The Ombudsman's final decision
Summary: Ms X complained about development on land near her home, and disturbance from construction works. There was fault because the Council took no action following an enforcement visit and did not keep a proper record of what it had found during the visit. This caused Ms X disturbance and distress. The Council agreed to apologise to Ms X and make a symbolic payment of £100. It has appropriately remedied the injustice Ms X experienced due to its failure to communicate properly with her.
The complaint
Ms X complained about the Council’s handling of planning matters in relation to a development on land near her home.
Ms X said the Council’s failures have caused upset, distress and loss of amenity and property value for many residents.
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 provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any injustice is not significant enough to justify our involvemen (Local Government Act 1974, section 24A(6)) 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 Y, who represents Ms X. I read the Council’s response to the complaint and considered documents from its planning files.
I gave Ms X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.
What I found
Planning law and guidance Planning applications Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
Planning considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
Planning considerations do not include things like: views from a property; the impact of development on property value; and private rights and interests in land.
Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
Although guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
However, the courts have made it clear that case officer reports: do not need to include every possible planning consideration, but just the principal controversial issues.
do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
Planning enforcement Councils have a range of options for formal planning enforcement action available to them, including: Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach; Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it; Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public. These notices take 24 hours to come into effect; Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development; Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
A failure to comply with an Enforcement Notice may lead to a criminal offence, which councils may prosecute in the courts. A failure to comply may result in further, direct action by councils to rectify the breach. This could include demolition of buildings or removal of equipment or structures.
However, 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.
What happened Ms X complained that development near her home, which included noisy construction work near the boundary, caused upset, distress, and loss of property value. Ms X’s house shares a boundary with the site.
The nearest new house is about 25 metres away from the rear of Ms X’s home. The case officer’s report for the application includes evidence to show the Council considered the impact the new houses would have on existing homes.
The planning permission included a condition to control foundation works which required the developer to submit details to show that local residents were protected from noise and vibration.
Construction work began in the spring. Mr Y (Ms X’s representative) complained to the Council about noisy foundation work, which was in breach of the planning condition. This was because the developer had not yet submitted details for the Council to consider showing how noise would be controlled. Mr Y said the work continued for three to four days, on the boundary near Ms X’s house but the Council took no enforcement action.
The Council’s records show its enforcement officer visited the site, but: there is no evidence to show what the enforcement officer found on the site; or its reasons for its decision not to take enforcement action.
In summer, after permission was granted, the developer submitted details of foundation works and asked the Council to confirm in writing that noise protection measures were satisfactory, and so by ‘discharge’ the condition. The developer said they intended to begin foundation works less than two weeks later.
Shortly after the developer’s two-week deadline expired, the Council acknowledged receipt of the condition details. The planners shared the details with their colleagues in environmental health. About three weeks later, environmental health responded to say it had concerns about the measures.
On the same day (in late summer) that environmental health sent details of its concerns, the Council’s planning enforcement team received complaints that foundation work had resumed near the boundary, and that it was very noisy. Later that day, enforcement officers contacted the developers to warn that there was a breach of planning control, as it had not approved the planning condition.
The Council said that foundation work in late summer stopped two days after it began. Before the week had ended, the Council had written to the developer to refuse the condition discharge application it had received a few months before. A week after this, the Council visited the site and saw evidence to confirm reports from the public that foundation work had been carried out, in breach of the condition. A Breach of Condition Notice was served on the developer.
After further discussions with the Council, the developer submitted a revised application. The planners consulted environmental health officers again, who were satisfied the measures to control noise were satisfactory. The Council discharged the planning condition.
The Council received complaints about what had happened. While it felt it had acted without undue delay in relation to the condition discharge application and enforcement action, it accepted that it had been slow to respond to complaints and concerns from the public. It read our guidance on remedies on our website and offered £250 to every household that shared a boundary with the site. The Council said this was for the time and trouble these residents experienced because of its failure to deal with concerns more promptly. The Council’s offer did not relate to foundation works earlier in the spring.
Ms X was one of the residents who accepted the Council’s offer.
My findings
Impact on amenity from the new houses We do not expect planning case officer’s reports to cover every possible planning consideration. The report did refer to Ms X’s house, but it did not consider the development would have an adverse impact on her residential amenity. Further investigation is unlikely to find fault in the way the Council considered this issue.
In planning terms, Ms X’s home is a significant distance away from the nearest new house. Because of this, even if we had found fault in the way the Council made its decision, it is unlikely we would be able to show that Ms X was caused a significant injustice by the house nearest to her home.
Foundation works Mr Y reported foundation works in the spring soon after development began. The work was controlled by a planning condition, but the developer had not provided the information necessary to discharge it. Because of this, foundation works were unlawful.
The Council’s records show a planning officer visited the site two days later but took no further action. There is no detail of what was found onsite and why no action was taken.
We expect councils to keep proper records of what is found on site during visits and the reasons for taking/not taking enforcement action. We need this information so we can review council enforcement decisions. These gaps in information in the Council’s records was fault.
I have read Mr Y’s emails to the Council and consider it more likely than not that unlawful work took place. The Council had discretion on whether to take enforcement action, but it has provided no reasons to justify its failure to act. Without a valid reason or explanation, the lack of action is fault.
When we find fault, we must consider whether it caused an injustice to the complainant or others who might have been similarly affected.
Ms X is likely to have been disturbed by a short, intense period of noisy work in the spring. The Council’s failure to act and provide reasons or explanation is likely to have caused disappointment, frustration and confusion. I will recommend a remedy below for the injustice caused by the fault I have found.
In the summer, the developer applied to discharge the foundation works condition, giving a few weeks’ notice of its intention to begin work. It is the developer’s responsibility to ensure work complies with condition requirements. Once work started in late summer, the Council’s enforcement officers acted promptly, and work stopped soon after. The Council does have proper records for these events.
For delay in responding to enquiries relating to the foundation works in late summer, the Council has already offered a time and trouble payment to residents along the boundary. Ms X has already accepted this offer.
Agreed remedy To remedy the injustice caused by the fault I have found in relation to foundation works carried out in the spring, the Council has agreed to: apologise to Ms X, who shares a boundary with the site, for the injustice caused by its failure to act and keep proper records; as well as the sum it has already paid, pay an additional £100 to Ms X, for the disturbance, frustration, disappointment and confusion caused by the fault I have found.
The remedy will be carried out within four weeks of the final decision on this complaint.
Final decision
There was fault in the Council’s failure to act and keep proper records. I completed my investigation because the Council accepted my recommendations.
Investigator's decision on behalf of the Ombudsman