• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr E complains the Council failed to ensure the development he lived in complied with its planning conditions. He also says the Council did not take enough action against the developer, caused delays, and failed to keep him informed about its enforcement progress. As a result, Mr E says he experienced distress and loss of trust in the Council’s ability to address his concerns. The Council was at fault for its failure to start its enforcement process in late 2018 and the delay this caused. It was not at fault for its handling of the enforcement process, nor how it communicated with Mr E from January 2020. The Council has agreed to apologise to Mr E and pay an acknowledgement for the distress and time and trouble it caused him.

The complaint

1. The complainant, whom I shall refer to as Mr E, complained about the Council’s handling of a developer’s (The Developer) breach of planning conditions for the development in which he lived. He said the Council failed to:
   • ensure the developer completed the works as set out in the planning documents before the development was occupied;
   • take enough action against the Developer and caused delays; and
   • keep him informed about its enforcement progress.
2. As a result, Mr E said he experienced distress and loss of trust in the Council ability to address his concerns. He also said he had time and trouble to get the Council to act on his 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. If we are satisfied with a council’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

7. As part of my investigation, I have:
   • considered Mr E’s complaint to the Council and its responses;
   • discussed the complaint with Mr E and considered the information he provided;
   • considered the information the Council provided in response to my enquiries; and
   • given Mr E and the Council the opportunity to comment on a draft version of this decision and considered their comments.

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What I found

Planning law and Guidance

8. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
9. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
   • The carrying out of development without the required planning permission; or
   • Failing to comply with any condition or limitation subject to which planning permission has been granted.
10. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under s187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the Magistrates’ court.
11. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. This states:

“Effective enforcement is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate.’’

12. So, enforcement action is not mandatory but discretionary.
13. Councils have a choice of different enforcement options to secure a satisfactory remedy for a breach of planning control. Not all cases will, therefore, be dealt with in the same way. The options range from no formal action and applying for retrospective planning permission to formal action such as service of a breach of condition notice or an enforcement notice.

Council Development Management Compliance Strategy

14. The Council’s policy says it will prioritise complaints about breaches of planning control in three categories. It will investigate complaints where there is a significant nuisance or impact on amenity (priority 2) within seven working days.
15. It further prioritises complaints in four categories based on the likely harm breaches may cause (High, Medium, Low and Lowest). This includes:
    • (High priority) If in the opinion of the Council a breach of a planning condition causes serious demonstrable harm or presents an immediate and serious danger to the public.
    • (Medium priority) If breaches of planning conditions which in the opinion of the Council causes demonstrable continuous harm to the locality or the living conditions of local residents.
16. The policy says the Council will tell a complainant who its investigating officer is and it will provide an update and advice on how the case is likely to progress.
17. The policy also says the Council will proactively monitor major development sites and put in place arrangements so that conditions can be dealt with promptly as part of its compliance function.

Japanese Knotweed

18. The Wildlife and Countryside Act 1981 says Japanese Knotweed it is an invasive species. It is an offence to allow it to spread of your land, unless the person can show all reasonable step were taken to prevent this.

What happened

19. In 2017 the Council gave the Developer planning permission to develop over 100 apartments within a conservation area. The permission included the conversion and alteration of former industrial and commercial buildings.
20. Mr E rented one of the apartments in September 2018 and moved into the development. The agreement said he should have allocated car parking. However, the car park and pathways around his accommodation had not yet been completed. And so, Mr E asked his landlord and the Developer when this would be completed. He says he was told this would be completed soon after he moved in.
21. Mr E says he continued to raise his concerns to his landlord and the Developer, but this did not lead to the car park and pathways being completed as he was promised.
22. In January 2020, Mr E complained to the Council. He said the Developer had failed to comply with a condition to have completed the car park and pathways before the development was occupied as set out in the relevant planning permission. He said the car park was not tarmacked and the site around his apartment was muddy, full of rocks and the surface was in a poor condition. He also raised concerns about the safety of individuals and cars around the development due to the metal fencing, poor parking conditions, congestion, and skips.
23. In response, the Council spoke with Mr E and agreed to visit the site. Its planning officer also told Mr E she was aware the surface of the car park was less than adequate.
24. The Council considered the suitable next steps to investigate Mr E’s concerns. It decided:
    • Its planning Officer could serve a breach of condition notice, if a breach was found;
    • Its Housing Solutions Officer would inspect Mr E’s access to his apartment for hazards under the housing health and safety rating system (HHSRS) as set out in the Housing Act 2004;
    • Its Highways Officer would consider road access and congestions.
25. The Council Housing Solutions Officer inspected the site shortly after. However, he did not find that Mr E was subject to a category one hazard when accessing his apartment. Its Building Control also considered risks within the development, but decided the development was safe. And so, the Council told Mr E it would take no action on this matter.
26. Mr E disagreed with the Officer’s view and told the Council his girlfriend had fallen and hurt her knee on the uneven surface. He also said he was unhappy about the noise of the building works and asked the Council to put in place parking restrictions in the area to reduce the congestion and access issues.
27. The Officer asked his manager to review his findings. However, the manager agreed that no category one hazard was present. The Council told Mr E its Highways department would consider his concerns about access due to obstructions and congestions. Also, its Environmental Health Officer would consider the building works activities and noise within the development.
28. The Council’s Highways Officer considered Mr E access and congestion concerns for the development. However, he told Mr E the road to the development had not yet been adopted by the Council. He also said it would take a long time to get parking restrictions in place. This was because the Council would need to go through the process of implementing a Traffic Regulation Order. And so, he recommended for Mr E to speak to the developer to see if they could help.
29. In February 2020, the Council’s Planning Officer told the Developer that it was in breach of conditions as it had failed to complete the surfacing, lining and directional signage for the residential parking and circulation areas within the development. It asked the developer to respond to its concerns within seven working days.
30. The Developer told the Council it would do the surfacing for the car park and pathways in the spring. It explained that due to the complex nature of the development it had been completed in pieces, it had therefore not been practicable to lay the surface. It also said its engineer had said the best time to lay the surface was in spring. And so, the Council provided Mr E with the update.
31. Mr E was unhappy with the progress he had seen so far, so he brought his concerns to the attention of his local Councillor.
32. The Councillor visited the site and raised her and Mr E’s concerns about the development’s surface with the Council. This also included concerns about noise and waste management.
33. In response, the Council told the Councillor its view and actions so far. It also said its Pollutions Team had discussed noise concerns with the Developer, who had denied working outside the permitted hours. However, it said if further noise complaints were received it would monitor this.
34. The Council’s Planning Officer continued to put pressure on the developer to provide a completion date for the surfacing works of the car park and pathway. However, the Developer said due to the poor weather it would not be able to complete this until June 2020.
35. The Council acknowledged the Developers’ issues with the weather, but it said the development was now occupied and it had had a long time to complete the surface. And so, it told the Developer it would serve a breach of condition notice and expect the works to be completed by June 2020.
36. The Council also updated the Councillor and Mr E. It acknowledged Mr E was not happy with the delay but explained it had only been aware of the issue from January 2020.
37. However, before the Council could serve the Breach of Condition Notice on the Developer, the COVID-19 pandemic broke out. And so, in March 2020 the Council asked the Developer how this would impact on completing the surfacing by June 2020. It also told the Developer it will delay serving the Breach of Condition Notice due to COVID-19.
38. In response, the Developer told the Council its construction sites were closed due to Government guidance. It said it was therefore not possible to say when it would be able to complete the surfacing works. It also said it would now not be able to surface the car park areas. This was because the area was full of cars due to the Government’s stay at home policy.
39. The Council updated the Councillor accordingly and said completion of the works was now not possible by June 2020. And so, the Councillor updated Mr E.
40. Mr E was unhappy with the delay. He told the Councillor a development next to his was still continuing despite of COVID-19. He believed this was being developed by the same Developer. He also said he had issues with his landlord.
41. In April 2020, Mr E and the Councillor continued to be in contact. The Councillor told him the Council is ready to serve the Breach of Condition Notice. However, due to COVID-19, the surfacing of the car park cannot be completed by the developer. The Councillor also said the Council will review this once lockdown is eased.
42. In May 2020, Mr E told the Councillor the Developer had put a barrier in place at the road entering the development. He said another resident in the development had called an ambulance. However, it was unable to enter the development because the barrier was too low. And so, the Councillor asked the Council to investigate the issue.
43. The Council consulted with the Fire Services to find out if it had an issue with the barrier. It also inspected the barrier the following day. It decided the barrier may need planning permission. However, due to the way it was built and attached to the ground a Planning Inspector may not find planning permission was required. And so, the Council told the Developer about the issue with ambulances accessing the development and asked it to remove the barrier. The Council also asked the Developer for an update on the surfacing of the car park.
44. The Developer said it could not progress the surfacing of the car park as it was full of cars. It also said it had put up the barrier as it previously had issues with Travellers entering the site on two occasions. However, it explained its property management was available five days a week and it had an emergency number was available for resident to ask for help.
45. The Council was not satisfied with the Developer’s response. In addition, it was told a further ambulance could not access the development because of the barrier. It asked the Developer to remove the barrier by the end of the week or it would serve an Enforcement Notice.
46. The Developer agreed to remove the barrier and took it down shortly after.
47. In June 2020, the Council’s Planning Officer visited the development. She told the developer she had serious concerns about the car parking surface and parking on nearby roads. And so, she gave the Developer 14 days to provide the Council with a plan for it to complete the surfacing and warned a Breach of Condition Notice would be served. She also updated the Councillor.
48. In response, the Developer’s agent told the Council it wanted to complete the surfacing works. He said:
    • COVID-19 continued to cause issues, including the car parking being full, and so it was not possible to complete the works.
    • It had financial difficulties due to the impact of COVID-19 and it would therefore need to raise funds before it could complete the works.
    • It had issues with the eradication of the Japanese Knotweed from the site and needed more time to do so.
    • Should the Council serve a Breach of Condition Notice, it did not believe it would be valid or enforceable.
    • The Developer would therefore need a further 12 months to complete the works.
49. The Council considered the Developer’s response. It estimated it would take three months to complete the car park surfacing if the site were empty of cars. However, it also considered the Developers financial difficulties and the delays any court action against a Breach of Condition Notice would cause. And so, it decided to serve a Notice giving the Developer 28 days to comply with the conditions.
50. In July 2020, the Developer told the Council the Breach of Condition Notice was unreasonable and asked for it to be withdrawn. It said it had obtained funding to complete the surfacing works. However, based on advice from its Highways Engineer it would need up to 12 months more to eradicate the Japanese Knotweed.
51. The Council told the Developer that if it could show it was taking genuine steps to complete the car park, the Council could be lenient on the deadline. It also asked the Developer to explain the reasons for the delay in eradicating the Japanese Knotweed, as the method of doing so was set out in the planning permission documents.
52. In August 2020, the Councillor asked for an update from the Council and raised concerns the barrier has been put up by the Developer again.
53. The Council told the Councillor the actions it had taken and said the Developer was taking steps to complete the car park. It also said it was awaiting legal advice on against the Developer, but there were delays with this due to the impact of COVID-19. It explained it had limited actions it could take due to how the barrier was affixed to the ground, but it was working with the Developer to put in place a more suitable barrier.
54. Mr E was unhappy with the Developer’s failure to complete the car park and pathways and the actions the Council had taken. And so, he complained to the Council again.
55. In response the Council did not find fault in how it had handled the enforcement against the Developer. It said it had served a Breach of Condition Notice and the Developer had failed to comply with the Notice. It was therefore taking legal advice about criminal proceedings against the Developer. However, it was aware the Developer had a defence to proceedings because of its finance and issues with eradicating the Japanese Knotweed. The Council also said the court process was delayed due to COVID-19, but the Developer had said they were organising the surfacing of the car park.
56. Mr E was not satisfied with the Council’s response and asked it to consider his complaint under its final stage of its complaints process.
57. In September 2020, the Developer told the Council its finance for the works was being put in place and it had found a contractor to complete the surfacing of the car park. However, it was waiting to receive costings. It also said the method to eradicate the Japanese Knotweed was agreed in the planning documents. However, due to the amount of earth that had been moved during the development, its engineer was concerned about a recurrence of the Knotweed. It therefore suggested a further 12 months for any new Knotweed to show and be treated.
58. The Council asked the Developer to provide its engineer’s recommendations on treating the Knotweed and if it had considered any other options. It also asked the Developer to show it had monitored the Knotweed monthly from June 2020 and whether any new Knotweed had been found and treated.
59. The Developer provided a further update to the Council, but did not answer its questions. And so, the Council asked the Developer on two further occasions to respond.
60. The Council apologised to Mr E for its delay in responding to his complaint, but it was taking steps to resolve the matter and so it would respond to him as soon as possible.
61. In October 2020, the Council told Mr E it would respond to his complaint in four weeks as it would be in a better position to know the outcome of its discussions with the developer.
62. Mr E told the Council he was frustrated with the lack of progress and felt it did not treat his concerns as important. He also said the surfacing was being completed on land next to the development.
63. The Council acknowledged Mr E frustration. It explained it will respond to his concerns but there were delays due to the pressures of COVID-19 had on the Council. It told Mr E it would respond to his complaint one week later than planned and apologised for the delay.
64. In November 2020, the Council gave Mr E its final complaint’s response. It did not find fault in its planning department’s actions. It again explained the approach it had taken with the Developer. It acknowledged the impact COVID-19 had on the Developer and contractors since early 2020. It also explained it will chase an update from the Developer and that court action remains an option for the Council.
65. Mr E was not satisfied with the Council’s actions and responses to his complaint, and so he asked the Ombudsman to consider the matter.
66. The Council’s Biodiversity Officer has since considered the Developer’s plan to eradicate the Japanese Knotweed. She agreed it was reasonable to monitor the Knotweed for a season to show if any remedial measures are necessary.
67. The Council says it has regular meetings with the Developer until the Japanese Knotweed is eradicated. It will consider the options available to it, including legal action, should this be necessary going forward.
68. In early 2021, Mr E moved out of the development.

Analysis

69. Mr E complained the Council failed to take enforcement action against the Developer from late 2018. However, he did not complain to the Council until January 2020. Part of Mr E’s complaint is therefore late.
70. However, I am satisfied that it is appropriate to exercise my discretion and consider the Council’s handling of the planning conditions for the development since September 2018. This is because the Council has confirmed it considers the development a major development. Its policy says it will proactively monitor such developments. I would therefore expect the Council to do so without the need for residents to raise their concerns about breaches of key planning conditions.
71. In addition, Mr E continued to raise his concerns about the surfacing of the car park with the Developer and his landlord from late 2018 until December 2019. When this failed, he brought his complaint to the Council’s attention.

Planning enforcement between September 2018 and December 2019

72. The Council says it has monitored the development under its major site monitoring programme since 2016.
73. The planning permission set out the conditions the development had to comply with before it was brought into use. This included the completion of the surfacing, lining and directional signage for the residential parking and circulation areas within the development.
74. However, when Mr E moved into the development in September 2018, this condition was not complied with. And so, the Developer was in breach of the planning condition.
75. While I recognise the planning permissions for development was complex. I cannot see how the Council’s monitoring programme failed to identify the breach this planning condition. This is because the Council’s policy says it will proactively monitor the compliance with planning conditions for major developments. It should have been clear to the Council that the development was occupied. In addition, it was also clear the large parking area and pathways had not been completed. And so, this is fault. The Council should therefore have started its enforcement process in late 2018.

Planning enforcement between January 2020 to February 2021

76. Mr E complained the Council did not take enough action to ensure the Developer completed the car park and pathways around his home.
77. I acknowledge, Mr E remains unhappy about the time the Council’s enforcement process has taken and the car park is yet to be completed. However, I am satisfied the Council properly investigated and considered enforcement action in this period. And so, it is not at fault for its handling of the enforcement process.
78. In reaching my view I am conscious planning enforcement is discretionary, and the Council needs to make proportionate decisions. In doing so, the evidence shows the Council:
    • visited the site and agreed the Developer was in breach of the planning condition;
    • raised its concerns with the Developer and acted on the promises it made;
    • responded to Mr E’s and the local Councillors concerns and provided updates;
    • followed up on responses and delays by the Developer;
    • considered the impact COVID-19 had on the Developer and the availability of contractors and decided to delay serving the Breach of Condition Notice;
    • acted on concerns about the barrier at the entrance of the development and worked with the Developer and other services to resolve the matter;
    • served a Breach of Condition Notice when it considered this appropriate;
    • followed up on the Developers failure to comply with the Breach of Condition Notice and took legal advice;
    • considered the Developer’s reasons for not completing the car park and pathways, which included finance issues and the safe eradication of Japanese Knotweed;
    • considered other options for eradicating the Japanese Knotweed and its own Biodiversity Officer’s advice; and
    • has continued to work with the Developer to safely eradicate the Knotweed before completing the car park.
79. In addition, the Council also considered Mr E’s concerns about his and other residents’ safety in the development. Its Building Control inspection did not find enough risks to warrant further action by the Council, nor did its assessment under the housing health and safety rating system (HHSRS), as set out in the Housing Act 2004. And so, as the Council properly investigated Mr E’s concerns, I cannot criticise the merits of its decisions.

The Council’s communication with Mr E

80. Mr E also said the Council failed to keep him informed about its progress with the Developer. The evidence shows the Council responded to Mr E’s complaint, told him who would be investigating his complaint and inspected the development. When Mr E’s local Councillor became involved, it agreed to update the Councillor, who in turn would keep Mr E updated. The Council continued to provide updates to Mr E’s Councillor when she asked for this.
81. I acknowledge the Council’s updates were mostly not positive as there was no progress in the surfacing of the car park. However, I am satisfied the Council shared the information it could in the circumstances with Mr E and his Councillor as set out in its Policy.
82. In addition, the Council responded to Mr E’s complaints about the Council’s handling of the enforcement process. There were delays in its final complaint response. However, it apologised to Mr E and gave him reasonable reasons for why its response would be late. And so, I have not found fault in how the Council communicated with Mr E, nor how it handled his complaint.

Injustice

83. I found fault with the Council for its failure to start its enforcement process in late 2018. This caused a delay as it did not start the process until Mr E complained. Although, I cannot say what the outcome of the Council’s enforcement process would have been. I would expect it to have followed the same approach it took from January 2020. And so, on balance the period the Council agreed for the developer to eradicate the Knotweed and complete the car park is likely to have started sooner.
84. I am satisfied this caused Mr E some distress and uncertainty. I am also satisfied Mr E had time and trouble to bring his concerns to the Council’s attention.

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Agreed action

85. To remedy the injustice the Council caused to Mr E, the Council has agreed to, within one month of the final decision:
    • 1. Apologise to Mr E in writing for its failure to start its enforcement process in late 2018;
      2. Pay Mr E £500, to use as he sees fit, to acknowledge the distress and uncertainty he experienced.
      3. Pay Mr E a further £100 to acknowledge the time and trouble in trying to get the Council to comply with the law and its own policy.
86. Within three months of the final decision the Council should also:
    • 1. Remind its Compliance Team’s staff of its responsibilities to monitor and investigate breaches of planning conditions as set out in the law and its own policy.

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Final decision

87. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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