Summary: Mr X complained about the Council’s handling of his concerns regarding a development near his home which included the impact on private rights, common land, and planning decisions. He said as a result he and the public’s interests had been impacted and harmed. We found no fault in the processes the Council had followed to reach its views on the development or concerns raised by Mr X. It therefore reached decisions it was entitled to make. Mr X has the right to dispute the Council’s interpretation of the law and his private rights in a court.

The complaint

1. The complainant, Mr X, complained about the Council’s handling of his planning and enforcement concerns relating to a development which has planning approval near his home. His complaint included:
• it wrongly approved the developer’s variation application in Summer 2025 as a non-substantial amendment. He believes it should have been considered as a full planning application and it should not have been permitted due to the impact on common land, private rights, and restrictive covenants;
• it failed to properly consider commencement of the development, and pre-commencement conditions had not been discharged when development started. He said the development was unlawful as a result; and
• it failed to consider and take appropriate enforcement action against the developer and respond to his questions about this.
2. Mr X also complained the Council had failed to properly consider, respond, and action his concerns about the developer’s use of a private street and a public footpath for construction vehicles accessing the development.
3. Mr X said, as a result, he and the public experiences harm and impact on amenity, and his interest has not been protected.

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The Ombudsman’s role and powers

4. 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)
5. 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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. 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(1), as amended)

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What I have and have not investigated

8. I have considered Mr X’s complaint from November 2024 to June 2025 when the Council said it had provided its final response. I have also considered his additional complaint up to October 2025 when the Council provided its final response to Mr X.
9. I have not investigated any concerns Mr X may have about the matter before November 2024 including the grant of the planning permission. This is because this has already been considered in a previous investigation. Nor any new concerns he may have since October 2025 when the Council provided its final response.

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How I considered this complaint

10. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
11. Mr 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

Relevant law, guidance and policy

Planning permission

12. Councils should approve planning applications in line with their local development plan, unless material planning considerations suggest otherwise.
• Material planning considerations may include:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
13. Material planning considerations do not include:
• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.
14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.
15. Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using aerial photographs and other tools such as Google Streetview.

Amendments to planning permissions

16. Where planning permission is granted, developers sometimes find it necessary to make changes and sometimes this happens during the planning application process.
17. 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 under section 73 the Town and Country Planning Act 1990, but only if:
• it considers the procedural fairness of doing so. It should consider whether it might deprive any third party of the opportunity of making representations they might want to make; and
• the nature of the application remains the same, so the amended proposal is still substantially the same as the original.
18. 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.

Planning enforcement

19. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
20. 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.
21. 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.
22. 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 December 2024, paragraph 60)

Common land

23. Common land is land owned by one or more people but other have rights to use. Such land is registered and the rights to the use follow the land even if the land is sold or disposed of. The land may have restriction to the activities which can take place on the land.
24. A person may not, without consent from the Secretary of State, carry out certain works on common land which includes erecting fencing and constructing buildings.
25. Local Authorities can take enforcement action against unauthorised works in the county court. The Act allows any person to make an application to a county court to have the land restored to its previous condition.
26. The Commons Act 2006 says local authorities and other bodies who own common land must follow specific procedures to dispose of, sell or deregister common land. Consent to do so is normally required from the Secretary of State, and equivalent land in replacement land is usually required to be registered.

Highways and public footpaths

27. The Highways Act 1980 places a duty on Highway authorities to protect public rights of highways including public footpaths, and to prevent as far as possible the stopping up or obstruction of highways under their authority.
28. A Highway authority has the power to take legal proceeding and generally such steps as it deems expedient.
29. The Road Traffic Act 1988 makes vehicular use without lawful authority of a public footpath a criminal offence.

