Summary: Mr X complains the Council failed to properly investigate reports he made about noise and breaches of a construction method statement agreed by a contractor for a large development near to his home. We found there was fault by the Council that warrants a remedy to Mr X.

The complaint

1. Mr X complains the Council failed to properly monitor a large construction project close to his home which included changes to the road network. He complains the Council did not properly enforce planning conditions which sought to control site operating hours and noise. He also complained the contractors failed to work in accordance with their agreed method statements and no action was taken about this.
2. Mr X complained the work caused significant noise and dust nuisances and he has been unable to use his garden. He also complained about traffic issues and that his driveway was regularly blocked.
3. He says the Council failed to respond to his concerns, which meant he had to repeatedly chase it for answers, eventually asking his local councillor for help.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I considered Mr X’s complaint and the information he provided to us. I considered information provided by the Council, its actions and the law. I took account of its response to Mr X’s complaint.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning Permission and Conditions

8. Planning permission is required for the development or change of use of land. When granting permission this is generally subject to planning conditions to control what development is allowed and how the applicant can go about it.

Planning Enforcement

9. 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. 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)

Government Guidance; changing planning conditions about construction working hours

10. The government issued a ministerial statement in May 2020 recognising that construction companies needed to be able to adapt practices and working hours due to the COVID-19 pandemic. It stated local authorities should respond swiftly and positively to requests for flexibility around working hours. The government issued specific draft guidance in June 2020. This became law in July 2020.
11. The guidance stated that Section 74B of the Town and Country Planning Act 1990 provided a temporary, fast track route for developers to apply to vary existing planning conditions that limit construction site working hours. Local authorities have 14 calendar days to consider such applications. If a local authority does not respond within 14 days the revised working hours are deemed to have been approved.
12. If an application is approved, it would temporarily amend planning restrictions on construction working hours until 1 April 2021, unless either another earlier date has been requested or agreed with the applicant.
13. The guidance:
• stated that local authorities should not refuse applications to extend working hours to 21:00, Monday to Saturday without very compelling reasons. However, it says an authority may wish to propose minor changes which should be agreed in writing with the applicant.
• encouraged the applicant to provide proportionate mitigation plans and say how they intend to liaise with neighbours and manage the effects on residents or businesses. The guidance gives examples such as limiting noisy works to within usual hours, undertaking quieter activities in the morning or evening or agreeing changes to parking provisions.
• additional disturbance may be unsuitable for certain sites seeking to recover from the COVID-19 pandemic. It lists hospitals, care homes, broadcasting studios and places of worship as examples. It also refers to sites in close proximity to residential areas where the request for changes in hours are likely to be contrary to Section 79 of the Environmental Health Act 1990 or Section 60(4)(d) Control of Pollution Act 1974.
14. There was no requirement for a local authority to publish or consult on applications for revised working hours.

What Happened

Construction Works

15. Mr X’s complaint concerns a large development project including demolition of existing buildings and the construction of numerous large multi-storey buildings. The development was approved in Spring 2019. It was to be carried out in phases and it was subject to numerous planning conditions.
16. Condition Six limited hours of construction to 7:30 to 18:00 Monday to Friday and 07:30 to 13:00 on Saturdays. No construction work was to take place on Sundays or Bank Holidays.
17. Condition Seven stated that noise from plant and machinery (but not that used for construction) should not exceed 5dB over the existing background noise level.
18. Condition 16 required that a Construction Method Statement be submitted and that it be adhered to throughout the construction period. The Construction Method Statement submitted set out various actions and behaviours to limit noise. It stated equipment would be switched off when not in use, shouting and radios would not be allowed on site, machinery would be fitted with silencers where possible and methods to reduce noise would be used wherever possible. The method statement also included adherence with the hours of construction condition.
19. After construction had started, in April 2020, the developer requested a change to the condition controlling hours of construction work. They asked for consent to work between 06:00 and 20:00 Monday to Friday and 06:00 to 17:00 on Saturdays. No work on Sundays or Bank Holidays. They asked for the change to be in effect until 31 August 2020. They agreed to work proactively to address any issues or complaints that may arise. This request was made to help maintain progress on the development while keeping to workplace restrictions implemented due to COVID-19 pandemic.
20. The Council agreed the change without a formal application. Officers reflected that the government were encouraging local authorities to take a flexible and pragmatic approach to planning matters affected by COVID-19. In August 2020, the Council agreed to extend the new construction hours until 31 December 2020.

Highway Works

21. The project also involved some significant alterations to the local road network. The highway works were to take place at night. These works started on 8 June 2020.
22. The highway works were part of a Section 278 legal agreement approved by the Highway Authority. These works were subject to a different method statement. The statement agreed night-time working from 19:30. It stated noisy work would be done before 23:00 to keep noise down during the night. It also stated acoustic barriers would be erected and noise monitoring would be carried out.

Mr X’s complaint

23. Mr X first complained in June, via his local councillor. I have referred to him as Councillor B in this statement. He stated signs and cones had been placed around the busy road junction near his home for road works lasting 16 weeks. This was the first he had heard of it. He complained that the works were 50m from his home and they were disturbing his sleep.
24. Mr X said that environmental health officers did not know about the night-time works when he contacted them, and the contractors told him they were authorised by the highways team.
25. Mr X understood that letters had been sent to residents by the contractors, but he had not received one, nor had his neighbours. Mr X noted that there was already extensive construction work in the area in the daytime, and now these works were taking place at night. This was all occurring while he was forced to lockdown at home due to the COVID‑19 pandemic.
26. The Council says it received an initial complaint from Mr X about noisy out of hours construction works on 11 June 2020 along with several other complaints from other residents over the following weeks. It says it advised the residents to contact the contractor directly at the time the noise took place.
27. The Council stated an officer spoke to the contractors on 15 June. He established the contractor had not sent the notification letter to residents that it had intended to. So, residents would not have had the contractor’s contact details. The officer made Mr X aware of this and the letter was sent out subsequently. The officer re‑iterated Mr X should make noise reports direct to the contractor. The Council provided no indication it took action itself to consider or respond to the noise reports it received or to see if the contractor was using the noise mitigation measures they should have been.
28. In September Mr X told Councillor B that there was a process for local residents to obtain compensation for the noise and pollution levels and for changes caused by the highway works which he was pursuing. He was also investigating the possibility that his council tax band would be reduced. Mr X asked the councillor:
• To provide some data to show the change in noise and air pollution he would need some data from before the work started.
• If permission had been obtained to remove two trees to accommodate the highway works;
• Why the parking of construction vehicles on footpaths throughout the day was tolerated by the Council
• How the works were being monitored to ensure the developers were complying with site working hours etc.
29. At the end of October, Mr X chased for a response to the email he sent in June and the points he raised in September. Mr X provided photographs showing parking of vehicles on the footpath and on a lane of the carriageway.
30. The Council responded to the complaint via a local councillor in October 2020. This followed further complaints about the night-time road improvement works. It commented on various issues. It stated air quality thresholds had not been exceeded. It acknowledged some trees had been removed, but these were on highway land and their removal had been agreed by the highway authority. It stated highways officers had visited the site regularly and they looked to ensure the contractor was complying with the construction management plan. The officers also raised issues they identified on site or that members of the public had raised. The Council stated noise had been considered when approving the scheme of development. It stated controls had been included by conditions and if someone believed a formal breach of planning control had occurred they should contact the planning enforcement team. It stated it would be investigated accordingly.
31. Although this response was sent to Councillor B, it seems it was not passed on to Mr X.
32. On 31 January Mr X complained to the Council. He complained that the Council had failed to properly assess the social impact of the development and the road improvements that were 50m from his home. He stated the Council had no regard to the loss of amenity suffered by the residents. He stated the Council had not responded to his complaint to Councillor B from October 2020.
33. In February Mr X asked the Council for documents showing consultation, Traffic Regulation Orders (TROs), copies of the contractor’s codes of conduct and details of what breaches had been identified via monitoring.
34. On 15 February the Council responded to Mr X’s complaint. It reiterated its response to Councillor B in October 2020 and provided some details of the consideration given to noise and method statements agreed as part of the planning process. The Council stated the parking of construction vehicles and equipment was allowed within the confines of the coned-off work areas. However, any parked outside of these should comply with normal highway and traffic regulations. It did not agree to take any action or to monitor the parking situation.
35. In April Mr X complained further. He stated he had 145 images and video clips showing the contractor’s non-compliance with planning conditions and method statement for construction.
36. Mr X referred to Condition Six which limited working hours. He cited examples of the developer starting work at 6:56am in August 2020 and working on a Saturday afternoon in February 2021.
37. He also questioned adherence with Condition Seven. He stated the condition set a noise-limit but he questioned whether the existing background noise level had been established prior to works starting so this could be enforced.
38. Mr X stated as a whole he found the noise from the site was excessive and constant. He asked the Council to explain what noise reduction measures had been required of the contractors to limit the impact on residents. He noted numerous works the developer had carried out where no attenuation barriers or mitigating measures had been used.
39. In addition to these issues, Mr X complained about the way the developers had managed traffic which caused difficulties for drivers which caused disturbance to residents from frustrated drivers.
40. Mr X also noted that construction traffic was being parked on the footpath and cycleway. He stated an enforcement officer walked past the vehicles without taking action. When he asked the officer why, he stated contractors vehicles had special dispensation. When Mr X followed up with the parking enforcement team, they confirmed no dispensation existed. The following day, parking on the pavement and cycleway stopped. Mr X understood that the developers arranged a parking facility.
41. In May 2021 the Council acknowledged that construction work resulted in a degree of noise, dust and traffic issues. The Council stated it was the developer’s duty to supervise their contractor and communicate with residents. The Council applied conditions which the developer must adhere to. The Council stated in this case Highway Officers had followed up concerns but by the time they attended, the incidents had often passed.
42. The Council stated its Noise and Pollution Control team had pressed the developer about noise following contact from Mr X in July. However, the Council did not provide us with details of this in response to Mr X’s complaint. It stated, rather, that residents were asked to contact the contractor directly when they suffered disturbance. The Council stated noise monitoring formed part of the contractor method statement so the contractor was responsible for this.
43. The Council reiterated that the developer was responsible for managing their own activities and abiding by conditions. It stated officers would respond to alleged breaches of planning conditions as they are reported by members of the public, but the investigation process was lengthy and may not be effective if the breach had already ceased.
44. In terms of working hours, the Council noted the developer had extended the hours of work as a result of COVID. The Council had agreed this informally because a formal application to amend the relevant condition would be lengthy and not allowing the extended hours may delay the project, prolonging the disruption.
45. The Council noted Mr X’s comments about a traffic enforcement officer and stated this would be passed on to the service manager. It stated overall, the highways team agreed the works that the contractor would do to the highway. Highway Officer’s visited the site regularly to monitor the works but they did not directly supervise works. The Council stated issues were raised with the contractor when they were reported to the Council.

Was there fault by the Council

Working Hours

46. When Mr X reported breaches of the working hours, he complained that the working hours in Condition Six were not being adhered to. Although I understand noise was disturbing Mr X, I found there was no fault by the Council in this respect. The government issued guidance to local authorities encouraging them to approve changes to working hours informally in response to the COVID-19 pandemic. The revised guidance was the basis of the Council’s decision to allow extended working hours and this meant the provider could work longer hours.

Noise Reports

47. Mr X questioned why background noise levels had not been properly assessed before work began, because Condition Seven of the planning permission required that noise was not more than 5bB more than the background noise levels. Condition Seven was placed on the planning permission to regulate noise from plant and machinery in the finished buildings. It excluded construction machinery for this reason. As a result, there was no requirement to measure background noise levels before construction started.
48. However, a method statement was required by condition. The condition stated it must be adhered to throughout the construction period. It required mitigation actions be taken to manage noise. In addition, a separate construction method statement was submitted for the highway works. This too set out mitigating actions that should be taken.
49. I found that the Council relied too heavily on the contractor policing their own adherence with the requirements in these documents. The Council stated on one hand, members of the public could report breaches of conditions, and these would be investigated. However, there is evidence that when residents reported issues they were told to address them with the contractor as it was their responsibility to comply.
50. While I understand the Council may ask members of the public to raise issues with the contractor at the time they occur, as part of his complaint, Mr X raised numerous examples of the contractor not using noise attenuation measures. In terms of the night-time works, the method statement required noise monitoring by the contractor. The Council told us that highway officers visited the site every few days, but there is no evidence the Council asked the developer to provide evidence of noise monitoring or what mitigation measures were being used. It is not clear how the council officers monitored how well the contractor was complying with the construction method statement.
51. The Council is responsible for investigating complaints of a breach of planning conditions, not a contractor. Given the agreement to expand working hours, I would have expected the Council to ensure that noise was being mitigated as far as reasonably possible. It does not appear the Council did this here. This was fault by the Council.
52. It is difficult to ascertain whether additional monitoring or visits by the Council to inspect working practices would have found the contractors in breach of the planning conditions and working method statements. So, it is also difficult to establish whether such monitoring would have reduced the noise issues Mr X reported. However, this leaves Mr X with a degree of frustration and uncertainty about whether things could have been improved.

Highway Issues/Parking of Plant and Machinery

53. Mr X raised concerns about the management of traffic and the parking of construction vehicles on footpaths and cycleways. While I note Mr X’s concern, some disruption to traffic and frustration of drivers seems inevitable. I do not consider we can reasonably determine that noise from traffic flows or congestion was avoidable, or that this was fault by the Council.
54. However, there initially seems to have been little monitoring or enforcement of parking of construction vehicles in the areas around the highway works. Parking of construction vehicles was part of the method statement for construction. I note the Council responded after Mr X escalated this with the Parking Enforcement Team and the issues was resolved.

Complaint Response

55. There was also fault in the way the Council responded to Mr X’s complaint. When Mr X initially complained in June, he was told to approach the contractor direct. Although officers responded to Mr X’s further correspondence via a Councillor in October 2020, the response was not passed on to Mr X. This was fault. This led to Mr X having to pursue the complaint further.
56. Overall, I found the Council has not taken enough action to investigate alleged breaches of planning conditions and that it relied too heavily on contractors’ self‑managing their own compliance. Given the extended working hours and night-time working I found its response was insufficient.

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Agreed action

57. To recognise the time and trouble Mr X was put to in pursuing the complaint, and the uncertainty and frustration caused by the lack of sufficient action to investigate his complaints, about noise issues particularly, the Council agreed to pay Mr X £500. The payment should be made within four weeks.

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Final decision

58. I found there was fault by the Council.

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Investigator's decision on behalf of the Ombudsman