Summary: There is no evidence of fault by the Council. The Council has responded to complaints about planning enforcement by investigating and reaching decisions there is no planning breach or it is not expedient to take action, aware of all the relevant facts.

The complaint

1. The complainant, who I shall call Mr X, complains about the Council’s response to his complaints that a housing development has not been built as shown on the planning permission. He complains the original planning permission included houses that are too close to his property and did not show finished floor levels.
2. Mr X complains that:
• the Council has not taken enforcement action that the finished floor level of a house is 10 cm higher than shown on the approved plans.
• The Council has not taken enforcement action over a house built 1 metre closer to his property boundary than shown on the approved plans.
• The Council has not taken enforcement action over a fence that has not been built as shown on the approved plans.
• The Council has not taken action over breaches of the Construction Environmental Management (CEM) plan.
3. Mr X says that it has been very stressful and the development has affected his home.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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 Mr X’s recent complaints about planning enforcement and the CEM plan.
8. 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) So, I do not intend to exercise discretion to investigate events relating to the original planning consent in 2015. This is because it is unlikely we would be able to establish what happened after 9 years and it would have been reasonable for Mr X to have complained sooner.
9. Mr X explained that he had recently raised a new complaint about flooding. The Council would need to be able to consider this through its complaints procedure before the Ombudsman could look at this.

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How I considered this complaint

10. I read the papers put in by Mr X and discussed the complaint with him.
11. I considered the Council’s comments about the complaint and any supporting documents it provided.
12. Mr X and the organisation 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

House position

13. Mr X said he thinks the house is in the wrong place, as on the plans the house is shown in relation to the fence. Mr X does not accept the house is in the right place but the fence has moved.
14. The Council has visited the site to measure the distance from the new houses to Mr X’s boundary. The Council has said the house is 4.4 metres to Mr X’s boundary. The distance on the approved plan is 4.2 metres. So, the house is slightly further away than shown on the approved plan and there is no breach of the planning permission in relation to the position of the house. There is no evidence of fault by the Council on this point.

Finished floor level

15. The Council has said that in response to Mr X’s complaint, it had an independent survey carried out to check the height of the finished floor level of the new houses behind his garden. This survey, based on the available information, concluded the finished floor level was 10 cm higher than approved.
16. The Council has said ‘considering the possible minor increase in finished floor height and the distance from the development to Mr X’s property, the impact on Mr X’s property is not considered to be materially different from the impact of the approved position. Based on no material harm being found and the nation enforcement guidance, it is not considered expedient to take enforcement action.
17. The Council has investigated Mr X’s complaint and has reached a decision, aware of all the available evidence, not to take enforcement action. I appreciate Mr X disagrees with the decision but it was a decision the Council made without evidence of fault.

Fence

18. In response to Mr X’s complaints about a change in the line of the fence the Council visited the site. The Council has said there are minor deviations from the approved line of the fence, including a ‘dog leg’. The Council invited the developer to put in a revised plan, to regularise the fence as it is built but the developer has not done so yet.
19. The Council has said ‘given the limited harm identified and taking account of planning guidance that enforcement action should not be taken where the development is acceptable on its planning merits and the action would be to solely regularise the development, it is not considered expedient to take enforcement action if a reviewed plan is not received’.
20. I have considered the steps the Council took to consider whether to take enforcement action over the fence, and the information it took account of when deciding not to take further action if amended plans are not submitted. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.

Construction Environment Management Plan

21. Mr X complained to the Council in the summer of 2022 about dust from the development. The Council visited the site in September 2022, November 2022, and February 2023. No dust was witnessed and Council officers noted the roadsweeper was working.
22. The Council officer noted some dust created by vehicle movements in June 2023. The officer said that road sweepers and water bowsers were working but he would talk to the developer about the dust. The Council also responded to complaints about work starting before 8am, but site visits showed no machinery was in operation so there was no breach of planning control.
23. Officers spoke to the site manager in July 2023 and noted the road sweeper was in operation. The officer asked the site manager to scrape the road before sweeping started.
24. In response to my enquiries the Council has said that officers have been visiting the site to ensure that works were not starting before the times specified in the CEMP and to ensure reasonable measures were being undertaken with regard to dust control. The Council has observed the use of dust control measures and has not observed the operation of plant outside of the times specified in the CEMP’.
25. The Council has explained, in its response to Mr X’s official complaint that ‘it accepts there was a problem with dust levels in summer 2022 but the planning enforcement team visited the site in September 2022 and there was no evidence of a dust problem in the winter. I can find no evidence of fault in the Council’s response to complaints about non-compliance with the CEMP. The Council has visited, spoken to the contractors and ensured the measures outlined in the CEMP are in place.

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Final decision

26. I have completed my investigation of this complaint. This complaint is not upheld, as there is no evidence of fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman