what the developer had built and what had planning permission. The manager said any differences were unintentional.
15. The officer agreed with the developer changes to the site that included:
• an application to the Council to change the window height in three of the new dwellings;
• erecting a higher fence; and
• installing a drain around the permitter of the development, to prevent surface water reaching neighbouring plots.
16. The officer advised Mr L the level of land did appear to be higher than in photographs he had provided. But the difference was not sufficient, in the Council’s view, to demonstrate significant extra harm to amenity. So, with the adjustments the Council had asked the developer to make, its view it was not expedient for take enforcement action at that stage.
17. The developer applied for planning permission for the changes to the development. The Council granted the changes to levels of the windows as a non-material amendment.
18. In October the Council closed its planning enforcement investigation on the grounds that it was not expedient for it to enforce the breach in the planning permission.

Analysis

19. Councils are under a duty to investigate complaints about alleged breaches of planning control. If a breach of planning control is found, a council has power to take action, but has no duty to do so. The duty is to consider whether it is expedient in the interests of public amenity to take enforcement action.
20. The developer did build some plots higher than in the planning applications. But the Ombudsman’s task is to ensure that the Council responded properly to reports of these breaches.
21. Although the breaches did recur, there was no fault by the Council in how it dealt with these. Its files show that it responded quickly to reports of these, visiting the site and discussing the concerns with the developer. It is for the Council to decide whether it should take formal enforcement action or require the developer to submit applications to regularise breaches and, in the absence of administrative fault, the Ombudsman cannot criticise the decisions the Council made.

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Final decision

22. My decision is there was no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman