Summary: Mr X complains about an absence and lack of enforcement action taken by the Council in response to breaches of planning on a development he lives on. We have concluded our investigation without finding fault. The evidence indicates that the Council actively addressed the alleged planning breaches through multiple site visits, consultations with the developer, and the issuance of a breach of condition notice when necessary. There is no evidence of inaction on the part of the Council; they exercised their discretion appropriately in accordance with their policies and procedures and it is not our role to intervene or propose an alternative approach for the Council's enforcement actions.

The complaint

1. Mr X complains about an absence and lack of enforcement action by the Council in response to breaches of planning by the developer for the site he lives on. Mr X says the Council failed in its duty to ensure planning conditions were met, and if not for the Council’s inaction, the site would not currently be in a state of neglect. Mr X would like the Council to take enforcement action to ensure the outstanding breaches are resolved.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke with Mr X and considered the information he provided. I also made enquiries with the Council and considered the information it provided in response. Mr X and the Council were offered an opportunity to comment on my draft decision and I considered any comment submitted before making a final decision.

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What I found

Relevant law and guidance

Planning Enforcement

5. 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.
6. 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;
• 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.
7. 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.

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What happened

8. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place. This does not mean I have not considered all the information before me.

Background

9. Mr X lives on a new build development. Mr X says the developer entered administration and the site is unfinished, with a number of outstanding breaches to the planning conditions which were originally granted.
10. In July 2022, Mr X contacted the Council regarding the landscaping plan, which he said had not been adhered to by the developer. Mr X said there were instances were hedgerows, grassed areas or trees were either missing, positioned incorrectly, were not at the agreed height or had been poorly executed.
11. Later in July 2022, the Council opened an enforcement investigation. The enforcement notes detail the visits by the Council from July 2022 to January 2024, and actions taken by the Council throughout their investigation, including calls with Mr X, notes from the site visits and meetings with the developer.
12. In September 2023, Mr X submitted a Stage 1 Complaint to the Council. Mr X expressed dissatisfaction with a lack of action by the Council and sought an outcome of his planning complaint raised in July 2022.
13. In October 2023, the Council issued its Stage 1 Complaint response. The Council informed Mr X that it had made several visits to the site to assess any deviation from the approved scheme, and had also met with the representative of the developer. The Council informed Mr X of the actions that had been taken by the developer following its intervention, including planting, and the removal of trees. The Council said the developer had since undertaken a review of the planting specification and that planting season had just been entered. The Council did not uphold Mr X’s complaint, citing that additional planting had taken place and that the investigation remained ongoing.
14. Later in October 2023, Mr X submitted a Stage 2 Complaint to the Council. Mr X acknowledged that whilst further planting had taken place, much of it had already died or was not planted in accordance with the conditions of the approved plans. Mr X also complained about further breaches of conditions, including, but not limited to access to the development and the occupation of dwellings. Mr X expressed that it was the responsibility of the Planning Office to ensure the developer were not in breach of the conditions.
15. In January 2024, the Council issued its Stage 2 Complaint response. The Council acknowledged that Mr X had met with the enforcement team as part of further site visits carried out on site. The Council also acknowledged that the landscaping had increased since previous visits but that any dead or dying plants would need to be replaced in accordance with the approved landscaping conditions. The Council also said that concerns relating to site access had been discussed with its highways team and it agreed that these works could be completed as part of the adoption works, but had yet to be applied for.
16. The Council also said it had issued a breach of Condition notice in March 2023 in relation to the signal scheme, but further discussions with the highways team had since cast doubt on whether this was still required. The Council explained that no prosecution could proceed until it had established the level of harm caused by the breach, particularly in relation to highway safety. It further noted that the Public Open Space had now been provided and was available for use. The Council reiterated that the application for one additional dwelling was considered acceptable on its planning merits, and linking it to unrelated enforcement matters would have been unreasonable. The Council did not uphold Mr X’s complaint
17. It is noted that the developer who is the subject of this complaint entered administration in early 2024.

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Analysis

18. It is important to note that our role is not to dictate the specific actions the Council should take regarding enforcement but to assess the processes followed in reaching their decisions. Our focus is on evaluating whether the Council acted in accordance with established procedures and guidelines, reflective of the discretionary nature of planning enforcement. We aim to determine if the Council adequately considered the relevant factors and acted within its authority, rather than presuming to influence the substantive outcome of enforcement actions.
19. I understand that Mr X is frustrated with the ongoing issues related to the developer's adherence to planning conditions and the overall state of the site, particularly following the developer’s entry into administration in January 2024. It is crucial, however, to clarify the nature of planning enforcement and the Council’s responsibilities in this context.

Discretionary Nature of Planning Enforcement

20. Planning enforcement is inherently a discretionary function of local authorities. This means that Councils have the authority to choose whether or not to take formal action in response to breaches of planning regulations. The decision to enforce is not merely a matter of identifying a breach; it involves an assessment of various factors, including the potential harm to the public, the context of the development, and whether remedial action could be achieved through other means.
21. According to established guidance, Councils must consider whether the harm caused by a breach is significant enough to warrant formal enforcement action or if informal measures might achieve a satisfactory outcome. This approach enables Councils to prioritise their resources and respond proportionately to the issues at hand.
22. This principle dictates that any enforcement action taken must be appropriate and proportionate to the identified breach. If the harm caused by the breach is deemed minimal or if there are viable alternative solutions, the Council may opt for informal measures rather than formal enforcement action. This can include negotiating with the developer for compliance or seeking assurances that outstanding issues will be addressed without resorting to more severe measures.

Actions taken by the Council

23. The evidence demonstrates that when Mr X brought his concerns to the Council in July 2022 regarding alleged breaches in the landscaping plan, the Council has actively engaged in addressing these issues.
24. The Council's actions in response to the breaches alleged by Mr X are well-documented in the enforcement notes, which illustrate a clear approach to addressing the concerns raised. Upon receiving Mr X’s complaint in July 2022 regarding the landscaping plan, the Council promptly opened an enforcement investigation. The notes detail multiple site visits conducted from July 2022 through January 2024. During these visits, Council representatives engaged in direct observations, assessing the development against the approved planning conditions.
25. For example, the enforcement notes from August 2022 highlight that Council officers observed several areas of non-compliance, including missing or incorrectly positioned hedgerows and trees. Recognising these concerns, the Council engaged with the developer to discuss necessary corrective actions. Notes from subsequent visits in late 2022 indicate ongoing monitoring of the site and continued discussions with the developer about compliance with the landscaping plan, demonstrating the Council were not sitting idle, but actively working with the developer to resolve the issue.
26. In February 2023, the enforcement records show that the Council had a follow-up meeting with the developer, during which specific actions were discussed, including rectifying the landscaping deficiencies and timelines for completion. The notes further reveal that the Council communicated directly with Mr X during this period, providing updates on the enforcement process and addressing his concerns. This ongoing engagement is evidence of the Council's engagement in ensuring that planning conditions were being met and that Mr X’s complaints were being taken seriously.
27. In September 2023, in response to Mr X's Stage 1 Complaint, the Council’s notes confirm that it met with a representative of the developer and reviewed the actions taken, including additional planting that had occurred. The Council communicated these findings to Mr X, emphasising that it had been actively monitoring the situation and that improvements had been made as a result of its intervention.
28. Furthermore, in January 2024, the enforcement notes reflect ongoing discussions between the Council and its enforcement team regarding the condition of the landscaping. The notes indicate that the Council was aware of the need for replacement of dead or dying plants and that it was coordinating with the developer to ensure compliance with the approved landscaping conditions. This ongoing engagement showcases the Council's diligence in following up on Mr X's concerns.
29. Additionally, the Council's engagement with its highways team, as noted in the enforcement records, showcases a balanced approach to site access issues. The notes confirm that the Council determined that any necessary works could be integrated into future adoption plans, illustrating its consideration of practical outcomes while ensuring compliance with the conditions.
30. Throughout this process, the enforcement notes demonstrate that the Council exercised its discretion in a measured manner. The issuance of a Breach of Condition Notice in March 2023 regarding the signal scheme is a clear indication of this, as the Council took the time to assess the level of harm caused by the alleged breach before deciding on the appropriate course of action.
31. It is important to recognise that the developer's entry into administration in January 2024 presents a significant barrier to the Council's enforcement capabilities. This situation means that the Council is limited in its ability to compel action or seek remedies for outstanding breaches. While the Council remains committed to ensuring compliance with planning conditions, it cannot be held responsible for the circumstances of the developer, which are beyond its jurisdiction and control.

Summary

32. The evidence demonstrates that the Council has not been inactive in addressing Mr X’s concerns regarding planning breaches. Instead, it showcases a series of actions taken over an extended period, reflecting the Council's active engagement and monitoring of the situation. While we acknowledge that different decisions regarding the exercise of discretion might have led to alternative outcome, potentially more immediate enforcement action, the fundamental principle remains that it is not within our purview to impose a different perspective on the Council’s judgment.
33. The planning enforcement process is inherently discretionary, allowing the Council to consider various factors, including the proportionality of the response and the potential impact on the community. Thus, while there may be differing opinions on the approach taken, the Council’s exercise of discretion in this matter does not constitute fault or failure in its responsibilities and for this reason, I have not made a finding of fault.

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Final decision

34. I have concluded my investigation without finding fault. The evidence indicates that the Council actively addressed the alleged planning breaches through multiple site visits, consultations with the developer, and the issuance of a breach of condition notice when necessary. There is no evidence of inaction on the part of the Council; they exercised their discretion appropriately in accordance with their policies and procedures and it is not our role to intervene or propose an alternative approach for the Council's enforcement actions.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman