Summary: Miss X complains about the way the Council has dealt with and taken enforcement action against a breach of planning control at a neighbouring property. We found no evidence of fault in the way the Council has considered these matters. We found fault in the way the Council responded to Miss X’s complaints causing her an injustice through her time and trouble in pursuing a complaint. We have recommended a suitable remedy for the injustice caused in this case.

The complaint

1. Miss X complains about the way the Council has dealt with and taken enforcement action against a breach of planning control at a neighbouring property. In particular Miss X complains:
• The Council has allowed the developer to build a house and garage which are larger than the originally approved plans and granted retrospective approval for this.
• The developer has only recently installed drainage at the site without gaining the necessary planning approval. The need for both surface and foul water drainage systems were conditions of the approved plans.
• The application for a septic tank/foul water drainage system remains outstanding and yet to be decided by the Council.
• The Council has failed to act proactively and take enforcement action despite the breach of conditions at the development for many years.
2. Miss X says this has resulted in her property being subject to flooding and standing water in wet weather causing her distress and impacting onto the amenity of her property.

Back to top

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 the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. 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)

Back to top

What I have and have not investigated

6. I have not investigated Miss X’s complaints about the Council’s decision to grant planning permission for the house in 2018, garage in 2020, retrospective planning permissions in 2022 and concerns about enforcement action then. This is because I consider Miss X’s complaints about those events to be late and more than 12 months since she was first aware of them. I consider it reasonable to expect Miss X to have complained to us before now about those issues.
7. Miss X complained to us in May 2024. So, I have considered events from May 2023 when Miss X contacted the Council with complaints about the development site, being 12 months before her complaint to us. I have not investigated enforcement and planning matters after May 2024 as these are ongoing matters.
8. I have provided information about events from 2018 to provide background to Miss X’s complaints and from May 2024 to explain the current situation.

Back to top

How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Planning enforcement

11. Development without the necessary planning permission or that does not comply with a permission and its conditions, will be a breach of planning control. Councils should investigate reported breaches. But enforcement action is discretionary so, if they find a breach, councils may decide to take informal action or not act at all.
12. The Government’s National Planning Policy Framework (NPPF) says councils should act proportionately in responding to suspected breaches. When deciding whether to enforce, councils should consider the likely impact of harm to the public. They should also consider whether, if receiving a planning application, they might give the unauthorised development planning permission.
13. The Council’s Enforcement Plan says it will act proportionately when dealing with suspected breaches of planning control. It aims to ensure the effective compliance with planning and other associated legislation, the regulation of development and use of land in the interests of the public and promotes and protects the character and appearance of South Holland. The Council seeks not only to act expediently, appropriately and proportionately in pursuing enforcement but also to negotiate, educate and reach acceptable conclusions in order to avoid formal enforcement action.
14. The Council will investigate breaches of planning control and in case where it is reasonable and proportionate take formal enforcement action. In most cases the breaches can be remedied by obtaining planning permission or other consent.
15. An officer may visit a site, consider evidence and decide if a breach has occurred, it is expedient to enforce and what course of action should be taken. The Council will only take enforcement action if it is considered to be an expedient course of action. It says enforcement action should be commensurate with the breach of planning control to which it relates, and the Council will seek to act proportionally on all enforcement matters.

Summary of what happened

16. What follows is a summary of key events. It does not contain all the information I reviewed during my investigation.
17. The Council granted planning permission for a house to be built on land near to Miss X’s property in 2018. At the end of 2019 Miss X complained the developer was building a garage without planning permission. The Council received a part retrospective planning application for the garage in 2020.
18. A planning officer visited the site and requested a revised block plan for the garage. And a new retrospective application for the house as it was not being built in the position shown on the approved plans. The Council granted retrospective planning permission for the garage in 2020. It included planning conditions for the developer to provide details and gain approval for surface water disposal before the building was brought into use.
19. The Council received a retrospective planning application for the house to regularise the breach of planning control. It noted work had already commenced on site without planning permission. But said it was not an offence providing retrospective planning permission was sought. It granted planning permission in 2021. The permission included a condition about drainage to be submitted and approved by the Council before ‘practical completion’.
20. The Council’s Building Control service visited the site in 2021 following reports of surface water flooding on neighbouring land. The inspection concluded it was assumed to be from recent rainfall with it being noted that ‘most fields in the area are flooded in their low spots’.
21. Miss X complained to the Council the house was not being built according to the approved plans with some additions to the design. The Council advised the developer to submit revised plans. The developer submitted two retrospective applications to regularise the house and garage in 2022.
22. The Council noted residents’ concerns that work had already started on site without planning permission, the build changed several times and conditions previously attached had not been complied with. But this was not an offence providing retrospective planning permission was obtained. The Council approved the two applications. It included again conditions requiring the developer to submit details of foul water disposal and soakaway systems and approved by the Council before ‘practical completion’ of the house.

