LGO urges district council to pay £25k to complainant after planning action

The Local Government Ombudsman has recommended that South Holland District Council pay £25,000 to a complainant over a botched planning enforcement action.

The LGO, Anne Seex, also called on the local authority to make an unreserved apology to the representatives of housing developer Nestwood Homes.

In a report published today (13 April) she found that the enforcement action was contrary to legal advice South Holland had received as well as national planning policy guidance.

The background to the investigation was that a council officer had approved plans submitted by Nestwood to meet a planning condition. However, in approving those plans the officer inadvertently gave permission for raising the land levels on the site. This meant the new houses were built higher.

Neighbours objected to this and so South Holland sought counsel’s opinion. This advice was – in the LGO’s words – “clear and unambiguous” in saying that the authority had granted planning permission for raised land levels. The opinion said that the council could, by funding an individual councillor to take proceedings, seek a judicial review asking the High Court to quash the approval.

It was left to relatively junior officers to consider counsel’s opinion and decide what action to take.

Counsel for South Holland drafted a letter to be sent to Nestwood. It differed from the opinion in a very significant way, the LGO found – whereas the opinion had advised that the planning permission was “not void but voidable”, the letter said that the permission was “void and voidable”.

Nestwood carried on with the development. Reports were submitted to the Planning Control Committee in November 2006, February 2007 and March 2007 and there was a site visit by the committee in December 2006.

At the March 2007 meeting, the committee decided to take enforcement action. This required four properties, three garages and much of the boundary walls and fencing to be demolished.

Prospective purchasers of the houses were put off by local publicity and information provided by the council in response to local searches after enforcement action was agreed.

Nestwood appealed against the enforcement notices to the Secretary of State. A Planning Inspector ruled in March 2008 that South Holland had granted permission for the raised levels. He ordered that the council should pay all the costs of the appeal, saying “in light of their own counsel's advice that enforcement action in relation to the raising of levels ... would be unlikely to succeed, and the relatively weak case put forward... I consider that the council behaved unreasonably in defending the appeals”.

Nestwood complained to the Ombudsman about South Holland’s actions. The company director responsible for the development made a number of claims, including that he suffered significant stress, family relationships were strained, and employees were at risk of redundancy.

It was also argued that Nestwood had been vilified in the media and its reputation severely damaged. Its additional costs and commercial losses also amounted to £1.2m.

The LGO concluded that the council acted with maladministration, causing “considerable injustice” to Nestwood, in:

• “failing to ensure that counsel’s opinion was properly and corporately considered by suitably qualified and senior officers
• failing to properly consider whether to adopt the draft letter to Nestwood provided by counsel when it held out counsel’s advice to be that approvals were ‘void and voidable’ when the actual advice was that the approvals were ‘…not void but voidable’
• failing to present issues to the Planning Control Committee in clear and comprehensible reports and failing to guide the committee
• misrepresenting counsel’s advice in reports to the committee
• failing to provide the committee with clear explanations or advice before or at a site visit about what was, wasn’t or might be unauthorised with the result that the members who attended the site visit were not able to address their minds to the relevant issues
• prevailing upon Nestwood to submit a fresh planning application without being clear about what aspects of the development were unauthorised and when officers knew that most of it was authorised by planning approvals
• purporting to follow counsel’s advice to seek a planning application leading to a sensible compromise without addressing what would represent a ‘sensible compromise’
• making recommendations to the committee about the extent of enforcement action that did not accord with the officers’ professional views and with national planning guidance
• failing to give proper consideration to use of enforcement powers at the March 2007 committee meeting because a significant number of members had already determined their views and were influenced by negative interpretations of Nestwood’s actions which were unsupported by any evidence.”

The Ombudsman recommended that in addition to paying £25,000 to the company director, South Holland should arrange for the chief executive and chairman to deliver an apology in person to Nestwood’s representatives and publish that apology on its website.

Seex also called on the council to appoint a suitably qualified independent accountant to assess “the losses incurred by Nestwood from interest payments on loans taken out because of the situation, professional fees incurred in relation to the enforcement action, the costs of maintaining unsold properties on the development and solicitor's costs in making the complaint”.

South Holland chief executive Terry Huggins said the council had three months in which to consider the Ombudsman's report. "It is proposed that it will be considered by the June council meeting. No further comment will be made by the council in advance of this."

Philip Hoult