Summary: Mr X complained the Council failed to take planning enforcement action after he reported breaches of planning conditions on sites near his home. There was no fault in the Council’s enforcement decision making process.

The complaint

1. Mr X complained the Council failed to protect his amenities after he reported breaches of planning conditions relating to construction works on sites near his home.
2. Mr X also complained about the Council’s responses to his complaints and enquiries, many of which went unanswered.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. 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

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including planning conditions and a summary of enforcement action provided by the Council. I did not ask to see every document or record of every communication the Council holds, as this would not have been a proportionate request.
6. I gave Mr X and the Council an opportunity to comment on my draft decision and took account of the comments I received before making a final decision.

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What I found

Planning permission law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
8. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
9. Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by:
• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and
• traffic from construction vehicles.
10. While construction management conditions may help lessen the impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
11. Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served using powers under the Control of Pollution Act 1974.

Planning enforcement

12. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of planning control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
13. Government guidance says formal enforcement powers should be used proportionately. Councils are encouraged to resolve issues through negotiation and dialogue with developers before resorting to formal action.
14. 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.
15. 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.

What happened

16. The Council approved planning applications on several sites near Mr X’s home. The approvals were subject to conditions requiring construction management plans.
17. Mr X complained that he has reported breaches of planning conditions relating to construction management conditions, but the Council has failed to take enforcement action.
18. I was aware that the Council had received a large number of emails and calls about the site, so I did not ask for every record, but enough to show the main events and outcomes. The Council provided a detailed chronological summary, which I shared with Mr X.
19. The details show that before it decided whether or how to act, the Council took account of:
• Allegations of breaches reported by the public;
• Its enforcement powers as a planning authority; and
• Where it found breaches of planning conditions, the potential for harm caused to the public.
20. On two occasions, the Council served Breach of Condition Notices. At other times it accepted assurances from the developer and decided not to take formal enforcement action.
21. Mr X also complained about the Council’s failure to respond to his complaints and enquiries.
22. In response to my enquiries, the Council recognised that it has not met its usual service standards, particular at Stage 1 of its process. It said, the reasons for this in recent years are as follows:
• The planning enforcement service was affected by the effects of COVID-19;
• Stage 1 responses come from within the relevant department, and the Council, like other authorities, is finding it difficult to find and keep qualified planning enforcement officers. The staff shortage has led to service difficulties including delays in response times.
23. The Council said it is sorry any difficulties this caused, but it cannot know when it will be able to recruit the staff it needs and provide the levels of service it wants.

My findings

24. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and if we find it, we decide whether it caused an injustice to the complainant.
25. The evidence shows that, before it made its enforcement decisions, the Council considered allegations from the public, its enforcement powers and whether harm was caused to the public by any breach. There was no evidence of significant delays by the Council or failure to act once decisions were made.
26. The Council has followed the decision making process we expect and so I find no fault in the way the Council has made its enforcement conditions. As there was no fault in the process it followed, we cannot question the Council’s enforcement decisions.
27. The Council has explained why its has not met its usual complaint and enquiry service standards and this could be fault. I have decided not to investigate this part of the complaint further and my reasons are as follows. We are a stage beyond the Council’s complaints process and provide independent oversight of its acts and omissions. Its complaints processes give it an opportunity to put things right when things go wrong. If it misses this opportunity, we can investigate and resolve fault we find. We also keep note of problems in complaints handling and may address these issues in our annual reviews of a council’s performance.

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Final decision

28. I completed my investigation as there was no fault in the Council’s planning enforcement decision making-process.

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Investigator's decision on behalf of the Ombudsman