Summary: Mr and Mrs X complained the Council failed to properly consult residents on a new development and later changes to the plans. They also complained the Council failed to properly oversee the work at the development site, failed to properly consider flood risk, and failed to act on breaches of planning control. This affected Mr and Mrs X’s privacy and amenity, causing them distress. We ended our investigation. We did not see evidence of significant fault by the Council, and we could not add to the Council’s investigation or achieve the outcome Mr and Mrs X wanted.

The complaint

1. Mr and Mrs X complained the Council failed to properly consult residents on a new development and later changes to plans. They also complained the Council failed to properly oversee the work at the development site, failed to properly consider flood risk, and failed to act on breaches of planning control.
2. Mr and Mrs X said they suffered a loss of privacy from the development, and motorists accessing the site use a private lane without permission. Mr and Mrs X have suffered flooding to their home, and the development site attracts vermin. They are also concerned about lost access to their gas mains. This has caused Mr and Mrs X distress.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. As part of the investigation, I considered the complaint and the information Mr and Mrs X provided.
5. I also considered the Council’s complaint response along with relevant law and guidance.
6. Mr and Mrs X and the Council 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

Planning permission

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations suggest they should not.
8. Planning considerations include things like access to the highway, protection of heritage assets, and impact on neighbouring amenity. It does not include things like views from a property, impact on property value, and private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms.

Non-Material Amendments

10. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
11. If the Council decides the changes are ‘material’, it may require the whole or part of the process begins again with a fresh application. However, if the changes are considered ‘non-material’ the Council may allow changes without re-starting the process.
12. This type of amendment is known as a non-material amendment. There is no statutory definition of what is or is not a non-material amendment. The question is one of fact and degree and a matter for the Council to decide.

Enforcement

13. 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.
14. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
15. 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.

Land drainage and planning

16. The impact development might have on land drainage can be a material planning consideration. If land drainage is raised in an objection letter to a planning application, and they are an important planning consideration, we would expect to see evidence to show the Council had taken the issue into account before it made its decision. Without some evidence to show the Council considered the issue, we cannot know whether it has exercised its discretion properly.
17. However, even if we find fault in a failure to consider drainage issues during the planning process, it does not mean we will expect the Council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to pay compensation caused by the acts or omissions of private individuals. Remedies for these matters are available in the civil courts and tribunals.

What happened

18. I have summarised below some key events leading to Mr and Mrs X’s complaint. This is not intended to be a detailed account of what took place.
19. A developer received outline planning permission to develop land near Mr X’s home. However, this application did not go any further.
20. A new developer later applied for full planning permission for the site. This application included flood risk assessments, storm calculations, a drainage strategy, an air quality assessment, a noise assessment, a transport assessment, and traffic surveys.
21. Residents, including Mr and Mrs X, objected to the plans.
22. The planning committee granted planning permission, subject to conditions.
23. Mr and Mrs X complained to the Council after the developer started building work. The Council investigated their complaint at stages one and two of its complaint process. The Council did not uphold the complaint. It explained the actions it took, and the actions of the developer. It said it could not take further planning enforcement action, and the rest of Mr and Mrs X’s complaints related to private civil matters.

Analysis

24. Mr and Mrs X wanted the Ombudsman to investigate further, as they did not agree with the Council’s findings. They wanted more enforcement action, further action to stop motorists using the private lane, and action over loss of their privacy.
25. I decided to discontinue my investigation because I did not see evidence of significant fault by the Council, or of significant injustice arising from any actions, or inaction, by the Council. I do not consider we could add to the Council’s investigation or achieve the outcome Mr and Mrs X want.
26. I found the Council suitably addressed Mr and Mrs X’s complaint. It explained how it responded to the issues raised, through investigation or by liaising with the developer.
27. I reviewed the relevant planning application documents online. The Council consulted many residents, including Mr and Mrs X, and they made objections. The case officer assessed the objections in their report to the planning committee and considered the impact on neighbours. Residents then had the chance to raise concerns to the planning committee in person, and at community meetings about the development site after the Council granted planning permission.
28. I am also satisfied the application included the relevant reports and assessments on issues such as traffic and highways, flood risk and drainage, and air quality and noise. The relevant officers considered these reports and offered comments before planning permission was granted, or before planning conditions were discharged.
29. Lighting surveys were also included in the application. The Council said there is no unacceptable impact on neighbours. It secured a cowl for a street light near Mr and Mrs X’s home, so there is no continuing injustice.
30. I did not see evidence the Council failed to consult or communicate with residents where it had a duty to do so, or that it failed to consider the impact on neighbours. The Council does not have a duty to routinely consult the public on all amendment applications or applications to discharge planning conditions. It depends on the circumstances and the potential impact.
31. The Council identified a breach of planning control and ensured corrective action by the developer, in planting a new hedgerow. The planning breach itself was not the fault of the Council. Councils have a duty to respond to reports of planning breaches, but enforcement action is discretionary. The Council will act according to its enforcement policy and resources. The Council is not under a duty to actively monitor or police all development sites in its local area. It relies on reports from the public.
32. The Council considered Mr and Mrs X’s report about encroachment after a hedgerow was removed, and about the works possibly obstructing a gas main. After assessing photographs and plans, and measuring the boundary, it found no breach. It also referred to a recent survey showing the gas main is not obstructed, and said any dispute was a civil matter.
33. Other matters raised by Mr and Mrs X relate to private civil rights or are not covered by planning. Nevertheless, the Council still tried to help by liaising with the developer or investigating where it could.
34. Mr and Mrs X later raised a new issue about stairs added to a public right of way, which the Council had been unaware of. This matter needs to be investigated by the Council first.
35. I appreciate Mr and Mrs X disagree with the Council’s findings, but I consider the Council has properly addressed their complaint. There is no obvious evidence of fault, and it is unlikely we could add to what the Council has already said.

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Final decision

36. I ended my investigation. I did not see evidence of significant fault by the Council, and we could not add to the Council’s investigation or achieve the outcome Mr and Mrs X wanted.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman