The Ombudsman's final decision
Summary: Mr and Mrs X complain about the Council’s handling of matters relating to access to a development site whereby construction vehicles are using a private road adjacent to their property. They complain the Council has failed to follow directions given about access by the Planning Inspectorate. We have found fault with the Council’s record keeping and complaint handling. The Council will apologise to Mr and Mrs X and make a financial payment.
The complaint
Mr and Mrs X complain about the Council’s handling of matters relating to access to a development site whereby construction vehicles are using a private land adjacent to their property. They complain the Council has failed to follow directions given about access via this lane by the Planning Inspectorate.
Mr and Mrs X say the issue has caused them avoidable disruption and distress.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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) 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) 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 discussed the complaint with Mr X and considered the information he provided. I made enquiries of the Council and considered its response and documents it provided.
Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.
What I found
Legal and administrative background The Council is the Local Planning Authority. Surrey County Council is the Highways Authority and is responsible for the county’s roads. There are separate powers and duties in respect of each of these roles, which are governed by different legislation.
Planning permission Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
Decision making and material considerations All decisions on planning applications must be made in accordance with the council’s development plan unless material considerations indicate otherwise.
Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise. Government statements of planning policy are material considerations.
Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
General planning policies may pull in different directions (e.g., in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
Enforcement A breach of planning control is defined in Section 171A of the Town and Country Planning Act 1990 (“the TCP Act 1990”), as follows: 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.
The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. This provides, ‘’Effective enforcement is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and act where appropriate.”
As planning action is discretionary, Councils may decide to take informal action or not act at all. Informal action may inlcude negotiating improvements, seeking an assurance or requesting submission of a planning application so they can formally consider the issues.
Planning Inspectorate The Planning Inspector acts for the responsible Government minister. The Planning Inspector considers appeals about: delay by an authority in deciding an application for planning permission; decision to refuse planning permission; conditions placed on planning permission; and a planning enforcement notice.
What happened What follows is a brief chronology, in which I have set out the key events. It is not necessary for me to detail everything that happened here.
Mr and Mrs X live on a private non-adopted road which I shall refer to as Lane A. Lane A is under the joint ownership of its residents and the owner of the proposed new development, who I shall refer to as the ‘developer’ Responsibility for maintenance of Lane A lies with its residents, the developer and occupier of the new development.
A planning application was submitted by the developer for a dwelling and detached garage with access via Lane A. Planning permission was refused by the Council in August 2020.
In February 2021 the Planning Inspectorate granted planning permission for the new development. The appeal decision stated that access to the site via Lane A “…would be hazardous, due to its narrow nature and thereby be likely to cause harm to highway safety, albeit temporary. Consequently, exclusive access from [Lane B] would be necessary”. This was not made a condition of the planning consent granted by the Inspector. I refer to this as ‘Statement X’.
The appeal decision also stated that “Prior to the commencement of development including demolition works, a Construction Method Statement’ shall be submitted to, and approved by the local planning authority”. Relevant to this investigation, the Inspectorate clarified that that statement should include provision for parking of vehicles of site operative and visitors, loading and unloading of plant and materials, storage of plant and materials and vehicle routing. I refer to this as ‘Condition 1’.
The developer submitted a construction transport management plan to the Council. I refer to this as the ‘Plan’. The Plan stated that some plant equipment such as an excavator and small trailer-based crane would be delivered and collected via Lane A. The Plan also stated that all construction vehicles should only enter/exit via the exiting vehicular access onto Lane B with no access via Lane A.
In April 2021 a digger was delivered to the site via Lane A. Mr X complained to the Council about a breach of the condition made by the Planning Inspectorate. They said the developer was arranging deliveries to the site via the Lane which they believed had been specifically banned for all construction vehicles in a condition imposed by the Planning Inspectorate.
The Council contacted the developer and the highways authority about Mr and Mrs X’s concerns. The Plan was amended and specified that a maximum of ten grab lorries with no more than two in one day were allowed to access the site via Lane A. The Plan also stated that all deliveries would be made on flat bed lorries which would unload using a crane self-load facility in the driveway of the development site.
The highways authority confirmed it was aware of the appeal decision and explained its assessment focused on highway safety implications of allowing construction traffic access to Lane A via two specific routes. The authority raised no concerns about highway safety in this regard. On 27 May 2021 the Council approved the Plan and discharged Condition 1.
The Council responded to Mr and Mrs X’s complaint at stage one of its complaint procedure. Mr and Mrs X remained unsatisfied and asked for their complaint to be escalated to stage two.
The Council responded on 25 May 2022 and acknowledged the Inspectorate’s appeal decision said that all construction traffic should access the site via Lane B. However, it said this was not included in any conditions attached to the planning consent and therefore could not be used by the Council as a basis on which to take enforcement action. Mr and Mrs X also complained the Council had not responded to any communications for almost four weeks and this had added to their distress. The Council apologised to Mr and Mrs X for the difficulties they had experienced in getting a response to their various questions.
Mr and Mrs X remained unhappy and complained to the Ombudsman. They said the Council should have followed directions given about access via Lane A by the Planning Inspectorate. They also complain the Council failed to answer their phone calls and emails and letters requesting information and clarity, until a freedom of information request was mentioned.
Analysis The Ombudsman is not an appeal body, so cannot comment on the merits and judgements made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define planning law.
In its appeal decision the Planning Inspectorate set out a pre-commencement condition. Pre-commencement conditions are ones which must be complied with before any development work is allowed to begin. This is reference in paragraphs 23 and 25 above.
The Plan allowed for a maximum of ten grab lorries with no more than two in one day to access the site via Lane A. The Council was therefore aware that some construction vehicles would be accessing the site before development work commenced.
The Council’s records show there was communication between the Council, highway authority and developer about the safety concerns. The Council consulted with the highways authority and was aware it had not undertaken an inspection of Lane A in its assessment of highway safety. The Council confirmed the Plan did restrict the level of construction traffic to an acceptable level and in reaching this decision the authority was aware of the appeal decision.
The Council has acted without fault in considering the decision of the Planning Inspectorate and highways authority and using these findings to guide its decision to approve the plan and discharge Condition 1. I appreciate Mr and Mrs X disagree with this, but the Ombudsman cannot question the professional judgment and merits of a decision.
Mr and Mrs X have complained about an alleged breach of planning conditions to the Council. It is not my role to identify whether a breach of condition has occurred, or whether the Council should take enforcement action; this is entirely discretionary and where it is expedient to do so. My role is limited to identifying whether the Council followed the correct procedure, acted on concerns raised and gave consideration to the various enforcement options at its disposal.
Mr and Mrs X consider the Council wrongly decided not to take action when they reported the developer had breached planning conditions set out in Statement Y. Within the appeal decision the Planning Inspectorate said that access to the development site via Lane A would be hazardous and likely to cause harm to highway safety, albeit temporary. Consequently, exclusive access from Lane B would be necessary.
While this is noted within the content of the appeal decision the Planning Inspectorate did not include this as a condition of the planning consent. Therefore, there was no requirement for the Council to take enforcement action as there was no evidence of a breach. I appreciate Mr and Mrs X strongly disagree with this, however I am satisfied the Council considered their concerns and contacted the developer and highways authority to seek clarification about the Plan. I find no fault by the Council.
Since the Planning Inspectorate has the delegated authority of the secretary of state, their decisions are outside the remit of the Local Government and Social Care Ombudsman’s investigations.
I have reviewed the Council’s records of its communication with Mr and Mrs X from April 2021 to the 27 May 2021, when the stage two complaint response was issued. The records do not show details of telephone communication from Mr and Mrs X as recorded in their stage two complaint. This is fault.
The Council has apologised for the difficulties Mr and Mrs X experienced in getting a response to their various questions. It is my view the lack of communication and records has caused Mr and Mrs X’s significant distress and uncertainty which could have been avoided. Keeping robust records of actions on a case is a vital requirement of case management. It ensures the integrity of information so those involved feel confident their views and concerns have been clearly recorded.
There was a delay by the Council in responding to Mr and Mrs X’s stage one complaint, which also failed to specifically address the issues Mr and Mrs X raised about construction traffic accessing the development site. This was fault. These faults added to Mr and Mrs X’s distress and uncertainty at the time.
Agreed action
Where we find an injustice, we try in our remedy proposals to place people in the place they would have been but for the faults. Where that is not possible, we use our Guidance on Remedies which recommends a symbolic payment on a scale of between £100 and £300 in recognition of the injustice caused.
To remedy the fault and injustice identified in paragraphs 40, 41 and 42 above, within one month of the date of my final decision, the Council will apologise to Mr and Mrs X and pay them £100 in recognition of the distress and uncertainty caused by the faults identified.
Final decision
I have found evidence of fault by the Council causing an injustice to Mr and Mrs X. I have completed my investigation on this basis.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman