Summary: Mr X complained about the Council’s delayed response to a breach of planning control at a development near his house and poor communication and complaints handling. The Council was at fault. Council departments did not liaise when Mr X first complained which was not in line with its enforcement policy and though we cannot show the outcome would have been different, Mr X is understandably disappointed and uncertain about what might have happened if the fault had not happened. The Council was also at fault for poor complaints handling which caused Mr X frustration, uncertainty and time and trouble. The Council will apologise, pay Mr X a symbolic payment and put in place service improvements.

The complaint

1. Mr X complained about the Council’s delayed response to a breach of planning control at a development near his house. He said the Council did not follow its enforcement policy. Mr X said this caused increased levels of dust causing distress and affected his and his families physical and mental wellbeing.
2. Mr X also complained about poor council communication and said it did not follow its complaint policy causing avoidable time and trouble.
3. Mr X said he would like the Council to enforce planning regulation immediately, explain why this was not done earlier, and give compensation.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
6. If we are satisfied with an organisation’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

7. I read Mr X’s complaint and supporting documents and spoke to him on the telephone.
8. I spoke to a Council planning enforcement officer. I considered the Council’s comments about the complaint, the supporting documents it provided, the case officers report and its response to my enquiries.
9. I considered the Council’s policies, and relevant law and guidance as set out below. I considered our guidance on remedies.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Planning

11. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations say they should not.
12. Planning considerations include issues like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
13. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
15. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can be made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.

Planning Enforcement

16. Councils can take enforcement action if they find planning controls have been breached.
17. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
18. The Council’s enforcement policy set out enforcement targets. These include acknowledgement within five working days, site visits in line with a prioritisation scheme, proposed action given to the complainant within 20 working days of acknowledgement and updates for complainants at regular intervals. It also says planning enforcement matters could involve other services within the Council, so officers across the different teams will discuss the query and decide how to proceed.

Statutory nuisance

19. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance may include noise from premises and smells from industry, trade or business properties. To be a ‘statutory nuisance’, the matter complained about must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
• injure health or be likely to injure health.

and which is happening, has happened and is likely to happen again, or is likely to happen in the future.

20. The EPA specifies what can constitute a statutory nuisance. Dust can be a statutory nuisance if it comes from industrial, trade or business sites.

Abatement notice

21. A section 80 abatement notice requires the perpetrator to take steps to abate or stop the identified nuisance. The notice should also have a time-limit for compliance by the perpetrator, but there is no time-limit on the notice itself, once it is in force it remains in force until and unless it is withdrawn.

Council’s dust nuisance procedure

22. The Council’s dust nuisance procedure is published on the Council’s website. It asks complainants to raise concerns with the construction company first. The Council said it can also speak to the construction company and give advice on controlling impact on the community and it can help where the activity is causing a nuisance.

Council complaints

23. The Council has a two stage complaints process:
• stage 1 – the Council would acknowledge the complaint by email within three working days. The complaint would be investigated by a senior member of staff and the complainant would be told in the acknowledgement the officer responding and reply within 20 working days; and
• stage 2 – an independent, senior manager would investigate the complaint and would reply within 20 working days.

What happened

24. Several years ago, the Council approved outline planning permission for a development close to Mr X’s house.
25. A condition in the outline planning permission, required submission of an air quality report and approval in writing before the development could take place. The Outline planning permission said regard would be given to the control of dust and emissions during construction to protect nearby and future occupiers of the development from unacceptable levels of air pollution.
26. Another condition, in the outline planning permission required a construction environmental management plan to be submitted before development started, to include ‘dust suppression measures’ during the construction phase.
27. More recently, the Council approved a reserved matters application for the development site. The Council approved the air quality report condition and the construction environmental management plan condition set out in the outline planning permission.
28. In late July 2022, Mr X raised dust concerns with the developer. He said the developer was unhelpful and contacted the Council. The Council’s environmental health department:
• carried out a site visit the same day Mr X complained and spoke to the site manager about dust suppression and observed road sweepers. The site manager explained because of a road closure the stockpiles of building and waste materials could not be moved but would dampen down the roads on site due to the dry weather;
• asked Mr X to contact the Council’s planning department;
• after the initial site visit, conducted four site visits in August and September 2022. On one site visit a layer of dust on properties and vehicles was witnessed, no dust was witnessed on the other three site visits;
• conducted a visit to Mr X’s property in early October 2022. The environmental health officer witnessed dust from a digger on a stockpile and considered the dust a statutory nuisance; and
• served an abatement notice in late October 2022.
29. In August and September 2022 Mr X said he emailed the Council’s planning department about the dust but did not receive a response. The Council said ‘we have no copies of these emails and no indication that they were sent to an actively monitored email address’.
30. In mid-October 2022 Mr X reported a breach of planning control to the Council via an online form. He had concerns about storage and size of stockpiles with no dust suppression, the impact the dust had on his and his family’s health and on his property. The Council’s planning department:
• responded two days later and said the Council’s environmental health department were taking steps to resolve the matter;
• registered Mr X’s planning complaint; and
• wanted to monitor the abatement notice first to see if the problem still existed.
31. Mr X was unhappy with the response and said the air quality report condition had been breached.
32. In late October 2022 a Council planning officer contacted the developer. They discussed concerns raised by Mr X.
33. In early November 2022 Mr X remained unhappy. He contacted the Council and said activities on the site had not changed. The Council carried out the following actions:
• in early November 2022 an environmental health officer met with the developer on site to discuss compliance with the Council’s abatement notice. The developer said it would remove the stockpile over the next three weeks and it was using water suppression methods;
• a few days later a planning officer emailed Mr X. The officer explained planning enforcement was a discretionary power and the decision to take formal action was not taken lightly. It said it must be satisfied it was in the public interest to issue a notice. It said at that time it ‘did not regard formal action as an appropriate use of limited resources. The case remained open and active’;
• in November 2022 a Council planning officer spoke to the developer about dust suppression, a Council planning enforcement officer spoke to the developer about a stockpile and undertook a site visit;
• between November and December 2022 a Council’s environmental health officer carried out four more site visits but did not witness a breach of the abatement notice. It decided to continue to monitor by site visits;
• in late December 2022 a Council’s planning enforcement officer carried out an unannounced site visit. The officer took photos and noted the developer had removed the large stockpile. The records showed a small hardcore stockpile was not causing dust and the developer told the officer it was going to be removed in January 2023. A road sweeper and mist spray was seen on site; and
• in late 2022 and early January 2023 a senior officer at the Council emailed Mr X with updates on the stockpiles and site visits.
34. Mr X remained unhappy with the Council response. Between mid-January and April 2023 Mr X said the stockpiles had not been removed. Council officers from planning enforcement and environmental health carried out more site visits in this period. Stockpiles were seen and officers asked the developer to move them. The developer said the stockpiles were being reused for the development. No dust nuisance or breach of the abatement notice was witnessed. A Council environmental health officer closed Mr X’s complaint and explained any future complaints would be reviewed and the notice still stood.
35. On a bank holiday in early April 2023 Mr X complained about work taking place outside of agreed hours. The Council said the development site took a one-off delivery of stone, which was against a condition. The Council said it warned the developer not to do it again. The developer apologised and said it was a one-off occurrence.
36. An environmental protection officer continued to carry out site visits in May 2023 and contacted the developer in June 2023 after Mr X complained about dust because of the dry weather. The environmental health officer spoke to the developer. The developer told the environmental health officer it was wetting the roads as often as needed, a sweeper swept the roads two to three times a week and would control the dust.
37. In late-June 2023 a Council planning enforcement officer, undertook an unannounced site visit and noted: he did not witness dust, a water tank wet the street layout five to six times daily, a dust sucker truck was seen working at the visit, a dust suppression log book was updated daily from June 2022 to date, the site was well managed, dust was kept to a minimum and the Council officer would undertake unannounced monitoring visits every two weeks.
38. The same day the Council’s planning enforcement officer emailed Mr X with the results of his unannounced site visit. Mr X responded the same day and disagreed with the officer’s findings.
39. The Council records show the planning enforcement officer undertook unannounced visits every two weeks between mid-June and late-August 2023 and continued to speak to the developer about screening the stockpiles.
40. In mid-August 2023 the stockpile was removed but Mr X still said there were issues with dust on the development site until November 2023. The Council continued to raise Mr X’s concerns with the developer and undertook site visits until November 2023.

Enquiries

41. In response to my enquiries a Council planning enforcement officer said if the planning department had been made aware of Mr X’s concerns in July 2022 it would have investigated. The planning enforcement officer said to enforce a planning breach it would need to have been witnessed two or three times.

Complaints handling

42. In mid-April 2022 Mr X made a stage 1 complaint to the Council about poor communication from the planning department. He said dust issues were still an ongoing problem risking his health and his property, the Council’s enforcement policy had not been followed and there was no collaboration between the Council’s planning and environmental health teams.
43. At first, the Council allocated Mr X’s complaint to the wrong department and it did not provide Mr X with the name of the officer dealing with the stage 1 response.
44. In mid-June 2023 Mr X wrote to the Council and asked for a response to his stage 1 complaint and asked which officer would be responding. The Council responded the same day and explained a planning enforcement officer would respond to his stage 1 complaint in a week and apologised for not meeting its complaint policy standards.
45. In late June 2023 the Council planning enforcement officer responded with the stage 1 response and said the case would remain open for the duration of the development and the Council would continue to monitor the development and conditions. Mr X remained unhappy and three days later escalated his complaint to stage 2.
46. In late July and August 2023 Mr X emailed the Council and said he had not received a response to his stage 2 complaint and did not know which manager would respond which was not in line with the Council’s policy. Mr X remained unhappy and complained to us.
47. In response to my enquiries the Council said there was a backlog of stage 2 complaints and the Council was unable to respond to stage 2 complaints in line with its targets. It said a new system was in place to ensure it could track and manage stage 1 and stage 2 complaints, streamlining its processes and responding in a timely manner.

My findings

48. We are not an appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant. I have considered the processes by which the decisions were made and my findings are as follows.

Planning enforcement action

49. Planning enforcement is discretionary and formal action is a last resort. When Mr X complained through the Council’s online planning complaint form in mid-October 2022 the Council responded within two days. This was within the timescales set out in the Council’s enforcement policy. The Council registered Mr X’s planning condition breach complaint and said it would monitor the notice being served by its environmental health department. A planning officer also contacted the developer. The Council did not consider formal action was a proportionate use of limited resources but the case remained open and active. This was a decision it was entitled to make and Mr X was told of its decision within 20 days of its acknowledgement which was in line with its policy.
50. Following the Council’s decision, evidence showed a Council planning officer contacted the developer about the stockpiles and monitored the site with unannounced site visits and Mr X was kept up to date by Council officers. This was appropriate and followed the decision-making process we would expect. The Council was not at fault between November 2022 and November 2023.
51. The developer breached a planning condition relating to working hours on a bank holiday in April 2023. The Council warned the developer not to do it again and there is no indication out of hours work took place consistently. The Council decided it was not appropriate to take formal action and this was a judgement it was entitled to make.
52. The Council said its records do not show it received Mr X’s email complaints to the planning department in August or September 2022. The Council was not at fault for not responding to those emails.

Environmental protection action

53. Between late July 2022 and late September 2022 environmental health officers witnessed dust on just one occasion, and it was decided this was not enough evidence of a statutory nuisance.
54. After another visit, records show that in early October 2022 an environmental health officer determined the development site was causing a statutory nuisance and served an abatement notice in late October 2022.
55. The Council continued to speak to the developer, undertake site visits, and monitored the site, but no further dust nuisance was witnessed. The Council followed the correct process and so I find no fault in the way it dealt with statutory nuisance matters.
56. However, the Council’s enforcement policy requires referrals and liaison between different departments. We know environmental health officers made site visits in July, August and September 2022 and saw dust on one occasion, but they did not speak to colleagues in planning enforcement at this time. This was not in line with the Council’s enforcement policy, and it is fault.
57. When we find fault, we need to decide whether it caused a significant injustice. To do this, we first need evidence to show the outcome would have been different.
58. Even if planning enforcement officers had been made aware of Mr X’s concerns immediately, I cannot say that the outcome would have been different, and my reasons are as follows:
• environmental health officers did visit the site but initially found no evidence of a nuisance; and
• a single incident of dust is unlikely to have satisfied a planning enforcement officer that significant action, other than a reminder to the developer of their obligations, was necessary.
59. Because of this, while I have found fault, I cannot show it caused a significant injustice to Mr X that requires a financial payment.
60. However, I am satisfied that what has happened is likely to have caused Mr X disappointment and uncertainty, for which the Council will apologise.

Council Complaint

61. Mr X made a stage 1 complaint in mid-April 2023. The Council initially sent the complaint to the wrong department and did not inform Mr X of the officer responding to his complaint. The Council told Mr X he would receive a response by mid-June 2023 and he did not receive it until late June 2023. This was an overall delay of five weeks and was fault which caused Mr X frustration and time and trouble. The Council will apologise.
62. Mr X requested his complaint was escalated to stage 2 in late June 2023 but did not receive a response. This was fault and caused Mr X frustration, uncertainty and time and trouble. The Council will apologise and pay him a symbolic payment.

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Agreed action

63. Within one month of the final decision the Council will:
1. apologise to Mr X for the disappointment and uncertainty caused by the environmental health teams failure to initially liaise with planning enforcement about his dust complaint;
2. apologise and pay Mr X £100 for the uncertainty, frustration and time and trouble caused by the delay in issuing the stage 1 response, not informing him about the officer responding to his complaint and not sending Mr X a stage 2 response;
3. remind relevant staff of its enforcement policy and joint working requirements.
64. Within three months of the final decision the Council will provide evidence of the actions the Council is now taking to address the delays at stage 1 and stage 2 of its complaint process to ensure it responds within its published timescales and names the officer responding to the complaint.

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Final decision

65. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice and prevent reoccurrence of the faults.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman