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London Borough of Southwark (21 000 039)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 27 Mar 2022

The Ombudsman's final decision:

Summary: Ms H complained the Council did not take enforcement action about a breach of planning conditions and a noise nuisance. It also delayed responding to her. The Ombudsman upholds the complaint, because of some fault in the Council’s communications with Ms H. The Council has agreed to apologise.

The complaint

  1. The complainant, whom I shall refer to as Ms H, complains that:
    • the Council’s planning team did not take enforcement action against a developer who consistently breached the terms of its construction management plan;
    • the Council’s Noise and Nuisance Team and Environmental Protection Team did not respond properly to her reports of noise nuisance and vibration from the construction site;
    • monitoring forms the Council sent her showed many vibration levels way outside the permitted levels. Yet the Council did not take any action;
    • there were delays in responding to her complaints.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Ms H;
    • made enquiries of the Council and considered its response;
  • spoken to Ms H;
  • sent my draft decision to Ms H and the Council and considered the responses I received.

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What I found

Legal and administrative background

Planning Enforcement Law

  1. Councils often impose construction management planning conditions on approvals for major developments. Typically, the aim of these conditions are to reduce the impact and disruption caused by:
  • long working hours on construction sites;
  • nuisance from noise, dust, smoke and vibration; and
  • traffic from construction vehicles.
  1. Councils can take enforcement action if they find planning rules (such as planning conditions) have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says: “Effective enforcement is important as a means of preserving 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 2018, paragraph 58)

Business and Planning Act 2020

  1. The Act introduced a temporary way for developers to modify their hours of permitted working. The measures were one of the government’s responses to the COVID-19 pandemic and its consequential need for changed working practices.

Environmental protection

  1. Councils have options outside their planning powers to deal with problems caused by construction. A council can take action over serious harm caused by noise, vibration or dust pollution from work on building sites. (Control of Pollution Act 1974)
  2. Councils also have powers to deal with a statutory nuisance. Noise or vibration emitted from a building site that is prejudicial to health or a nuisance would constitute a statutory nuisance. If someone complains about a statutory nuisance, the Environmental Protection Act says a council must “take such steps as are reasonably practicable to investigate the complaint”.

What happened

  1. I have reviewed all information relevant to this complaint, but have only referred to key points below.
  2. As a planning condition for a new development, near to Ms H’s home, the Council required a construction management plan (CMP) which included plans for managing and monitoring noise, vibration and dust.
  3. The approved CMP:
    • had the working hours of the site as 8:00 – 18:00 on weekdays and 8:00 – 14:00 on Saturdays;
    • noted if the developer needed to work outside those hours, it would request this from the Council;
    • agreed to place monitors on the site boundary, to record noise and vibration;
    • had a liaison and good neighbour policy, including a requirement for the developer to advise neighbours of planned works and any impact they would have on them.
  4. Work on the site started towards the end of 2020. A few days after, Ms H contacted the Council’s Noise and Nuisance Team and Environmental Protection Team about the noise and vibration from the site. And that work was starting from 7:30 and continuing after 18:00. She advised the vibration had caused damage to her home.
  5. The following day a Council officer (whom I shall refer to as Officer 1) advised Ms H he would contact the developers about her complaint. Officer 1 wrote to the developer asking for its comments on Ms H’s issues. He sent Ms H a copy of the email and asked her to contact the developer directly about the damage she had mentioned.
  6. In early 2021 Ms H complained. She says this was after problems in getting the Council to respond to her contacts.
  7. At the end of January an officer (Officer 2) from the Council’s Environmental Protection Team responded. He advised:
    • the developer was aware of her complaint and had asked its surveyor to contact her about the damage to her property;
    • the developer said vehicles arrived on site from 7:30 but work did not begin until 8:00;
    • the Council had not been able to carry out inspections, due to COVID-19 restrictions;
    • the Council would not share with Ms H (as a third party) monitoring information the developer might send it;
    • of the contact details for the Council’s Noise and Nuisance Team. If Ms H contacted that Team, it could visit to assess whether the noise and vibration from the site was enough to take action;
    • he had passed part of her concerns onto the Council’s planning department.
  8. Ms H disputed what the developer had told Officer 2. She said she had video evidence of work continuing as late as 19:30.
  9. In February 2021 an officer (Officer 3) from the Council’s planning department responded to Ms H to advise her:
    • the Council did not have the technology to accept her video evidence. But her emails were sufficient notice of an alleged breach of the planning conditions;
    • the damage Ms H was alleging the works had caused her property was a private matter between her and the developer;
    • he would liaise with the Council’s Environmental Protection Team about the vibration and noise monitoring.
  10. Later in the month another planning officer (Officer 4) was in contact with the developer about the issues Ms H raised. She asked whether it had engaged with neighbours, as required by the CMP. The developer’s response noted it had only received one other complaint. It said it had engaged with immediate neighbours as the CMP required. But its surveyor would contact Ms H.
  11. In May Officer 3 responded to Ms H’s complaint. He had spoken to officers in the Council’s Environmental Protection Team. They advised they had had a site meeting with the developer. The complaint response:
    • advised the planning authority was not aware if Ms H had contacted the Council’s Noise and Nuisance Team;
    • advised the developer said it had contacted its immediate neighbours;
    • attached noise, vibration and dust monitoring records. Ms H had earlier sought them, but the Council delayed while it clarified whether this was confidential information;
    • advised it was unavoidable the developers would occasionally need to work outside of permitted hours. Officers were in frequent contact with the developers and had raised Ms H’s concerns.
  12. Ms H asked to escalate her complaint. She asked if the Council had considered the monitoring information it had sent her. Her understanding was the data showed noise and vibration above permitted levels on many occasions. She advised she had videos showing work outside the permitted hours. Officer 4 sent Ms H’s contact to the developer.
  13. In July the Council’s Noise and Nuisance Team contacted the developer after Ms H told it about early site working. The developer noted it had permission from the Council under the 2020 Business and Planning Act (see paragraph 7) to work outside the normal working hours. Noise and Nuisance Team officers visited but did not witness any noise that was enough to warrant action against the developer.
  14. Later in the month the Council provided its response to Ms H’s complaint at the second stage of its complaints procedure. It advised:
    • to take enforcement action against a breach of the CMP the Council would need to show the developer was consistently breaching it without valid reason. This was because, to get a court to award an enforcement order, the Council would need to prove ‘wilful disregard’ of the agreement. Its planning team’s view was it did not have enough evidence to warrant action;
    • enforcement action against noise issues also needed robust evidence. And it was difficult for its officers to witness potential statutory noise nuisances. The nature of the noise meant it had often stopped by the time an officer arrived to witness it;
    • the developer had accepted it had not contacted Ms H. But it told the Council it had now offered to meet her and discuss the issues she had raised;
    • it apologised about its complaint response and recognised it should have kept Ms H updated about the reason its stage one complaint response was delayed.
  15. Ms H complained to the Ombudsman. In response to my enquiries, the Council advised:
  • “It was not necessary to take action [about any breaches of the CMP] given the efforts put forward by the developer to alleviate any additional disturbance to the residents. The issues were not consistent and the developer provided reasons for working later or instances of excessive noise. Taking action to halt the development would not have been a proportionate response given the minor issues and actions already being taken by the developer.”
    • from June 2021, the Council allowed the developer to work beyond the permitted working hours (from 7:00 to 19:00). This was following the changes introduced in the 2020 Business and Planning Act. But it stressed to the developer it needed to contact neighbours, specifically naming Ms H.

Analysis

  1. Clearly, it has been frustrating for Ms H to have had the disturbances she reports. However, the Ombudsman’s task is to consider whether there was fault in the way the Council dealt with this matter.
  2. The Council had two routes to take action over Ms H’s concerns: investigating a breach of planning conditions. Or through environmental health powers to deal with excessive noise and vibration.
  3. 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. And that these breaches cause demonstrable harm to the public.
  4. Ms H has evidence of work continuing later than the agreed end time. I accept the developer has, likely, at times worked outside of the agreed hours – Ms H’s evidence shows that. But that is not the same thing as saying there was a breach of the CMP, sufficient to warrant formal enforcement action. Government guidance says any action has to be proportionate. The Council’s view was the developer’s actions were sufficient to address, what it described, as minor issues. The Council’s files show it contacted the developer in November 2020, February and June 2021 in response to Ms H’s concerns. I consider this to be proportionate action.
  5. I can also see the Council’s Environmental Health Team (including its Noise and Nuisance Team) contacted the developer on multiple occasions. But it did not find evidence of noise or vibration that was enough for it to take action as a statutory nuisance.
  6. So, on the balance of probabilities, the Council did do enough to provide a proportionate response to Ms H’s concerns. But it did not give her sufficient information about what it had done. My view is that that lack of information amounts to fault. This fault can be found throughout the Council’s contacts with Ms H – in both complaint responses and other communications.
  7. As the Council has already acknowledged, its lack of updates about delays to its stage one complaint response was fault.
  8. The Council’s stage one response says the developer had advised the Council it had contacted immediate neighbours. It seems likely this contact was only with those neighbours living very close to the site, so did not include Ms H. Later the Council did ask that the developer specifically alerted Ms H (see paragraph 24). My view is the reference to ‘immediate neighbours’ could have earlier alerted the Council to clarify with the developer how it was fulfilling a requirement of the CMP. And that it needed, specifically to contact Ms H. The delay in asking the developer to do this was fault.
  9. The Council sent Ms H the developer’s noise and vibration monitoring information with its stage one response. But it did not provide any analysis of that information. At the latest, I would have expected to have seen this after Ms H had asked for the Council’s response to her view that the reports showed evidence of a breach. To not do this was fault.
  10. The injustice to Ms H is that she was not kept informed by either the Council or the developer of the works and reasons for working outside the CMP. This will have led to some frustration for her, as she would not have known the reasons for, or given notice of, works that were happening.

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Agreed action

  1. The Council could have done more to respond to Ms H’s concerns. And to seek to ensure the developer was liaising with the neighbourhood. The Council has agreed that, within a month of my final decision, it will write to Ms H apologising for the faults and the injustice.

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Final decision

  1. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. Ms H describes how she has experienced damage to her home from the construction work. I agree with the Council this is a private matter between her and the developer. So I have not investigated the events around that issue.

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Investigator's decision on behalf of the Ombudsman

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