Summary: Ms G complained about the Council’s handling of her concerns about breaches of planning control at a development next to her home. We have not found fault in the process the Council followed to reach its views, it therefore reached decisions it was entitled to make. It also correctly advised her any damage to her land was a civil matter.

The complaint

1. The complainant, Ms G, complained about how the Council handled her reports of her neighbour’s breach of planning control relating to excavation of land on the boundary of her property. She said the Council:
• failed to properly consider and investigate her concerns;
• verbally acknowledged works had taken place, but later denied this;
• failed to take enough enforcement action against her neighbour’s breach, and wrongly found the land is safe.
2. Ms G said, as a result, she experienced distress, her family cannot use the garden safely, and she had time and trouble to get the Council to address her concerns.

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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 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)
4. 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)
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. As part of my investigation, I have:
• considered Ms G’s complaint and the Council’s responses;
• discussed the complaint with Ms G and considered the information she provided; and
• considered the Council response to our initial enquiries, and the law and policy relevant to the complaint.
7. Ms G and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning enforcement

8. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
9. 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.
10. 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.
11. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)

Building Control

12. Councils have a very important role in ensuring buildings are safe for people to use. Their duty is to protect the public, rather than the interests of private individuals. They have extensive powers to protect the public, ranging from checking building works for compliance with building regulations, and requiring or carrying out emergency works to make buildings safe.
13. Most building work requires building regulation approval. Building regulations set out requirements and guidance that builders and building owners are required to follow and consider. The purpose of the regulations is to make sure buildings are safe for those that use them or live around them.
14. A certificate of building regulations approval can be granted by councils acting as building control authorities, or by independent ‘approved’ inspectors.

What happened

15. Ms G lives in the Council’s area. Her garden is level and has a fence at its borders. Behind the fence was a piece of land, which had a slope running downwards from the rear of her garden.
16. In 2022 the Council granted a developer planning permission to build a two-storey detached house on the land next to Ms G’s rear garden. The approval was subject to conditions, which included:
• (Contamination) A requirement for soil sampling of asbestos when the site had been cleared, and any required mitigations must be submitted to the Council for approval. Following this, the development must then be carried out in line with the approved plans; and
• (Retaining wall) A requirement for a retaining wall along the boundary of the property, which was at the border of Ms G’s property. The wall should be built in line with the approved plan and included piles to ensure the safety of the structure and land stability.
17. In Summer 2023 the developer applied to have the contamination condition discharged.
18. In Autumn 2023 Ms G told the Council the developer had removed soil and excavated the ground alongside her fence border. She said this was in breach of the two planning conditions. She shared photos to show the land before and after the developer’s actions.
19. In response the Council explained:
• land clearance was acceptable to enable the soil sampling, and it was considering the developer’s discharge of condition application;
• her concerns about the property boundary were a party wall issue and therefore a private matter between Ms G and the developer; and
• any concerns she had about the retaining wall should be brought to building control’s attention, which in this case was a private company and not the Council.
20. The Council subsequently contacted the developer, who informed the Council no works or excavation had taken place, only land clearance.
21. The Council did not discharge the contamination condition, as it required soil sampling from the developer. It also issued a stop notice to the developer and said no excavation or works could be started until the required sampling had been provided to the Council.
22. Following further contact from Ms G, the Council says it visited the site but was not satisfied excavation works had occurred.
23. By November 2023 Ms G had told the Council the developer had some materials delivered to the site which had been placed where she said excavation had taken place. She said her fence line had started sliding, a tipper truck had delivered soil to the site, and she had contacted the private building control with her concerns.
24. The Council inspected the site again and took photos. It said it was not clear if the site was any different to its previous visit with the exception of the material which had been delivered and the presence of the tipper truck.
25. Ms G continued to raise her concerns to the Council. She believed the developer was lying about the works which had taken place and soil had been brought to the site to falsify the soil samples. She said she was not satisfied with how the Council had handled her concerns as the site and the end of her garden was dangerous. She asked the Council for a meeting at the site.
26. The Council registered Ms G’s concerns as a complaint and agreed to meet her at the site. It did not uphold her complaint and explained the communication it had with the developer. It acknowledged its officer could have questioned the purpose of the tipper truck with the develop, but suggested the addition of soil may have been to temporarily assist with land stability. It said there had been no breach of planning control and it had found no further works had taken place.
27. In early 2024 the Council met with Ms G at the site, her local councillor also attended. Ms G said during the meeting it was agreed some excavation had taken place and this had caused damage, and the retaining wall needed to be built to stabilise the land.
28. Ms G said it was now agreed works had taken place which was not in accordance with the planning conditions. She said the Council’s poor handling and lack of action had unnecessarily created the civil matter between her and the developer. She wanted the Council to reconsider the matter and take enforcement action against the developer.
29. The Council told Ms G:
• it could not serve notice requiring the developer to build the retaining wall as soil samples had to be submitted first. It would chase the developer. It again explained any damage caused by a developer to Ms G’s land was a civil matter.
• It had now received the soil samples from the developer. It informed Ms G it would consider these. It also explained the developer had said he would prioritise the retaining wall.
• It had reconsidered her concerns but did not find fault in how it had handled her these and set out the events which had occurred, it explained enough information was available for it to reach a view on whether a breach of planning control had occurred.
• It acknowledged the developer had attempted to clear the site without fully discharging the relevant condition. Once it became aware, it ensured all works on the site ceased until the planning condition was discharged. It considered its discretion to take enforcement action and decided to speak with the developer and warn no further works should take place.
• The developer disturbance of the land was a civil matter. It had advised her accordingly and informed her she could speak with the private building control to discuss her concerns. It explained serving a breach of condition notice would not and could not instruct the developer to carry out any additional works to Ms G’s land.
• The developer had informed the Council they wanted to carry out work to Ms G’s land. The Council said it could not allow this until the condition had been fully discharged.
30. Ms G escalated her complaint with the Council. She said it was not clear whether it agreed a breach of planning conditions had occurred, including what the breaches and associated risks were. She also questioned how the Council had handled her planning enforcement concerns.
31. In February 2024 the Council’s building control received a report of concerns about a dangerous structure on the site. It inspected but did not find the site immediately dangerous and did not constitute a dangerous structure.
32. In its final complaint response, the Council did not change its view and found its initial complaint response had been appropriate. It explained the developer’s addition of soil to the site was not considered a breach of planning control or a condition, however, its scientific officer was aware of this and would decide if this required further action.
33. Ms G asked the Ombudsman to consider her concerns. She has since said her garden and fence has been damaged further due to the works the developer did.
34. In response to our initial enquiries the Council told us it does not have records of its site visits, but shared the photos it had taken when it did so. Its views are therefore only held in the email correspondence.

Analysis and findings

Planning enforcement

35. The evidence shows the Council registered and considered Ms G’s reported planning control concerns. In doing so, it received her photos, inspected the site on three occasions, had discussions with the developer, and took steps to ensure no further land clearance or works took place.
36. I have not found fault in the process the Council followed to reach its view to serve a stop notice to ensure no further works took place and to hold informal discussions with the developer to ensure the relevant conditions were adhered to.
37. I understand the Council agreed in its site meeting with Ms G that the developer had cleared and disturbed the land along the boundary towards her garden. It is also evident the Council agreed some works had occurred based on its earlier decision to serve a stop notice and warn the developer to not conduct any further land clearance. However, it was satisfied no further works had taken place since.
38. It was for the Council to decide whether a breach of planning control or the relevant conditions had taken place. The Council reached the view the works that had taken place did not amount to a breach of planning control or planning condition. It also found the addition of some soil to the site was not a breach of the contamination condition.
39. As I have not found fault in how the Council considered the concerns, these were decisions it was entitled to make. The Council was therefore not under a duty to consider further action against the developer.
40. In addition, the Council informed Ms G, even if it found a breach had occurred, it could not take further action as no works, including reparative works, could take place until the contamination condition had been complied with.
41. While I acknowledge, Ms G disagrees with the Council’s view. It was correct to advise her that any damage to her land was a private matter between her and the developer. It was also correct to inform her she could bring her concerns about the safety of the property boundary to the attention of the private building control contractor in relation to the retaining wall and concerns about land sliding, as this was not a planning control matter.
42. However, it was unhelpful the Council did not have reports or notes available for its site visits, as such information can clearly evidence the Council’s officers’ views at the time. In this case, as enough email correspondence was available, there was sufficient information available to show the officer’s views following inspections or considerations of the information the Council received.

Complaints handling

43. I have not found fault in the Council’s complaints handling. It set out Ms G’s concerns, how it had investigated her concerns, and the reasons for its decisions.
44. I acknowledge Ms G feels its response was not empathetic enough, however, its responses addressed her concerns and clearly set out its views. It’s final complaint response also acknowledged her frustrations.

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Final decision

45. I have completed my investigation with a finding of no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman