The Ombudsman's final decision
Summary: Mr B complains about the Council’s response to his reports of breaches of planning control. Mr B says he suffered from construction disturbance, damage to nearby footpaths and a lack of landscaping. We have found fault by the Council but consider the action it has already taken of providing an outcome to Mr B and an apology for delay provides a suitable remedy.
The complaint
The complainant, whom I shall refer to as Mr B, complains the Council failed to properly respond and take appropriate action in response to his reports of breaches of planning control at a nearby development site.
Mr B says because of the Council's fault, he suffered from construction disturbance outside permitted hours for longer than necessary, damage to nearby footpaths and a lack of landscaping.
The Ombudsman’s role and powers
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 cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (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 read the papers provided by Mr B and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr B. I have explained my draft decision to Mr B and the Council and provided an opportunity for comment.
What I found
Background and legislation Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.
Section171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined 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.
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. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers. 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 July 2021, paragraph 59) Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by: long working hours on construction sites; nuisance from noise, dust, smoke and vibration; and traffic from construction vehicles.
While construction management conditions may help lessen the harmful impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
Key events Mr B contacted the Council in early January 2020 to report breaches of planning control including work outside of permitted working hours and the failure to provide trees to protect his privacy. Mr B also raised issues with how long the development was taking, the conduct of construction workers and damage to verges.
The Council visited the site in February and discussed the issues raised with the developer. The Council noted the development was complete and there was no ongoing construction and so no breach of permitted hours or other construction related issues could be witnessed.
The Council says the approved landscaping plan showed three trees to be planted in the rear gardens of two plots near Mr B’s property and these had been provided. The Council has provided a copy of the photographs from the site visit with a copy of the approved plan.
The Council concluded there was no breach of planning control but did not advise Mr B of this outcome. This is fault.
The Council advised the Ombudsman in December 2021 that it would now write to Mr B to confirm the outcome.
The Council visited the site again in March 2022 to reconfirm the required three trees had been planted.
The Council wrote to Mr B at the end of March to confirm the outcome of his enforcement report as set out above and apologised for the significant delay in doing so. The Council also acknowledged Mr B had expected more significant screening to be provided but explained it had not considered this could be reasonably required given the separation distances involved.
It is disappointing there was a further delay in advising Mr B of the outcome of his enforcement report after the Ombudsman’s involvement. This is further fault.
The Council says there is no evidence Mr B was advised trees would be planted to screen his property and the separation distance to the new development would not require such screening. The case officer’s report for the relevant reserved matters application states the proposal included “Additional landscaping is also proposed along the boundary” with Mr B’s property. It is understandable why Mr B may have expected more landscaping from this wording although I note the approved plans provided the specific detail.
The Council has confirmed it did not receive any other reports from Mr B or other residents about breaches of planning control during this period.
My consideration I should explain that councils have no duty to monitor development. They are dependent on members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate. We cannot investigate the actions of the developer only the response of the Council to Mr B’s reports. Councils have power to enforce but they have no duty to do so. Moreover, if a council decides that enforcement action is appropriate, it is obliged to follow government guidance which says that any action it takes should be proportionate and commensurate with the breach of control to which it relates.
The Council has provided evidence it responded to Mr B’s report and visited the site and reviewed the relevant plans before reaching its decision there was no breach of planning control that required action. The fault as highlighted above was in the Council not advising Mr B of the outcome at the time. I have taken into account that Mr B only made one report to the Council and it did not receive reports from other residents at the time.
In the circumstances, although there was significant delay in the Council providing an outcome to Mr B I do not consider he has been caused a significant personal injustice requiring a remedy in addition to the apology already provided.
Final decision
I have completed my investigation as I have found fault by the Council but consider the action it has already taken provides a suitable remedy.
Investigator's decision on behalf of the Ombudsman