What happened

30. This section is intended to provide a brief summary of the events which occurred. It is not intended to be a detailed description of everything that happened.
31. In 2022 a developer was granted planning permission on appeal to the Planning Inspector for a number of houses on a plot of land near Mr X’s home. The development is next to a small stretch of common land, which was not impacted by the planning approval. It also relies on the use of a private street and may impact on private rights of Mr X and other nearby homeowners.
32. The development was subject to planning conditions. This included the timescales for the commencement of the development and pre-commencement conditions.
33. Mr X has raised concerns about the development and the developer’s ability to lawfully complete the development for several years. We have previously considered his complaints and found the Council had followed planning law and private rights are not material planning considerations. However, the Council should consider discharges of conditions of the development as and when these are relevant.
34. In late 2024 the developer submitted a variation application to the Council relating to the access of the development. This included using some common land owned by the Council. Mr X shared his objections about the proposal.
35. In spring 2024 Mr X told the Council the developer had started works on the development as some equipment and materials had been brought to the site. He said the Council should take enforcement action as the developer did not have rights to access the private street, to use the public footpath to access the development, or to use common Land. He also said some pre-commencement conditions had not yet been discharged.
36. The Council visited the site, considered information and pictures it had received, and responded to Mr X’s concerns. It found no breach had occurred as the works did not yet amount to commencement. It also set out its view on the use of the public footpath. It acknowledged such use could be a breach of the Road Traffic Act 1988. However, in this case several homes along the private street were using the public footpath for vehicular access to their properties, including Mr X who had rights to do so. It explained where such rights exist alongside a private street, it does not normally question access rights as these are historically poorly documented. It would therefore not do so in this case. It later said Mr X could report obstructions to the footpath to the police, if this occurred.
37. In Summer 2025 the Council approved the developer’s application as a non-material amendment under Section 73 of the Town & Country Planning Act 1990. In doing so, it considered the comments it had received and the developers need for common land consent. Its Highways and Public Rights of Way teams did not raise planning concerns about the proposal.
38. In July 2025 Mr X told the Council that the developer had arranged for fencing, trenches and some other works to the site. He also said common land has been used or trespassed. The Council inspected but did not find common land has been impacted, it warned the developer not to do so.
39. The three-year deadline for the developer to start the development as set out in the planning permission expired in July 2025.
40. Two days later the Council approved a pre-commencement condition application from the developer.
41. Mr X has in past and throughout 2025 sent the Council a large amount of correspondence. He has shared his views of the development, raised complaints and concerns about the inability for the developer to complete the development without interfering with private rights, the impact on common land, and what he feels the Council should do.
42. The Council has provided several and detailed responses to Mr X through 2025. This included its planning, Highways, and Public Rights of Way teams. Below are the key point of Mr X’s request and complaint, and the Council’s responses;
• ensure the developer obtained relevant common land consent, and if the Council were to sell its land to developer to take enforcement action if consent was not obtained. He said the Council should ensure this happened before the development started;

The Council has repeatedly explained this is not a planning concern, but a separate process which the developer must follow. However, it has found no works has taken place on common land as yet. It explained it was for the developer to approach the Council to purchase the common land, but it will continue to monitor if any breaches takes place.

• protect private rights for existing and prospective owners and neighbours;

The Council has explained such rights are no relevant planning considerations.

• protect public rights relating to a public footpath as the developer had to access the site by crossing it for which he had no rights. Mr X asked it to take action against the developer when the path was used by construction vehicles either through action by its planning enforcement, Highways, or Public Rights of Way;

The Council had shared its view on the use of the public footpath with Mr X and it had decided not to take action for such use from the developer or other individuals in the past. However, if an obstruction occurred Mr X could bring this to the police’s attention. It also said if damage to the public footpath occurred he could report this to the Council.

• Ensure the development met certain standards including the specifications of the road and were completed in line with approved plans and conditions as set out by the planning inspector;

The Council explained it had and would consider discharge of condition applications as and when these were relevant. However, the developer was entitled to make a variation application which impacted one condition which had therefore not been discharged as it was no longer relevant. It acknowledged Mr X disagreed with some discharge decisions, but these were acceptable to the Council and made through professional judgement.

• he wanted the Council to refuse the variation application. Once this was approved by the Council, he said it had wrongly done so through an incorrect process. He also said the approval now wrongly authorises development over common land and impacted private rights;

The Council disagreed with Mr X. It explained it had found the amendment to be non-material and its consideration under section 73 of the Town and Country Planning Act 1990 was appropriate and properly considered. It also explained the impact on common land would not prevent the grant of the application. This was because a separate process should be followed by the developer to obtain the necessary rights to use and carry out works on or over the common land.

• confirm the development had time lapsed as the developer had not commenced works by the three-year deadline. This was because a pre-commencement condition was discharged shortly after the deadline, and a pre-commencement condition was not yet discharged. He said any works that had taken place was therefore unlawful;

The Council told Mr X it had found the developer had commenced works prior to the three-year deadline and had sought legal advice. It acknowledged Mr X disagreed, but it would consider further. It responded to this point a few months later, where it again confirmed its view the developer had commenced by the deadline, even though two pre-commencement conditions had not been discharged at the time and set out its reasons.

43. Mr X brought his complaint to the Ombudsman’s attention in Summer 2025. He has since continued to provide information and additions to his complaint. He remains of the view the Council has failed to take enforcement action against the developer for the works which has taken place, to stop the use of the public footpath, and ensure private rights and common land is protected.
44. Mr X has since made a new complaint to the Council about lack of transparency in its enforcement process and its lack of response to his freedom of information request. These are new matters and have not been considered in my investigation.

Analysis and findings

45. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
46. Planning enforcement is a discretionary power held by local authorities. It is for those authorities’ officers to make decisions on whether to use their powers. National government guidance advises authorities to use enforcement as a last resort and only where they consider it warranted by an identified planning breach.
47. Various teams in the Council have been involved in the determination of the planning application for the homes near Mr X. Including, the variation application and to respond to Mr X’s concerns, questions, and complaints.
48. I have not found evidence of fault in the process the Council followed to reach its decisions on Mr X’s complaints, nor its view no planning enforcement action should or could be taken at the time. In reaching my view I was conscious;
• the Council had been clear Mr X’s, or others, private rights were not a planning consideration it could consider. Such issues a civil matter between the parties.
• the Council considered Mr X’s requests for enforcement action against the developer relating to conducting works prior to pre-commencement conditions having been discharged, after the discharge of some conditions, and when a condition had still not been discharged. It found no enforcement should be taken as it was not satisfied a breach of planning control had occurred;
• the Council acknowledged the developer required consent to complete works on common land owned by the Council. However, it was not satisfied such works had taken place, and therefore no breach had occurred. This was a decision it was entitled to make. It also correctly explained it was for the developer to approach the Council to purchase the common land necessary for the development to be completed, and it fully intended to follow the set procedure under the Commons Act 2006. The Council has confirmed if there later is an identified breach by the developer, it will decide what action to take;
• Mr X and the Council disagrees about whether the developer’s application to amend a condition relating to the original planning permission should have been considered under section 73 of the Town and Country Planning Act 1990. I can only consider the process the Council followed to reach its view, which was in line with the required process as it had regard to the view and comments it received, and it reached its view the amendment was non-material. It was not bound by the Planning Inspector’s decision. This was therefore a decision it was entitled to make. Mr X disagrees with the Council’s interpretation of the law. In such cases only a court can decide whether Mr X or the Council is correct;
• Mr X disputes the Council’s finding the development did commence before the three-year time limit expired. The evidence shows the Council has considered his views. Whether a development has commenced is a matter of fact and degree, and it explained its view why it was satisfied development had commenced. This included the pre-commencement condition which has not been discharged is not relevant following the approval of the non-material amendment. As I have not found fault in the process the Council followed to reach its view, I cannot criticise its decision; and
• any concerns Mr X has about the Council’s lack of enforcement action against the development for being unlawful due to timelapse or the approval of the non-material amendments are therefore not something I can consider further.
49. I also note the Council’s ability to respond to and consider Mr X’s concerns have been challenging given the way he has presented and continued to report issues he disagrees with throughout 2025 and previously. I found it had explained its views, decisions, and reasons for not taking enforcement action, and responded to his complaints as I would expect. The fact Mr X did not agree with its views or reasons, did not mean it should continue to respond or explain its view on the same matters.
50. If Mr X believes the developer has since October 2025 breached planning control or started works on the common land without the necessary consent. He can bring such concerns to the Council’s attention. However, I would not expect the Council to respond to matters it has already addressed or found it will not take any action against.

Public footpath

51. Mr X has for most of 2025 wanted the Council to take action against the developer for the use of the public footpath. This is due to construction vehicles accessing the development by crossing the footpath.
52. The Council’s Public Rights of Way and Highways teams considered Mr X’s concerns. They confirmed the vehicular use of a public footpath is normally unlawful. However, in this case several properties have rights to use the public footpath which adjoins a private street, and those rights are historically poorly recorded. It had decided it would not take action against the use. However, if there were damage or obstructions caused by the developer it may get involved.
53. I found the Council has considered its duty to protect the public’s rights to the footpath. It subsequently reached its view any action was not expedient. This was a decision it was entitled to make.
54. In addition, the Council has informed Mr X the use of a public footpath may also be a criminal offence which he can report to the police. However, it is aware the police have also decided not to take action against previous report of such contraventions in the past.

Private Action

55. Mr X, and other nearby neighbours, have the right to take private legal action against the developer against any impact the development may have on their private rights which includes restrictive covenants. Such issues are not for the Council or the Ombudsman to consider.
56. In addition, Mr X has the right to bring his concerns about use or works to common land to a court’s attention, should he decide to do so, in light of the Council’s decision not to take any action.

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Decision

57. I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman