Summary: Mr B complained that the Council delayed excessively in registering a planning application to regularise breaches of planning control on a site including Mr B’s property and had failed to take enforcement action over a number of years. We found the Council delayed excessively in progressing the current application. The Council has agreed to apologise to Mr B and pay him £150.

The complaint

1. Mr B complained that the Vale of White Horse District Council (the Council) delayed excessively in registering a planning application to regularise development of a site including Mr B’s property. Mr B also complained that the Council has failed to take any action against the breaches of planning control from the development carried out under a previous planning permission approved many years ago. The delays are so excessive Mr B is concerned the breaches will soon be immune from enforcement action and the residents will be left to bear the ongoing costs of the developer’s failings. He has been, and continues to be, caused significant distress and inconvenience from the situation.

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The Ombudsman’s role and powers

2. 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)
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. 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

5. I have only investigated the events from January 2023, the date the most recent application was submitted. There are no good reasons to investigate the earlier events, and I consider it was reasonable for Mr B to have complained to us about them sooner.

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How I considered this complaint

6. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
7. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Enforcement action

8. 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.
9. 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.
10. 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.
11. 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 60)

What happened

Background

12. Mr B lives on a development of houses built some years ago. The Council has been aware of several breaches of the original planning permission (mainly relating to drainage and landscaping) for the site for many years and has conducted several enforcement investigations. Some issues were resolved through minor amendment applications. But the Council refused a retrospective application to regularise the remaining breaches in 2018.
13. In 2019 the Council held discussions with the developer and agreed work to overcome the issues along with undertaking drainage tests on the site. The company then sold the site to new owners which held up progress.
14. In 2020 the Council held discussions with the new owners who agreed to progress the issues on site as a priority. The COVID19 pandemic added to the delay.
15. The drainage testing was completed in 2022.

New planning application submitted

16. The Council said it had in principle found a solution to the drainage issue without major disruption for residents. This led to the new owner submitting a planning application in January 2023 with the intention of addressing the outstanding issues.
17. Initially the Council validated the application. It then put the application back on hold requesting two documents from the applicant at the beginning of February 2023. The Council received the documents on 3 October 2023 and took the application off hold. Then on 6 November 2023 it put the application back on hold while further details were requested. It finally registered the application in October 2024 and sent it out for consultation.
18. It requested further information from the applicant in January 2025 which the applicant provided in April 2025. Discussions between the Council and the applicant are ongoing regarding the application. It will reconsult on the amended application in due course. The Council said it is preparing to serve a Breach of Conditions notice on the applicant by the end of July to ensure the breaches will not become immune from enforcement action.

Formal complaint

19. On 25 October 2024 Mr B made a formal complaint to the Council about the new application. He said only one retrospective application was allowed and this was the second and the Council had not kept him informed about the progress with the enforcement investigations.
20. The Council responded on 25 November 2024 apologising for the delays and the protracted nature of the case. It detailed all the breaches, how they had been resolved, and which would be resolved by the current application.
21. Mr B remained unhappy and escalated his complaint to stage two of the Council’s complaints procedure at the end of November 2024. The Council responded on 7 January 2025. It explained that its approach to enforcement was to work positively and constructively with anyone responsible for breaches of planning control to ensure they remedied the situation. Where the breaches are causing significant harm, the Council would seek reasonable remedial options.
22. The Council explained it was satisfied the current application was valid and could be progressed because the developer had not previously exhausted the opportunity to submit this particular type of application. It said it was aware of the time limits for enforcement action and would ensure action was taken to prevent the breaches becoming immune from enforcement. It said that until the foul water sewage system had been adopted it was the responsibility of the developer and any issues over maintenance should be raised directly with it. It explained that it had not been necessary to issue a planning contravention notice as it was aware of the issues on site, had ascertained there were breaches of planning control and the developer was taking action to remedy them.
23. Mr B complained to us. He says some flooding has occurred on the road and he has been caused significant distress and inconvenience by the delays and lack of information.
24. In its response to my enquiries the Council said it acknowledges that it should not have validated the current application.

Analysis

25. There have clearly been long delays in resolving the planning breaches on this site. I have considered the situation from January 2023 when the new developers submitted a planning application to regularise the remaining breaches. Government guidance recommends a proportionate response to breaches of planning control including informal action such as negotiation with developers and requesting a further planning application to regularise the breaches. I have not found fault with the Council for the principle of following the informal route in this case: the planning application will hopefully resolve the outstanding issues including the drainage system. I am unable to comment on the substance of the application as the Council has yet to make a decision on it.
26. However, I do consider the Council has taken an excessive amount of time to progress the application: it accepts it should not have validated the application initially and it appears a significant amount of information was incorrect or missing. I can see the applicant took many months to provide the information on each occasion, but I have not seen evidence of how often the Council chased the applicant up until January 2025, when it has exerted pressure to obtain information about the drainage system as built. The Council has still not received a valid application which accurately reflects the situation, over two years after the initial application was submitted.
27. The Council says it does not routinely update members of the public on enforcement investigations, however given the excessive delays in this case, I consider it should have provided more regular updates to Mr B. The failure to do so caused him frustration and time and trouble over an extended period of time.

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Action

28. In recognition of the injustice to Mr B, I recommend the Council within one month of the date of my final decision apologises to Mr B and pays him £150.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman