Summary: Mr X complains about planning processes, planning decisions and an enforcement decision made by the Council. We have concluded our investigation having made a finding of fault. We found that an issue with the Council’s internal mapping service led to Mr X not being notified about a planning application, and that the matter has not yet been unresolved. We have not seen evidence of further fault regarding planning processes, planning decisions and enforcement decisions made by the Council. The Council have agreed to our recommendations.

The complaint

1. Mr X complains about planning processes, planning decisions, and an enforcement decision made by the Council. Mr X says the decisions reached by the Council have not followed the correct procedure and wants the Council to ensure it follows statutory processes in the future.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 spoke with Mr X and considered the information he provided. We also considered information provided by the Council at our assessment stage and considered information from its planning portal. Mr X and the Council will now have a two-week opportunity to comment on my draft decision. I will consider any comments submitted before making a final decision.

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What I found

Relevant law and guidance

Planning permission

7. Planning permission is required for the development of land (including its material change of use).
8. Planning permission may be granted subject to conditions relating to the development and use of land.
9. Planning permission may be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.

Different types of applications

10. An outline planning application is used to gain an understanding as to whether the nature of a development is acceptable, which can help ensure viability up front.
11. A reserved matters application is only required when an applicant already has outline planning permission for a development. This cannot be used as a stand-alone application for planning permission.
12. After approval of outline planning consent, reserved matters must be submitted to gain the right for development. This deals with the outstanding details which were omitted from the outline planning application.

Publicity for planning applications

13. Councils are required to publicise planning applications.  The publicity required depends on the nature of the development and the council’s own policies. In all cases the application must be published on the council’s website.

National Planning Policy Framework (NPPF)

14. The National Planning Policy Framework sets out government's planning policies for England and how these are expected to be applied.

Planning enforcement

15. 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.
16. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers. 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.
17. 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 July 2021, paragraph 59)

Our published guidance on good administrative practice

18. This guidance sets out the standards we expect councils to meet when we investigate their actions.
19. The principles include being open and accountable. Councils should be open and clear about policies and procedures and ensure information and advice provided is clear, accurate and complete.

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What happened

Background

20. There are several planning applications relevant to this complaint.
• Planning Application A is an application for online consent for up to one dwelling. Planning Application A was approved in December 2018.
• Planning Application B is an application to convert and add a small extension. Planning Application B was approved in April 2022.
• Planning Application C is a reserved matters application following outline approval of Planning Application A. Planning Application C was approved with conditions in July 2022.
21. 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.

Stage 1 complaint

22. In May 2022, Mr X wrote to the Council. Mr X raised concerns with Planning Application C. It is acknowledged in Mr X’s correspondence that he also had raised an enforcement complaint regarding Planning Application B prior.
23. In July 2022, the Council wrote to Mr X, informing him that it had initially closed the enforcement case, coming to a decision that it could not identify any material planning harm as to warrant further action being taken. However, following further concerns raised by Mr X, the Council had reopened the case and was investigating further. The Council also said it considered Mr X’s planning complaint, acknowledging that he had been consulted and a site notice sent out.

Stage 2 complaint

24. Unhappy with the Council’s response, Mr X escalated his complaint to Stage 2 of its complaints process.
25. Mr X expressed dissatisfaction with how the Council responded to concerns raised about Planning Application C and the enforcement case concerning Planning Application B.
26. Mr X set out a number of concerns with how the Council handled Planning Application C. Mr X also set out a number of concerns with its decision not to take enforcement action regarding Planning Application B.
27. The Council, in summary, responded to Mr X’s concerns, explaining its reasons for the decisions it reached regarding Planning Application C, and its decision not to take enforcement action regarding Planning Application B.

Complaint to the Ombudsman

28. I recognise Mr X’s complaint to the Council was comprehensive and addressed a range of specific points regarding the planning applications and enforcement decision. During the course of my investigation, I asked Mr X to consolidate his points of complaint. With those of which we can investigate, and of those that Mr X had previously complained to the Council, he said the Council:
• did not notify him of planning applications;
• did not place site notices;
• determined applications that were invalid;
• insufficient due diligence given to material considerations;
• failed to acknowledge case law;
• received an inadequate response from its Enforcement service, and
• did not handle his complaint correctly.
29. I consider these in turn.

Analysis

Failure to notify

30. Mr X complained to the Council that it failed to notify him of applications as it should have, dating back to 2017. As per paragraph 3, it should be noted that the total period of time that Mr X complains about does not fall into the scope of my investigation. Mr X said that the failure to notify him of applications denied him his right to representation. However, having viewed the Council’s planning portal, I can see that Mr X made comments on Application C, so the injustice Mr X alleges does not apply.
31. The Council accepts that Mr X was not notified of Application C, and said its internal mapping had not been updated. The Council provided Mr X with details of how he could set up alerts so not to miss notification of any future applications. The Council said it would refer the matter to its mapping team so the appropriate records could be updated. This is fault by the Council, however, given the absence of injustice to Mr X concerning Planning Application 3, I consider it is sufficient only for the Council to provide an apology to Mr X. Mr X has also said that he has still not been notified about subsequent applications and this is the injustice I recognise to Mr X. The Council should take steps to resolve the matter, ensuring Mr X is formally notified about future applications as he should be.

Site notices

32. Mr X says the Council failed to erect site notices. The Council informed Mr X that the minimum publicity for most types of developments is a site notice or to notify the neighbours. The Council says site notices are required only for applications where specific conditions are met, which in this instance was not applicable. The Council informed Mr X that it had sent letters to the neighbouring properties that were immediately adjoining the site.
33. I have not found fault in the Council’s decision not to erect site notices. The Council considers that these were not required for this type of application, and that it had sent letters to the neighbours to notify them.

Determined application that was invalid

34. Mr X alleged the Council determined an application that was invalid as it did not have the correct information.
35. The Council said it acknowledged the north arrow direction as an initial minor and that it had been resolved during assessment of the application with the submission of updated plans. Mr X disputes that these were corrected, but the Council informed Mr X that the redlines were amended by the applicant and were consistent with those drawn in Planning Application A. Mr X says the application should have been invalidated and the applicant made to submit an application with the corrected amendments.
36. The Council’s guidance on the matter demonstrates that the Council has discretion to accept amendments after an application has been validated. It is Mr X’s view that the conditions required to accept amendments were not met, but that is a matter of judgement for the Council. In any event, I cannot see a significant injustice that has impacted Mr X as a result of this application being determined when it was.

Material considerations

37. Mr X said the Council did not give due diligence to material considerations. I take this to mean that Mr X is of the view that the Council did not sufficiently consider material matters. Mr X says in his complaint that there are problems regarding access routes and ownership that could impact upon the safety of other highway users. Mr X said the effect on the routes around the site was a material consideration that was overlooked by the Council.
38. The Council said it fully considered access and highway safety in its delegated report. The Council’s report assesses the highway safety and access implications and was discussed with the Council’s Highways Officer. The Council concluded that the proposal is considered acceptable in highway safety terms and aligned with the requirements of relevant policies.
39. Mr X said that a comprehensive assessment of the history had not been considered. Mr X said that checking the history of any site is a material consideration and vital for the Council to do.
40. In the Council’s report, it gave consideration to clashing permissions, referencing relevant nearby sites and applications, therefore demonstrating the Council has given consideration to relevant planning history. It is for the Council to decide on what weight to give to the planning history, and I have not seen evidence of fault.

Case law

41. Mr X said the Council failed to understand the implications of case law regarding overlapping applications. The Council informed Mr X that the case law is not considered to be of such weight as to determine that Planning Application C should be refused. The Council informed Mr X that it had considered the principle in the case law, but that it was ‘not of the view that this results in the outline permission being unlawful as it was concluded that the development could be undertaken fully in accordance with the permission’.
42. It is not for our service to comment on the weight a Council should give to any consideration. From the evidence I have seen, the Council considered Mr X’s comments, considered the case law in question, and came to a view that this did not impact upon the planning permission. This is a view the Council was entitled to make, and it is not for our service to intervene.

Enforcement matters regarding Planning Application B

43. Mr X says he received an inadequate response from the Council’s Enforcement service. Mr X complained that the development was not as approved in the original planning application. Mr X said that it did not utilise the approved access, was different to the approved design and that the garden area had been extended.
44. In the course of the Council’s enforcement investigation, it concluded that:
1. It recognised that the development was not as approved, but that the dwelling was supported in principle by policy, and that it was built to similar dimensions and appearance of that approved. The Council said it could not identify any material planning harm which would warrant further action being taken.
2. It had spoken with the site owner, who explained access issues and how access was being utilised, but that in the absence of any material planning harm that it would not take any further action.
3. Although it recognised the garden area has been extended, the extended area has outline planning permission and that it would therefore be for the landowner to adjust any boundaries between the properties.
45. I have not seen any evidence of fault. The Council considered concerns raised by Mr X and undertook a visit to the site for inspection. The Council concluded that it would not take any further action; this is a decision the Council is entitled to make, and it is not for our service to intervene in decisions that have not been impacted by fault.

Complaint handling

46. Mr X says there was delay in how the Council handled his complaint. I understand Mr X’s correspondence in May 2022 was first registered as a Stage 1 complaint and responded to in June 2022. Mr X escalated his complaint to Stage 2 of the Council’s complaint process in July 2022, and received a response in September 2022.
47. I have viewed the Council’s guidance for complaint handling, and it says it will attempt to resolve a complaint at Stage 1 of its complaints process in 10 working days. At Stage 2 of its complaints process, the Council says it will attempt to resolve a complaint within 20 working days. In either instance, the Council says it will agree a new timescale where there is going to be delay.
48. The Council responded to Mr X’s Stage 1 complaint 22 working days later, exceeding its target by 12 working days. The Council responded to Mr X’s Stage 2 complaint 42 working days later, exceeding its target by 22 working days.
49. Mr X’s complaint was comprehensive and complex, and I acknowledge the time taking to respond to Mr X’s complaint exceeded its target. However, the Council has confirmed that it complied with its complaints process by writing to Mr X to inform him that additional time was required. I understand the Council did not hear back from Mr X, but the additional time taken was proportionate to the complaint being investigated given its complexity, and I have not made a finding of fault.
50. Mr X also complained that the Council were not clear in the outcome of its complaint investigation. Mr X said the Council told him his complaint was partially upheld but did not specify what parts. It is my view that the Council’s acknowledgement and apology to Mr X for not initially consulting him about Planning Application C is indicative of which part of the complaint it upheld.

Summary

51. I found that although Mr X was not formally notified about a Planning Application C, this did not cause him a significant injustice. However, Mr X says he has not been notified about subsequent applications and this is the injustice to Mr X that I acknowledge. The Council should ensure this is resolved so Mr X can be notified about any relevant applications as he should be.
52. Mr X fundamentally disagrees with the Council’s approach and decisions it has reached, but I have not seen evidence of any further fault, nor evidence as to demonstrate a lack of compliance with local and national planning policies.
53. We expect Council’s, as is good administrative practice, to be transparent and accountable for the decisions it makes. From the evidence I have seen, the Council has provided just rationale for its processes and decisions, and it is not for our service to intervene just because someone disagrees, but only when there is evidence of fault.

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Agreed action

54. To resolve matters, and prevent similar occurrences in the future, the Council should:
1. Explain what it will do to resolve the matter that is preventing Mr X being notified about planning applications. I understand this to be updating its internal mapping service.
2. Provide an apology to Mr X for failing to notify him as it should have. The apology should be in line with our published guidance on remedies.
55. The Council will complete action point a and b within one month of the Ombudsman’s final decision.

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Final decision

56. I have concluded my investigation having made a finding of fault. I found that an issue with the Council’s internal mapping service led to Mr X not being notified about a planning application, and that the matter has not yet been unresolved. I have not seen evidence of further fault regarding planning processes, planning decisions and enforcement decisions made by the Council. The Council have agreed to our recommendations.

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Investigator's decision on behalf of the Ombudsman