Events from May 2023

23. Miss X contacted the Council in May 2023 alleging the developer was partially using the garage. The Council contacted the developer to confirm if the building was in use and that details of some conditions needed submitting before the building was brought into use. The developer said the garage needed completing, was not in use and sent information to discharge some conditions. The Council told the developer they needed to submit a formal condition compliance application.
24. The Council received a condition compliance application for three of the conditions. Miss X contacted the Council alleging the building had been in use from 2021. Miss X was concerned about the water flowing across a field by her property and onto her land from the development site and referred to the need for surface water disposal conditions to be approved. The Council told Miss X it had received an application for condition compliance including the surface water disposal details.
25. The Council refused the application several months later saying it did not satisfactorily demonstrate how the water surface disposal would function. The Council asked the developer to submit a new application for the garage by January 2024 with details of tests taken to demonstrate the ground was suitable for the proposed disposal method. The Council did not consider the planning conditions for the house had been breached then.
26. The Council contacted the developer in January 2024 who advised tests were being carried out and progress made towards a resolution. The Council updated Miss X. The developer submitted a condition compliance application in February 2024 including the surface water disposal details.
27. Miss X submitted a complaint to the Council in February 2024 raising concerns about water being discharged from the development site onto land next to hers and so on to her property. Miss X said it could cause damage to her property, the Council had ignored the matter despite her contacts and failed to chase the conditions attached to the planning permissions. Miss X also commented on the condition compliance application and expressed concerns about what was proposed.
28. The Council said it was waiting for the test results from a qualified engineer on the surface water disposal method. The developer submitted a condition compliance application for the house in April 2024 including the foul water and surface water disposal systems.
29. Miss X complained to the Council the developer was carrying out work to install the drainage systems before the Council decided the applications and was concerned the Council was allowing the work to go ahead. The Council said it had received further information about the proposal and waiting for consultation responses. So, the developer was carrying out the works before any approval at their own risk.
30. The Council refused the application as it did not consider it satisfactorily showed how the proposed rainwater system would work without increasing the flood risk on or adjacent to the site. The Council inspected the drainage system built on the site and noted the works taken place. The enforcement team discuss the matter with the planning officer about the condition compliance for the house. The planning officer advised the drainage for house and garage would essentially be the same scheme. So, if the current condition compliance application for the house was eventually discharged, it would not be expedient to take formal action over the garage although it was agreed the Council would chase an application in due course if it discharged the conditions for the house.
31. Miss X complained to us in May 2024. The Council advised Miss X had not completed its complaints procedure and it wished to respond to Miss X at stage 1. We agreed to allow the Council the opportunity to respond to Miss X’s complaint first.

Events after May 2024

32. Miss X sent the Council her objections to the latest condition compliance application. Miss X’s main concern was the proposed drainage system did not increase her property’s risk of flooding. The developer provided the details of test results for the drainage scheme. The Council considered the application and noted in the planning report the house was approaching practical completion and the garage partly in use. The Council refused the condition compliance application in June 2024. This was because it did not consider it satisfactorily demonstrated the propose foul and surface water systems were viable without increasing flood risk on or adjacent to the site.
33. The Council responded to Miss X’s complaint. It apologised for the delay in responding to her concerns and said it would provide a full and detailed response to her in a few weeks. However, as a quick update it explained it had refused the application to discharge conditions, was working hard to seek solutions with all parties including the developer to robustly check the details submitted. The Council said it had retained control over the site and situation by refusing the latest unacceptable details. It considered the fundamental cause of the situation was because the developer had proceeded to carry out development without successfully discharging a key condition which was at their own risk and was clearly now a situation that needed to be resolved. The planning officer and Enforcement team were meeting soon to discuss necessary steps.
34. The Council contacted the developer advising the situation needed to be resolved urgently and failing to do so may result in formal action being commenced. But it would rather work with them to bring matter to a positive conclusion. The Council urged the developer to secure the services of a drainage engineer to prepare and submit a drainage scheme to satisfy the Council. And which it could accept shows the development was not causing water runoff to other land and properties.
35. In July 2024 the developer confirmed they had commissioned a drainage engineer. So, the Council allowed the developer time to prepare a revised application. In August 2024 Miss X advised us the Council had not been in contact with her to provide the detailed update and response to her complaint as agreed. So, we accepted her complaint for investigation.
36. The Council chased the developer for the outstanding details in September and October 2024. It says there was only a planning breach of conditions for the garage at this point, not with the house.
37. Miss X complained to the Council again in November 2024. Miss X said she was still waiting for a response to her stage 1 complaint and the developer was not taking action to address the drainage scheme since being refused. Miss X asked the Council to take enforcement action and complained it should not have allowed the developer to proceed without successfully discharging the conditions.
38. The Council responded and apologised for the time the matter was taking. It explained the developer stated they would be submitting an application to address drainage scheme. But if not received by shortly the Enforcement team would start formal enforcement action. It acknowledged the frustration caused to Miss X and the Council but said it has to be pragmatic in its approach and consider expediency at all times. If the developer submitted a new application to deal with drainage it would hold off any formal action while it was determined.
39. The Council confirms it has now received a condition compliance application which includes the foul water and surface water disposal system. This is now being considered. The building regulations service has also received an application for drainage related works at the site. But it needs supporting information before it can be considered.

The Council’s comments on the complaint

40. The Council says the issue has arisen from two developments, a house and garage, granted planning permission with drainage conditions. However, the way the conditions were worded for ‘prior to practical completion’ meant they were not pre-commencement (before construction started) and so building works could start and progress without the conditions being signed off and discharged by the Council.
41. The Council says it chased the developer at relevant times and continued to remind of the need to sort out drainage for the house before it was completed.
42. But because of the wording the Council says the planning conditions do not take effect for garage and house until a certain point. The Council considers this may have only been reached in late December 2024, so considers there was no breach of planning control for it to investigate before this date. The developer was still working on the property and living in a mobile structure on site in December 2024 when the Enforcement Officer visited to discuss matters. The developer was due to move into the house just before Christmas 2024. As far as the Council understands, practical completion was due to take place just before Christmas, so it was not until then that the condition for drainage should have been discharged. However, the Council now has the application to discharge conditions which is currently under consideration so says there is no material breach of planning control as of January 2025.

My assessment

43. The documents provided show from May 2023 the Council responded to Miss X’s complaints about the site and drainage. Officers have visited the site and requested the applicant submits applications to discharge the conditions when required.
44. The Council has advised it does not consider there has been a breach of planning control at the site until the end of December 2024 as buildings were not near ‘practical completion’ until then. The ‘practical completion’ phase is not mentioned in planning reports until May 2024 which supports the Council’s comment about the building works and whether they had been completed. I recognise that Miss X may not agree about the ‘practical completion’ as she has complained the buildings have been occupied before December 2024. However, the decision on whether there has been ‘practical completion’, or a breach of planning control before December 2024 has been made by officers using their professional judgement. We cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in this case.
45. This is because officers considered the information provided and visited the site to determine the situation during 2023 and 2024. This is according to the Council’s policy and practice and the requirements of Statutory Guidance. Officers did not consider there was evidence of ‘practical completion ‘until December 2024. This is a decision the officers are entitled to make. There is no evidence of fault in the way the Council reached the decision from the documents I have seen. So, I am satisfied there is no evidence of fault by the Council in dealing with a possible breach of planning permission between May 2023 and May 2024 as it did not consider the buildings concerned had reached the ‘practical completion’ stage.
46. The Council remains of view that there is no material breach of control at present as it has required the developer to apply to discharge conditions according to its enforcement policy. This is to negotiate and request the submission of retrospective and condition compliance applications to regularise a breach. The current condition compliance application is being considered and it will be for the Council to determine whether intends to take any formal enforcement action if it refuses the application.
47. It is unfortunate the developer has carried out works before receiving approval. The Council has advised this is not an offence if the developer applies to regularise the matter. But it will be at the developer’s risk to carry out works before approval and may result in the Council taking more formal enforcement action. While I appreciate that this is disappointing to Ms X the Council’s actions are according to its enforcement policy. As its enforcement powers are discretionary, it will be for the Council to decide whether to pursue a breach of conditions any further.
48. Miss X complained to us May 2024 and the Council advised Miss X had not completed the Council’s complaints procedure. So asked if it could have the opportunity to respond to Miss X at stage 1 in a few weeks. We agreed but the Council failed to provide this response to Miss X. This fault by the Council and it has caused an injustice to Miss X because it raised her expectations, she would receive a detailed response from the Council to the concerns she has been pursuing for some time. I recommend therefore the Council apologises to Miss X and makes her a payment of £150 in recognition of the Council’s failure to provide a detailed response to Miss X at stage 1 and the time and trouble she has been put to in making her complaint. I also recommend as a service improvement the Council reviews its complaints handling procedure to ensure it has systems in place to check it has responded to complaints received within the timescales laid down and agreed to.

Back to top

Agreed Action

49. To remedy the injustice, I have identified in paragraph 47, the Council will, within in one month of my final decision:
• Apologise to Miss X for the failure to respond to her complaint at stage 1. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The council should consider this guidance in making the apology I have recommended in my findings.
• Pay Miss X a payment of £150 for the failure to provide a detailed response to Miss X at stage 1 and the time and trouble she has been put to in making her complaint.
• Reviews its complaints handling procedure to ensure it has systems in place to check it has responded to complaints received within the timescales laid down and agreed to.
50. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

51. I have completed my investigation. There was fault by the Council causing injustice. The action I recommend is a suitable remedy for the injustice caused in this case.

Back to top

Investigator's decision on behalf of the Ombudsman