found fault with the Council failing to advise Mr X of closure of two of his enforcement cases. While this was fault, we did not consider this caused Mr X a significant personal injustice.
The complaint
Mr X complained the Council failed to follow procedures about his planning enforcement cases in relation to a neighbouring site since January 2020.
What I have investigated I have investigated Mr X’s complaint about the Council’s enforcement investigation.
I have not investigated Mr X's complaint about the planning application itself. I have explained my reasons in the section titled “Parts of the complaint that I did not investigate”.
The Ombudsman’s role and powers
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) 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Mr X provided comments on my draft decision. I considered Mr X’s comments before making my final decision.
What I found
The Law Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
Councils can take enforcement action if they find a developer has breached planning rules. However, councils do not have to take enforcement action just because there has been a breach of planning control.
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 2012, paragraph 207) Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost-effective way of achieving a satisfactory result. The Council should keep a record of any informal action, including a decision not to take further action.
The National Planning Policy Framework also notes that Council’ should try to avoid taking formal enforcement action if there is only a trivial or technical breach of planning controls. These breaches should cause no material harm or adverse impact on the amenity of the surrounding area.
Local enforcement plan and procedure The Council has a statutory duty to investigate breaches of planning control and conditions attached to planning consents.
The Council says it will investigate a breach of planning control when a member of the public tells it of a potential breach.
The Council prioritises breaches of planning control into High and Low categories. The Council will apply a Low priority to cases where an unauthorised development has a relatively limited impact on the amenity of residents.
The Council says it will confirm with the person complaining in three working days whether it will or will not be investigating the reported breach.
The Council says it will tell the person complaining of the conclusion to an enforcement investigation and tell the person whether the Council intends to take further action. The Council says it will usually do this no later than 28 working days in straightforward cases but some enquiries may take longer.
The Council says it will, where possible, try to resolve any breaches through negotiation and working with the developer. But, if the Council will consider on a case by case basis whether it is expedient to take further action over a planning control breach.
The Council says that if it finds a breach but judges there is no significant harm caused by the development, the developer has the choice to apply for a retrospective planning application.
If the Council finds no material breach of planning control it will end its investigation into a matter.
What happened In August 2016, Mr X’s neighbours, Mr A, submitted a planning application for construction of a two-storey building.
The Council refused the planning application in November 2016.
Mr A appealed the Council’s planning decision. The Planning Inspectorate granted the appeal in May 2017. The Planning Inspectorate granted the planning application subject to conditions that: The development shall begin no later than 3 years from the date of the decision.
Mr A completes the build in line with the plans submitted.
Mr A does not start any development until he completes an archaeological assessment and provides this to the Council.
Mr A does not start any development until he submits a construction method statement to the Council covering details relating to installation of hoardings, control of dust measures and working times on the site.
Mr A does not carry out development above foundation levels until he submits details of external materials to the Council.
Mr A does not carry out development above foundation levels until he submits detailed of external doors and windows.
Before first occupation the ground and first floor windows in the north-eastern elevation must be obscured and approved.
Before first occupation Mr A must develop and put in place refuse and cycle storage facilities.
In December 2017, Mr A submitted a non-material amendment to the previous planning application This non-material amendment proposed to alter the size of the rear dormer.
In January 2018, the Council approved the non-material amendment.
On 26 May 2020, Mr X complained to the Council about a breach of planning conditions at the site. Mr X complained about dust, noise and hours of operation of the site.
The Council noted that it had not received the construction method statement as required in line with planning condition 4 and opened an enforcement case accordingly.
The Council spoke with Mr A and completed a site visit. The Council Officer noted that Mr A had already put in place some mitigation measures for dust and noise but he had failed to submit the construction method statement to the Council for approval.
Mr A submitted a construction method statement on 10 June 2020. The Council wrote to Mr X to advise it had received the construction method statement but had not yet approved it. The Council detailed how it had told Mr A to put further dust mitigation measures in place.
Mr X continued to liaise with the Council about issues with dust at the site. The Council completed a further site visit on 24 June 2020 before approving the construction method statement on 30 June 2020. The Council did not write to Mr X to confirm closure of the enforcement matter.
On 11 September 2020, Mr X complained to the Council that: The Council granted the planning permission for the development.
He had reported dust nuisance from the site to the Council in May 2020 but it had failed to act. Mr X said he continued to experience issues with dust from the site.
The Council only authorised the construction method statement months after construction on the site started.
The site caused excess noise including keeping the radio on all day.
The window overlooking his property had so far been changed twice by the developers without planning permission.
The Council issued its Stage 1 complaint response to Mr X on 25 September 2020. The Council said it investigated Mr X’s concerns about the lack of the construction method statement. Following this investigation Mr A submitted the construction method statement and it ensured the site was operating in line with this statement for dust control measures. The Council advised Mr X to report noise and dust nuisance issues to its Environmental Health department and said it would look into Mr X’s concerns about the windows.
The Council completed a site visit and confirmed Mr A had installed the relevant measures for dust control in line with the construction method statement. The Council also confirmed with Mr A that construction only took place within the allowed times. And, the Council checked the windows installed met the approved plans from the planning application.
Mr X responded to the Stage 1 complaint response on 28 October 2020. Mr X reiterated his concerns about the original planning application. Mr X said the dust issues were not a matter for the Environmental Health department but for the planning department because of the planning conditions. Mr X also reiterated his concerns about the use of the radio.
The Council provided its Stage 2 complaint response to Mr X. The Council responded to Mr X’s concerns about the planning application and reiterated its position that the issues with dust and noise nuisance were for its Environmental Health department.
Mr X contacted the Council on 21 July 2021 to advise he had not heard from the Council about his previous enforcement matter from September 2020. Mr X said that following his previous complaint Mr A had removed the dormer windows and installed full height French doors with a roof terrace.
The Council completed a site visit on 28 July 2021 and found Mr A had installed full-length doors in contradiction to the approved plans in the planning application.
The Council wrote to Mr A on 30 July 2021 and advised he had installed full-length doors, a balcony and a flume which had not been approved by the planning application. The Council advised Mr A to either remove these installations or submit a retrospective planning application in the next 30 days. The Council told Mr X about the site visit and their contact with Mr A.
On 18 August 2021, Mr A submitted a retrospective planning application for the full-length doors, terrace and flume.
The Council approved the retrospective planning application on 4 October 2021. The Council told Mr X about granting the planning application on 12 October 2021 and confirmed it had now closed his enforcement matter.
Analysis When Mr X first complained to the Council about a breach of planning controls at Mr A’s site, it accepted the case and confirmed it had not received the construction method statement.
The Council’s policy says it will only investigate a breach of planning controls when a member of the public tells it of a potential breach. The Council has noted in its enforcement investigation that it was not aware that Mr A had begun construction works before Mr X’s contact on 26 May 2020. Since the Council was unaware that Mr A had begun construction, it would have not been aware that Mr A had failed to follow the construction method statement planning condition. I cannot find fault with the Council in these circumstances.
Following opening of the enforcement matter, the Council completed a site visit. The Council confirmed Mr X had put in place some dust mitigation measures. However, the Council determined these dust mitigation measures were inadequate.
The Council’s policy says it will, where possible, try to resolve any breaches through negotiation. The Council followed its policy by engaging with Mr A and asking him to provide the construction method statement and asking him to improve the dust mitigation measures.
In response to the Council’s request, Mr A submitted the construction method statement, which the Council approved, and improved the dust mitigation measures.
The Council has followed its policy to ensure compliance with the planning conditions through negotiation with Mr A. I do not find fault with the Council’s approach to addressing Mr X’s concerns about a breach of planning controls.
While the Council took suitable steps to investigate Mr X’s concerns it failed to tell him about the conclusion of the enforcement matter. This was fault.
When Mr X complained to the Council in September 2020, the Council opened a new enforcement matter to investigate Mr X’s concerns. The Council completed a further site visit and confirmed Mr A had installed dust mitigation measures in line with the construction method statement. The Council also ensured the site only operated during allowed times and confirmed the windows installed fell in line with the approved plans.
The Council took suitable steps to investigate Mr X’s concerns and I do not find fault. The Council also correctly directed Mr X to its Environmental Health department to raise concerns about noise and dust nuisance.
While the Council has suitably investigated Mr X’s concerns and responded to Mr X’s complaint, it again failed to tell him about the conclusion of the further enforcement matter. This was fault.
While the Council was at fault for failing to tell Mr X about the conclusions of the May 2020 and September 2020 enforcement matters, this did not cause a significant personal injustice to Mr X.
The reason for this is the Council ensured Mr A had provided the construction method statement and put the relevant dust mitigation measures in place following the May 2020 investigation. This resolved any injustice the Council could address through its planning enforcement team. And, the Council found no issues with the site during its site visit for the September 2020 enforcement matter meaning there was no injustice for Mr X to experience at this time.
When Mr X contacted the Council for a third time about the site in July 2021, the Council opened a third enforcement matter. The Council completed a site visit and found Mr A had breached planning conditions by installing full-length doors, a terrace and a flume which the Council had not authorised through the planning application.
The Council’s policy says that where it finds a breach of planning conditions or controls which it considers does not cause a significant harm it can ask the developer to submit a retrospective planning application.
Within seven working days of Mr X raising his concerns, the Council had completed a site visit and asked Mr A to either remove the installation or submit a retrospective planning application. The Council also told Mr X about its contact with Mr A.
The Council has acted in an expedient manner to address Mr X’s concerns and followed its policy.
Since Mr A chose to submit a retrospective planning application, the Council’s enforcement team did not need to take further action until the planning application was decided. When the Council approved the retrospective planning application, the Council’s enforcement team told Mr X this resolved the enforcement matter and confirmed its closure of the case.
The Council acted correctly in monitoring the planning application and confirming closure of the case with Mr X; I do not find fault.
Final decision
I have completed my investigation as the fault by the Council did not lead to a significant injustice to Mr X.
Parts of the complaint that I did not investigate I did not investigate Mr X’s complaint about the Council’s handling of the planning application. This is because the Council made its planning decisions in November 2016 and January 2018 and Mr X only brought this matter to the Ombudsman in October 2021.
The Ombudsman cannot investigate late complaints unless there is a good reason to do so. In this case, there is no good reason to exercise discretion to investigate the planning application matters which occurred more than 12 months before Mr X approached our service.
The decision of the planning inspectorate, made in May 2017, is also out of jurisdiction of the Ombudsman regardless of time.
Investigator's decision on behalf of the Ombudsman