Summary: Ms X complained the Council failed to act against builders who blocked a visibility splay outlined in the planning conditions for the site. We found fault with the Council making typographical errors in the planning condition preventing effective enforcement action. The Council agreed apologise to Ms X and provide training to staff.

The complaint

1. Ms X complained the Council failed to act against builders who blocked a visibility splay outlined in the planning conditions for the site.
2. Ms X says the Council failed to act because it told her the visibility splay only applied to a hedge and not the full surrounding area.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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How I considered this complaint

6. I have considered all the information Ms X. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. I considered Ms X’s comment on my draft decision before I made my final decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. 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.

What happened

12. In 2019, a developer put in a planning application for development of properties on a corner between two roads.
13. The Council’s Highways department assessed the developer’s plans and advised the developer needed to install visibility splays to ensure adequate emerging visibility for vehicles. The Council’s Highways department asked the developer to provide site plans detailing the visibility splays.
14. The developer submitted visibility splay plans as requested. These plans included a green hedgerow and an orange cross-hatch area. The plans confirmed the orange cross-hatch referred to the visibility splays and outlined “Hedges, walls or planting within visibility splays to be less than 900mm high”.
15. The Council’s Highways department had no objection to the development on the basis the developer followed the visibility splay diagram.
16. The Council’s planning officer completed their report in 2020 recommending approval of the planning application. The Council’s planning officer recommended approval subject to planning conditions. One planning condition related to the visibility splays. It stated the developer should reduce the height of all land “within the visibility splays annotated in green” to not exceed “900 metres” and remain at that level after.
17. On 11 July 2022, Ms X complained to the Council’s planning enforcement team the developers were not adhering to the planning condition about the visibility splays. Ms X said the developers repeatedly blocked the visibility splays causing a hazard when emerging from the road. The Council acknowledged Ms X’s contact.
18. The Council completed a site inspection on 14 October 2022. The Council confirmed the hedgerow did not exceed 900mm in height. The Council wrote to Ms X to advise following its investigation it found no breach of a planning condition. The Council said the planning condition only related to the green area which was the hedgerow and not the entire splay area.
19. Ms X disputed the Council’s position and pointed to the Council Officer’s report and Highways Department which detailed the visibility splay related to the entire cross-hatch area. The Council’s enforcement team responded to advise it could only enforce a planning condition in line with its wording which specifically stated the green area which it had checked and was within acceptable tolerance.
20. On 20 October 2022, Ms X made a formal complaint to the Council about the failure of its enforcement team to act.
21. The Council provided its Stage 1 complaint response on 2 November 2022. The Council said:
• The planning application contained a planning condition which required adherence to the visibility splays.
• Its enforcement team had found no breach of this planning condition because the hedge was within the recommended height limit so it could not take enforcement action.
• The planning conditions only referred to the green area on the plan which is the hedgerow and not the full land within the splay area.
22. Ms X sought a Stage 2 complaint response on 2 November 2022.
23. The Council’s Principal Development Officer confirmed with Ms X the visibility splay should cover the hatched area and not the just the green strip. The Council’s Principal Development Officer passed this matter back to the enforcement team.
24. On 30 November 2022, the Council provided its Stage 2 complaint response. The Council reiterated its position that it could only enforce the planning condition according to its wording meaning it could not take enforcement action.

Analysis

25. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary.
26. The Council accepted Ms X’s concerns about the failure of the developers to adhere to the planning condition and decided to investigate. The Council attended the site as part of its investigation. The Council followed its process to investigate, and I do not find fault with this.
27. On investigation, the Council found the hedgerow “was within acceptable tolerance” in relation to the planning condition so decided it could not take enforcement action. This is not a fault of the Council’s planning enforcement team.
28. Any planning condition applied to a planning application is specific to that planning application. The condition will set out specific restrictions to a development or measures that a developer should follow. These conditions need to be accurate and clear to ensure adherence.
29. The Council is correct, when it stated within its complaint response, that its planning enforcement team could only take enforcement action in relation to a planning condition set out in a planning application. A council’s enforcement team cannot carry out enforcement action against a developer for something not outlined in a planning condition.
30. In this instance, the Council’s highways department acted suitably to recommend a visibility splay and signed off the developers visibility splay plans. It was clear from the plans the visibility splay referred to the full orange cross-hatch area and the land should not exceed 900mm in this area.
31. However, the Council’s planning officer made an error in writing up the planning condition by stating the visibility splay only referred to the “green” area and the land should not exceed “900 metres”. These typographical errors were fault.
32. This fault means the Council’s enforcement team cannot take effective enforcement action. The enforcement team can only require the green hedgerow in the diagram does not exceed the stated height. Unfortunately, this stated height is now also “900 metres” in the planning condition making any enforcement on the hedgerow unlikely. The planning condition is essentially unenforceable.
33. The Council’s enforcement team are bound by the mistakenly written planning condition and cannot act outside this. I cannot find fault with the enforcement team being unable to act.

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Agreed action

34. Within one month of the Ombudsman’s final decision the Council should:
• Apologise to Ms X for the impact of its mistake in making the typographical errors in the planning condition.
35. Within three months of the Ombudsman’s final decision the Council should:
• Provide training to staff about the importance of ensuring planning conditions are accurate and specific. The Council should highlight the potential implications of errors in planning conditions on the planning enforcement team and the public.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman