Summary: Mr X complained about how the Council decided on planning applications at a neighbouring property and how it investigated alleged breaches of planning control. Mr X says this has led to a detrimental impact on his own property. We find the Council at fault for delays in its investigation of the alleged breaches of planning control. The Council has agreed to apologise and make a payment to reflect the injustice to Mr X.

The complaint

1. Mr X complains about the length of time it took the Council to decide a planning application at a neighbouring property and for failing to respond to his complaint about this. Mr X also complains about the way the Council investigated and responded to his complaints about breaches of planning control at the development. Mr X says these breaches have had a detrimental impact on his property and the character of the road, as well as increasing the risk of flooding.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
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. We cannot investigate complaints about events that took place more than 12 months before a complainant approached the Ombudsman. We can only exercise discretion to look back further if there are good reasons to do so.
7. Mr X brought his complaint to the Ombudsman in May 2024. Any aspect of Mr X’s complaint that relates to events that took place before May 2023 have been raised late.
8. Some of the planning decisions Mr X refers to were made prior to May 2023 and I have seen no good reason to exercise discretion to look back further than this. I have not considered any decisions the Council made on planning applications at the property in question before May 2023.
9. The alleged breaches of planning control were reported to the Council as far back as 2019. However, the Council did not close its enforcement file until February 2024. It is reasonable to say Mr X would not have known he had cause to complain until then and so, in terms of the Council’s enforcement investigations, I have exercised discretion to investigate from the reports in 2019.
10. I have investigated up to the point Mr X contacted the Ombudsman in May 2024.

Back to top

How I considered this complaint

11. I considered all the information Mr X provided about his complaint. I also considered all the information the Council provided.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and policy

13. Where planning permission is required, a council must decide on planning applications in accordance with its development plan unless material considerations indicate otherwise.
14. 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 loss of light, traffic generation and noise.
15. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission unless it is founded on valid material planning reasons.
16. Government statements of planning policy are material considerations.
17. General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities).
18. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.
19. The Town and Country Planning Act 1990 defines breaches of planning control 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.
20. 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.
21. The National Planning Policy Framework sets out the government’s planning policies for England and how to apply these.
22. The Framework says effective enforcement is important to maintain 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.
23. The Council publishes information about planning enforcement on its website. This says:
• The Council initially attempts to resolve breaches through negotiation and giving landowners a reasonable opportunity to right the situation. If negotiation fails, it will then consider if formal action is needed. The Council’s power to take formal enforcement action is discretionary and it will only use this if it can demonstrate that the breach causes serious harm to public services.
• Where a breach of planning control is identified, usually the Council will give owners of the property an opportunity to put the situation right and advise them what steps are needed to do this. If it identifies a development may have been considered acceptable in planning terms, the landowner may be given an opportunity to submit an application.
• The Council can serve an enforcement notice if something requiring permission has been built before permission is granted. This is an instruction to put things back how they were before work started. The Council will take this action if the work done is not acceptable, is harmful to the environment, or if the work is not in the public interest.

What happened

24. I have summarised below some key events leading to Mr X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
25. The Council had approved planning permission for a development at a neighbouring property to Mr X’s home.
26. In October 2019, the Council received a complaint about alleged breaches of planning permission. The Council visited the site and discussed the alleged breaches with the project manager, reminding them to set the development up in accordance with the approved plans. It then wrote to the complainant to explain why it believed no breach had occurred at that point.
27. In November 2019, the Council received further complaints about alleged breaches of planning permission, including collapsed hoardings and a lack of relevant tree protection measures. The Council asked the developer to replace the collapsed hoarding and carried out two further site visits but found no evidence of breaches of planning permission.
28. The Council carried out two further site visits in January 2020 but found no evidence of any breaches of planning permission.
29. The Council then received further complaints about alleged breaches of planning permission regarding a concrete slab base and insufficient site security. The Council carried out another two site visits. The Council found no unauthorised work had taken place but agreed there was insufficient site security and asked the developer to improve this.
30. In February 2020, the Council received another complaint about an alleged breach of planning permission, relating to scaffolding and storage of fence panels. The Council visited the site but found no breaches of planning permission.
31. In March 2020, the Council received another complaint about and alleged breach. An enforcement officer visited the site again but found no planning breaches.
32. The site shut during the Covid 19 pandemic, but in June 2020 the Council visited the site to assess the work that had been completed and to take measurements. The Council found the work to be in accordance with the approved plans and did not identify any planning breaches.
33. The Council visited the site again in September 2020. It then asked the developer to stop work to complete an independent site survey and confirm the drainage was as approved. On receipt of the independent site survey, the Council allowed work to resume.
34. In November 2020 the Council received a complaint about goods storage. It asked the developer to address this and move any items that needed to be moved. It then visited the site and found no breaches.
35. The developer submitted a new application to the Council for a variation of the planning permission they had been granted and the Council issued consultation letters to the relevant neighbours. However, it received a legal challenge to a similar application and this application was delayed while it awaited the outcome.
36. The Council received another complaint in June 2021, questioning the location of the development and the external finish. The Council visited the site to take photographs and measurements but found no breaches.
37. The Council visited the site again in March 2022. It noted building work was progressing, albeit slowly, but did not identify any breaches of planning permission.
38. During a site visit in April 2022, the Council noted tree protection had been removed. It asked the developer to replace this but noted there was no damage to the relevant trees. The Council was then satisfied no breach had occurred.
39. In July 2022 the Council received another complaint. It explained at that point it was awaiting legal advice in relation to its enforcement investigation and the planning application it was considering.
40. In September 2022, the Council received further complaints about alleged breaches of planning control. It explained it considered part of this work to be lawful, and other parts to be only minor changes to the approved plans.
41. The Council visited the site again in November 2022. The Council identified some deviations from the approved plans but found these were not significant enough to warrant enforcement action.
42. The Council then reviewed all the information it had received in relation to the new application and decided it would need to complete a new consultation.
43. Mr X made submissions on the application directly to the Council. Mr X said the plans would have a detrimental impact on trees, cause a loss of light to his property, result in increased noise, were not in keeping with the area and would have a negative impact on traffic.
44. The Council visited the site and asked for additional evidence from the developer.
45. The Council’s planning case officer’s report on the application outlines the relevant local plan and policies and sets out the officer’s view of material considerations. The Council followed the recommendation in the report to approve the application.
46. Following an internal discussion with senior planning officers, the Council decided to close its enforcement file in February 2024 as it felt only minor breaches existed and it would not be expedient to pursue an enforcement case on these. However, the Council failed to notify Mr X of this decision.
47. Mr X complained to the Council as he said its decision to grant planning permission was fundamentally unsound. Mr X also said significant breaches of planning permission had occurred, but the Council’s enforcement investigation had failed to address these and had been disorganised and ineffective.
48. The Council responded to Mr X’s complaint to explain the planning application had been considered and thoroughly assessed. The Council said it had followed the right process and considered all representations received before making a decision and the only way to challenge this would be through a judicial review.
49. In response to a separate complaint about its enforcement process, we found the Council at fault. The Council agreed to review its case management process for its planning enforcement services, ensuring it has sufficient alerts after periods of inactivity, and sufficient management oversight of case progression.

Analysis

50. The Ombudsman is not a planning authority and cannot determine whether a breach of planning control has occurred and, if so, what action should be taken to resolve the breach. Instead, we investigate how the Council has considered matters and whether it has acted in accordance with the law, guidance and its own enforcement objectives.
51. Mr X has said the Council ought to revoke planning permission and reconsider a full planning application. It is not for the Ombudsman to say what action the Council should take so I do not find fault here.
52. That said, we expect councils to carry out thorough investigations into enforcement complaints and consider the full range of enforcement options open to them. Even if a council decides not to take enforcement action, we expect it to record its reasons and explain its decisions to any complainants. We would expect the council to do so without unnecessary delay.
53. After the Council received complaints about alleged breaches of planning permission, it visited the site to consider these. Largely the notes show the Council did not identify any breaches but worked with the developer to ensure they did not deviate from the original plans. Where the Council did identify breaches, the records show it decided these were not so significant as to warrant enforcement action. I find no fault with the action the Council took here as it assessed the situation and entered negotiation with the developer in line with its usual process.
54. However, throughout the timeline I have investigated, there were periods of months where the Council failed to update Mr X. The Council also failed to notify Mr X of its decision to close its enforcement file. This is fault and caused Mr X significant uncertainty which is injustice.
55. From the information I have seen, there are a number of reasons for the delays, including legal consultations, slow progress of the building work, and the Covid 19 pandemic closing the site for a period of time. On top of this, multiple allegations of breaches of planning permission were received throughout the period I have investigated and had to be considered on their own merits.
56. I appreciate enforcement complaints such as these, being complex in nature and unpredictable, can take time and some aspects of the delay were beyond the Council’s control. However, the records show long gaps in activity which allowed this case to drift. As a result, it took the Council around five years from the first complaint up to the point it completely closed its enforcement complaint. This is a significant delay and amounts to fault. This caused considerable uncertainty and distress for Mr X, which is injustice.
57. In response to a separate case, the Council has already agreed to take action to prevent a recurrence of the faults identified in Mr X’s case. While this does not address the personal injustice to Mr X, I am satisfied the Council has already acted to improve its service going forward.
58. Our role is not to consider whether a planning application should have been approved or not. We look at whether there was fault in how a council made its decision. If we decide there was no fault in its decision-making process, we cannot ask whether the Council should have made a particular decision or say it should have reached a different outcome. We cannot uphold a complaint simply because a person disagrees with a council’s decision.
59. The case officer’s report for the application I have considered shows they considered and applied relevant policy as well as considering the objections received. The report found the amendments in the application were acceptable and there was no breach of planning permission in terms of drainage. The Council then accepted the recommendation to approve this application. I do not find fault with the process the case officer followed when making their recommendation to approve the application.

Back to top

Agreed action

60. To remedy the injustice set out above, the Council has agreed to carry out the following actions within one month:
• Provide a written apology to Mr X for the delays identified in the planning enforcement investigation, for the lack of communication, and for failing to notify him of the decision to close the enforcement file. 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.; and
• Pay Mr X £500 to recognise the avoidable uncertainty, distress and frustration caused by the delays and the failure to notify him of the decision to close the enforcement file.
61. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

62. I find the Council at fault for delays in its enforcement investigation and for not keeping Mr X updated throughout. The Council has agreed to the recommendations set out above and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman