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Forest of Dean District Council (20 002 532)

Category : Planning > COVID-19

Decision : Closed after initial enquiries

Decision date : 07 Oct 2020

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s lack of enforcement action during the Covid-19 lockdown period. We will not investigate this complaint. It is unlikely we would decide fault by the Council had caused Mr X significant injustice.

The complaint

  1. Mr X complained about the Council’s lack of enforcement action relating to a development about 200 metres from his home, during the Covid-19 lockdown period. In particular, he complains the Council:
    • Did not take enforcement action against breaches relating to hours / methods of work;
    • Did not keep proper records of discussions with the contractor about changes to working hours, and decisions it made; and
    • Delayed dealing with his complaint
  2. Mr X says this caused him distress. He had to deal with dust and noise pollution from the development, including at 10pm on Sunday.

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The Ombudsman’s role and powers

  1. This complaint involves events that occurred during the Covid-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
  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:
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement.

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

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How I considered this complaint

  1. I considered the information Mr X provided when he complained to us.
  2. I considered information the Council provided.
  3. I considered Mr X’s comments on my draft decision.

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What I found

  1. 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 2018, paragraph 58)
  2. The Government issued temporary guidance in May 2020 to enable construction sites to work extended hours. This said agreement should be sought from the council, but agreement could be informal and councils “should use their discretion to not enforce against a breach of working hours”. (Coronavirus (COVID-19): construction update Q&A, Ministry of Housing, Communities & Local Government, 13 May 2020)
  3. Mr X told the Council in June 2020 a building site near his home was active outside of the hours it should have been, and he provided video evidence. The Council wrote to the contractor reminding them of the conditions attached to their planning permission, which included restricted working hours. The Council spoke to the contractor, who said they were trying to make up for lost time due to the site having been closed during lockdown. The Council decided it was not expedient to take formal enforcement action, but that if the work continued past the expected completion date at the beginning of July it would reconsider this.
  4. The contractor continued work on the site past the date it had said it would. Mr X became frustrated at the Council’s lack of formal action and continued to raise concerns. The Council decided it was still not expedient to take formal enforcement action. It told Mr X the contractor was aware of the negative effects its work could have on neighbours of the site and was working to complete building works as soon and as responsibly as it could.
  5. The Council acknowledged it had been slow to respond to Mr X and it apologised. It reiterated that the decision on whether to take enforcement action was at its discretion and in this particular case, taking account of all the relevant circumstances, it had decided it was not expedient to take further action.
  6. Mr X told the Council it had not provided adequate justification. He believes it ignored the evidence he provided, and he queries whether it had agreed the extended hours with the contractor as the guidance said was necessary.
  7. The Council did not agree to extended working hours. There was therefore a breach of planning control. But this does not automatically mean the Council must take formal enforcement action. Its role in such circumstances is to consider whether such action is expedient. The government encourages informal enforcement where possible and explains “There is a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way”. (Enforcement and post-permission matters: Responding to suspected breaches of planning control, Ministry of Housing, Communities & Local Government (2014))
  8. The Council was entitled to decide not to enforce against the breach of planning control, in particular given the government guidance which said councils should not enforce against breaches of working hours during this period. There was no fault in the Council deciding not to take formal enforcement action.
  9. We would expect councils to properly record conversations with developers and subsequent decisions, and Mr X complains it did not do so. The Council also acknowledged it delayed in responding to Mr X. However, if we investigated this complaint, we would be unlikely to decide fault by the Council had caused a significant injustice to Mr X.
  10. This is because Mr X’s distress, and the dust and noise he endured, were caused by the development itself, rather than Council fault. But for any fault by the Council in recording and communication, the development would still have gone ahead at the times it did because the Council would not have taken different enforcement action. The Council’s delays in responding to Mr X worsened his distress, but were not the main cause of it and this alone is not significant injustice that would warrant investigation by the Ombudsman.

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Final decision

  1. The Ombudsman will not investigate this complaint. This is because it is unlikely we would decide the injustice caused by fault was significant enough to warrant our involvement.

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Investigator's decision on behalf of the Ombudsman

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