The Ombudsman's final decision
Summary: Mr X complained about the Council’s response to his reports of a breach of planning control and poor communication. The Council was not at fault.
The complaint
Mr X complained about the Council’s response to his reports of a breach of planning control. Mr X says the Council failed to engage with him about landscaping on a development site that he lives on. Mr X says the Council did not: answer his questions; explain landscaping delays; or hold the developer to account.
Mr X said it caused him distress, time and trouble and would like answers to his questions, an apology and staff training.
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. 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 complaint and discussed it with Mr X via email.
I read the Council’s response to the complaint, considered documents from its planning files, including the plans and case officer reports, and spoke to Council officers.
I read correspondence between Mr X and the Council.
I considered the Council's policies and relevant law and guidance.
I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making the final decision.
What I found
Planning law and guidance Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations say they should not.
Planning considerations include issues like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. The planning enforcement process we expect is for councils to consider allegations and decide what, if any, investigation is necessary. If the council decides a breach of control, it must consider what harm is caused to the public before deciding how to act. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on whether and how to act.
The Council’s enforcement plan (2018) sets out the Council’s policy and procedure for enforcing planning control across the Council area. The enforcement plan states it may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or asking submission of a planning application so it can formally consider the issues.
Formal planning enforcement action available to a council includes a Breach of Condition Notice (BCN). This requires compliance with the terms of planning conditions already determined necessary for approval of the development.
What happened Planning permission was granted for a new housing development. It included two planning conditions for landscaping.
Mr X later purchased a property on the development.
In late March 2021 Mr X emailed the Council and made a formal complaint that: the railings on his property were not in line with the approved planning application; there was a delay in installing play equipment; phase 1 trees were not planted; and roads were not finished.
The Council acknowledged the email the same working day and responded in early April 2021 with a progress update.
In early June 2021 Mr X emailed the Council and complained about: non completion of phase 1 landscape planting; installation of the play equipment had been delayed; and the roads on the development had not been topped.
The Council responded three working days later. It gave an update on the installation of the play equipment and said there were no planning conditions regarding roads being topped so could not take enforcement action about that. It did not comment on the phase 1 landscape planting.
A week later Mr X emailed the Council about the lack of planting of trees or bushes. The Council replied to Mr X the same day. It asked Mr X for extra information about which trees had not been planted. Mr X said his complaint related to all phase 1 planting.
In mid-August 2021 the Council met Mr X on the development site to discuss in detail his concerns, including the planting.
The Council deadline for completion of all phase 1 planting was October 2021. The developer did not meet this deadline.
In early November 2021 Mr X complained to the Council the phase 1 planting condition deadline had not been met. The Council responded the next day to Mr X to say it was aware phase 1 planting had not been completed and was considering what action it would take. Mr X was unhappy with the Council response. He asked the Council for specific timescales and details of what action would be taken against the developer.
In mid-November 2021 the Council emailed Mr X and confirmed it was preparing a Breach of Conditions Notice (BCN). The same day Mr X emailed the Council and asked again for timescales. The Council responded the same day and said to Mr X until the BCN was served it could not give specific timescales.
In early December 2021 Mr X asked the Council for an update. The Council updated Mr X one working day later. It said the phase 1 planting had started and it apologised for the delay in issuing the BCN. It said this was because of high workloads and staff shortages. The Council enforcement department sent the BCN to the Council’s legal department.
The Council met with the developer in mid-December 2021 to speak informally about the delay in completing the phase 1 planting.
In late December 2021 and mid-January 2022 Mr X complained in an email to the Council that: the Council did not answer his email from December 2021; the Council was not holding the developer to account to enforce phase 1 planting; the roads were not finished; and queried when the roads would be adopted by the Council.
The Council responded to Mr X’s December 2021 complaint in mid-January 2022, and apologised for the delayed response. The Council confirmed it had carried out a site visit with the developer to understand the outstanding Phase 1 fencing and tree planting. The Council said although some more planting had taken place it had not all been completed.
The Council served the BCN on the developer in mid-February 2022. The developer had 60 days to comply with it.
In late March 2022 Mr X complained again to the Council.
The Council responded to the stage 1 complaint in early April 2022. It said: the phase 1 landscaping had not been planted under the approved plans.
the developers would submit new plans and provide incremental planting.
it had worked with the developer before taking formal enforcement action; the informal enforcement approach had taken longer due to officer caseloads; and it had served the BCN in February 2022.
In early April 2022 the developer submitted a planning application seeking a variation to the condition on landscaping.
Mr X was unhappy with the Council’s response to his complaint and asked it to consider this further at stage 2 of its complaints process.
In mid-May 2022 the Council sent Mr X its stage 2 response. The Council said: it upheld Mr X’s complaint about the phase 1 landscaping, which it accepted could have dealt with it more efficiently; the owners of properties where trees had not been planted did not want the trees; the developer was working with the Council to correct the tree planting issue; and it apologised for the tree planting delay.
In May 2022 the developer submitted amendments to the variation of conditions plan.
Mr X said he did not receive the stage 2 response and complained to the Ombudsman.
In response to my enquiries the Council said: it had emailed Mr X it’s stage 2 response, and provided a copy of its email; a Council officer spoke to residents where trees had not been planted in line with the approved plans. The trees would be replanted elsewhere on the site; and damaged trees would be replanted on the development site.
The Council expects the variation of condition application to be determined in Autumn 2022 and the Council and developer would continue to work on resolving the landscaping issues.
My findings
Enforcement action Planning enforcement is discretionary and formal action is a last resort. There was no requirement for the Council to discuss the landscaping with the developer until the deadline for complying with the condition expired in late October 2021. Following that, the Council spoke to and met with the developer in mid-December 2021. This was appropriate action to take, was in line with its enforcement policy and there was no undue delay.
It was for the Council to decide whether formal enforcement action was appropriate. In February 2022 the Council served a BCN on the developer. The Council has apologised to Mr X for the delay in issuing the BCN but this delay is not sufficient to amount to fault.
The developer submitted an application to vary the landscaping condition in early April 2022. The Council is entitled to decide whether it is satisfied with the new proposals. Although no decision has been made as yet, the Council said it would continue to work with the developer to resolve the outstanding landscape issues. It is following a proper process so I find no fault.
Communication I find no fault in the way the Council communicated with Mr X and am satisfied it kept him updated of all key developments. Mr X complained to the Council in March, June, November, December 2021 and January 2022 about the phase 1 planting, play equipment and topping of roads on the development he lived on. The Council responded to all Mr X’s complaints and kept him updated about the enforcement action it was taking. In most cases Mr X’s emails were responded to either the same day or within a short number of working days. Sometimes the Council sent a holding response while it undertook further investigations which was appropriate. The Council took one month to respond to Mr X’s complaint from late December 2021, which was not a significant delay, particularly given the Christmas period, and was not fault. The Council has apologised which was a suitable remedy for any frustration caused.
Final decision
I have completed my investigation finding no fault with the Council.
Investigator's decision on behalf of the Ombudsman