Summary: Ms X complained about the Council’s failure to take enforcement action over construction work near her home which are operating outside approved times. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

The complaint

1. The complainant, whom I shall call Ms X, complains about the Council’s failure to prevent construction work on a nearby development from creating noise outside hours set out in conditions of the planning approval. She says she has suffered from loss of sleep in the early morning and her baby’s sleep is also disturbed outside the approved hours.

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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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I have considered all the information which Ms X submitted with her complaint and she has commented on the draft decision.

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What I found

4. Ms X lives near a site which has planning consent for development. She says when construction work began, she said she was disturbed by the noise which took place outside agreed working hours of 8:00am to 6pm weekdays and less hours on Saturdays.
5. Ms X complained to the Council and it carried out planning enforcement visits at earlier time and evenings outside the permitted hours. It says its officers did not note any construction noise which would amount to a breach of the conditions. Councils have discretion to take enforcement action over breaches of planning regulations. However, they must ensure that there is sufficient evidence of a breach because the enforcement notices can be appealed by the developer to the Planning Inspectorate. This does not apply to breach of condition notices, but they may only be served where there is sufficient evidence of a breach.
6. The Council told Ms X that it would continue to monitor the site and would take action if there was evidence of a breach to warrant it.
7. 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. In this case the Council carried out its inspection function but cannot take action without sufficient evidence.

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Final decision

8. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman