The Ombudsman's final decision
Summary: Mr X complained the Council’s unfair handling of his reports of breaches of planning control caused him distress and led to him incurring avoidable costs. We found no fault in the Council’s enforcement investigation and decision making.
The complaint
Mr X complained about the Council’s planning enforcement investigation because it: failed to review a breach of the approved development plans; and acted unfairly dealing with non-compliance with a planning condition.
Mr X said what happened caused acute emotional distress and meant he had to seek professional advice. Mr X wanted the Council to repay the costs he incurred getting professional advice.
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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) Where we find fault, we must also consider whether that 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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) 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 Mr X’s written complaint and supporting papers; talked to Mr X about the complaint; considered information about the development available on the Council’s website; considered comments and supporting papers provided by the Council; shared some Council information with Mr X; and shared drafts of this statement with Mr X and the Council and considered any comments received before making a final decision.
Background
Most development needs planning permission from the council. And most planning permissions include conditions to control and regulate the development. People must carry out their development in line with the planning permission and its conditions.
Sometimes people want to change their development after the grant of planning permission. A fundamental change will need a new planning application. But people may also apply to make minor changes and to alter or remove planning conditions on an existing permission. Councils need to publicise applications to alter or remove planning conditions. This allows people to comment on the proposed change. Councils must consider peoples’ comments about planning and land use matters before deciding whether to alter or remove planning conditions.
If development takes place without the necessary planning permission or that does not comply with a permission, there will be a breach of planning control. Planning enforcement is discretionary so councils may, but do not have to, take enforcement action if they find planning rules have been breached.
The Government’s National Planning Policy Framework says councils should act proportionately in responding to suspected breaches. So, councils should not take enforcement action just because there has been a breach of planning control. Enforcement action should only happen when it would be a proportionate response to the breach. Councils may therefore decide to take informal action, for example, negotiating improvements, or not to act at all against a breach.
When deciding whether to enforce, councils should consider the likely impact of harm to the public. They should also consider whether, if receiving a planning application, they might give the unauthorised development planning permission.
If councils decide to take formal action, they usually have choices in how to act. For example, councils may issue enforcement or breach of condition notices. A breach of condition notice ensures people comply with planning conditions. People cannot appeal a breach of condition notice and failure to comply with it is a criminal offence. However, people have legal defences to any prosecution. For example, they may say they took all reasonable measures to comply with the condition(s).
What happened The Council granted conditional planning permission for development near Mr X’s home (‘the Permission’). While the development was under construction, Mr X reported a breach of planning control to the Council. Mr X said the development did not comply with the Permission approved plans (‘the Plans Breach’).
The Council quickly opened an enforcement investigation and visited the site. It found the works, so far, complied with the Plans but it would return on completion. The Council updated Mr X, who continued to say the development did not comply with the Plans.
A few months later, the Council returned to the site and visited Mr X’s property. Mr X raised concerns about a condition on the Permission (‘the Condition’). Mr X said the developer was in breach of the Condition (‘the Condition Breach’).
In considering the Plans Breach, the Council found a small difference between the as built development and that shown on the Plans. The Council said the difference was ‘de minimis’, that is, too small to be relevant for planning purposes. The Council recognised the difference was greater when considered from Mr X’s property. The Council said this was due to differences in ground levels on the development site and Mr X’s property. And, in assessing compliance with the Plans, it had to consider the ground level on the development site. There was no clear evidence to show any significant change to ground levels on the development site. So, the Council told Mr X it would take no further action on the Plans Breach. However, it would look into his new concern about the Condition Breach. The Council added the Condition Breach to its existing investigation and so the enforcement case remained open.
The Council contacted the developer about the Condition Breach. The developer disagreed there was a breach and sent information to the Council. Having considered the developer’s information, the Council changed its position. It updated Mr X and said the developer’s proposals would comply with the Condition. To fully carry out those proposals, the developer needed access to Mr X’s property.
Mr X contacted the Council saying he wanted a professional to report on any changes to ground levels as this affected compliance with the Plans. Mr X said until resolved, he could not see other matters, including compliance with the Condition, progressing. The Council’s file notes showed it understood Mr X wanted the developer to pay for the report and it refused his request to act as a ‘go between’ in arranging a survey. Mr X also questioned the Council’s changed position about compliance with the Condition. The developer also contacted the Council saying it could not fully comply with the Condition as Mr X would not allow access.
Over the following three months, the Council contacted both Mr X and the developer. Both reported no progress on complying with the Condition. Mr X raised other concerns about the development. The Council told Mr X his other concerns were not planning matters and compliance with the Condition was the only breach of planning control on the site. The Council also suggested the parties seek a third-party mediator, as it could not fulfil such a role, to help them move forward.
The Council then considered matters. It decided, even if ground levels had been raised, it would likely grant the built development planning permission. It gave the developer 28 days to progress matters with Mr X. The Council also updated Mr X about the need for progress otherwise it would close its enforcement case finding it not expedient to act on the Condition Breach.
A month later, the Council again considered matters. It found the developer had not fully complied with the Condition because Mr X would not allow access to his property. So, it was not proportionate or fair to send the developer a breach of condition notice. The enforcement case should therefore be closed, with no enforcement action taken on either the Plans or Condition Breaches. The file passed to a senior Council officer to decide whether to formally close the case.
Soon afterwards, Mr X contacted the Council and was told a senior council officer would be deciding whether to close the case taking no further action. Further contact with the Council led to Mr X seeking advice about the Condition and passing further information to the Council. The Council again considered matters. It accepted Mr X’s information and changed its position about what the developer needed to do to comply with the Condition.
About a month later, Mr X asked the Council for an update. The enforcement case was not yet formally closed although officers considered it was not expedient to enforce the Condition Breach. Mr X questioned the Council’s position saying it had not responded to his earlier correspondence (see paragraphs 19 and 23). The Council then told Mr X it accepted his recent information about the Condition. The Council also again confirmed it was taking no further action on the Plans Breach.
Six months later, Mr X got a professional report about the development (‘the Report’). And, through his local councillor, sent it to the Council and asked it to reopen its enforcement investigation. The Council gave the councillor information about its decisions not to take enforcement action against the Plans or Condition Breaches.
About three months later, Mr X asked the Council to enforce the Condition. Mr X said he would allow access to his property for the developer to carry out named works. The named works differed from those proposed by the developer (see paragraph 18).
The Council then opened a second enforcement investigation and wrote to the developer. The Council said if the developer wanted to go ahead with its proposals to fully comply with the Condition, it could apply to vary the Permission. The developer made a planning application to change the Condition. The Council publicised the application and Mr X objected to the proposals. The Council, having assessed the application and considered Mr X’s comments, varied the Condition. (The developer still needed access to Mr X’s land to fully comply with the Condition as varied.)
The Council wrote to Mr X and the developer and asked them to liaise so the approved Condition works could be completed. And, if Mr X did not allow access to his property, it would not enforce the Condition. The Council said it was closing its enforcement case and would not communicate further with either party about the Condition.
Mr X complained to the Council saying it was wrong to close its enforcement case before the developer complied with the Condition. Mr X also asked the Council to pay the cost of the Report, saying if it had dealt with the case correctly, he would not have needed independent advice. Mr X also said the Council had still not responded to his concerns about the development not complying with the Plans.
The Council replied saying the development was in line with the Plans when assessed from the site. It could not establish any change to ground levels and, if it did, would likely grant the built development planning permission. So, it was not expedient to take enforcement action. It had considered the differing views about the works needed to comply with the Condition. However, enforcement had not been reasonable or proportionate as Mr X would not allow access to his property. Its decision to open the second enforcement case was not linked to the Report but because Mr X said he would allow access to his property. The Report had simply confirmed Mr X’s views on breaches of planning control and other matters about the development. The Condition was changed and works to secure compliance completed. The Council therefore did not uphold the complaint and refused to pay Mr X’s costs for the Report.
Consideration Introduction The events leading to Mr X’s complaint started more than 12 months before he complained but continued into 2023. I have considered what happened back to Mr X’s report of the Plans Breach. This covers a period greater than 12 months but provided context and continuity about the Council’s enforcement investigations, which led to the complaint. I therefore found good reason to exercise my discretion about investigating late complaints (see paragraph 5).
We are not an appeal body. Our role is to consider whether there is evidence of fault in how councils reach their planning enforcement decisions. Without evidence of fault, we cannot question a council’s resulting decision however strongly a complainant may disagree with it. Here, my investigation focussed on the two issues set out at paragraph 1.
Failure to review the Plans Breach The Council quickly opened an enforcement case to investigate the Plans Breach. The investigation included site visits and contact with the developer and Mr X, which are steps to be reasonably expected. Contact with Mr X appears to have been mainly by telephone. And the evidence showed the Council at first told Mr X it found no breach but would review the matter on completion of the development. And later, having made a post completion visit, the Council told Mr X it would not act on the de minimus breach it then found. The evidence showed the Council explained how and why it reached this decision, referring to ground levels and measurements. I therefore saw no fault in how the Council investigated the Plans Breach to reach its enforcement decision.
The evidence also showed the Council further considered its Plans Breach decision. As, after receiving more information about ground levels, Council development management and planning enforcement officers met to discuss the matter. The officers still did not find the evidence clear about any changes to ground levels. But they agreed that if they did, they would likely grant the as built development planning permission. So, they confirmed they would not take enforcement action against the Plans Breach.
Overall, I saw no evidence of fault in the Council’s substantive decision making. It took about 18 months for the Council to tell Mr X it would not take enforcement action even if ground levels had been raised (see paragraphs 21 and 30). However, overall, the Council adequately kept in touch with Mr X by telephone during its enforcement investigation. So, I did not find the Council’s communication with Mr X fell below acceptable administrative standards.
I carefully considered whether the 18 months it took the Council to write to Mr X about ground levels led to the greater injustice of Mr X needing to commission the Report. Mr X did not agree with the Council’s enforcement decision on the Plans Breach. But, having investigated the matter, including considering concerns about changes to ground levels, the Council was entitled to take no action. And, it had told Mr X of its enforcement decision, in person and, after about six months, in writing. The Report also addressed not only the Plans and Condition Breaches but other matters about the development that did not concern the Council. I therefore found Mr X would have commissioned the Report if the Council had written to him sooner about ground levels.
Unfairness in dealing with the Condition Breach Mr X said the Council gave more weight to what the developer said about compliance with the Condition than to his information.
The evidence showed both Mr X and the developer provided information about the Condition. The evidence also showed the Council considered and responded to the information provided by both parties. This was a reasonable and suitable approach for the Council to take. It also led the Council to change its position about the work needed to comply with the Condition. In its first enforcement investigation, the Council’s final position was to agree with Mr X on the work needed to comply with the Condition. The Council had written to Mr X telling him of its view before he got the Report. The evidence did not show the Council treated the parties’ information about the Condition differently and so I found no fault here.
To comply with the Condition, the developer needed access to Mr X’s property. The evidence showed the Council did not consider enforcement of the Condition Breach was appropriate when Mr X would not provide access. Having considered the situation, the Council was entitled to reach this decision. And the Council wrote to Mr X to tell him of that decision.
When Mr X later told the Council he would allow access for named works linked to the Condition, it opened the second enforcement investigation. This led the developer to apply to vary the Condition, which they had a legal right to do. Mr X took the opportunity to object to the change but, having considered Mr X’s planning and land use objections, the Council varied the Condition. The Condition, as varied, was implemented, which resolved the Condition Breach. I saw no evidence of unfairness or other fault in the Council’s handling of the situation once Mr X said he would allow access. I also saw no evidence of fault in how the Council processed the planning application to change the Condition.
Final decision
I completed my investigation finding no fault causing injustice in the Council’s enforcement decision making.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman