Summary: The Council acted without fault in its handling of complaints about alleged breaches of planning control on a major development site from September 2017.

The complaint

1. Mr X complained about the actions of the Council on enforcing planning controls on a major development site opposite his home.
2. Specifically, Mr X complained the Council:
• unreasonably delayed assessing whether there was a breach of planning control;
• unreasonably delayed deciding how serious the breach was and what action was appropriate;
• unreasonably delayed taking enforcement action where it accepted it was justified;
• failed to keep proper records, such as records of site visits;
• failed to have a written policy on planning enforcement or failed to take its policies into account when deciding what action to take;
• failed to tell the parties involved of its decisions or to keep them informed of progress; and
• failed to liaise properly with other departments, such as environmental health or building control to control the development in progress.

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What I have investigated

3. I have investigated enforcement matters only from 1 September 2017 and have exercised the Ombudsman’s discretion to go back slightly more than 12 months on this occasion, from the point Mr X came to us formally in Autumn 2018.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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. (Local Government Act 1974, section 34(3), as amended)
6. 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

7. I have spoken with Mr X and considered information from him.
8. I have considered comments and information provided by the Council.
9. I have considered:
• the National Planning Policy Framework (2012), applicable at the time of these events; and
• the Council’s Planning Enforcement Policy (2015).
10. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

11. The Council approved a planning application for a major development in 2014. This involved demolition of the existing buildings and construction of new ones. Mr X lives across a main road opposite the site entrance.
12. Mr X complained to the Council about its decision to approve the application. Once development started on the site in 2014/2015, he made repeated complaints about noise disturbance from work on the site he alleged was outside the approved working hours that conditioned the planning approval.
13. Mr X said the Council failed to respond to his complaints in a timely way, failed to properly assess the alleged breaches of planning conditions and failed to take appropriate action to prevent further breaches taking place.
14. Mr X also said the Council did not follow its own complaints process properly. He brought his concerns to the Ombudsman in October 2018.

Enforcement policy

15. The Government’s National Planning Policy Framework says of enforcement: “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. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.”
16. The Council has a Planning Enforcement Policy (2015). This sets out its enforcement process and clear priorities for its investigations and actions. It has four levels of priority and timescales in which it will investigate reports within each category.
17. The Policy says: “Whilst nothing in this policy should be taken as condoning a wilful breach of planning law, the Council’s enforcement powers are discretionary and will only be exercised when it is considered expedient to do so. In considering the issue of expediency, the Council will have regard to [among other things]:
• whether the breach of planning control unacceptably harms public amenity, or the existing use of land and buildings merit protection in the public interest;
• ensuring any enforcement action is commensurate with the breach of planning control to which it relates. Enforcement action will not normally be taken to remedy trivial or technical breaches of control which are considered to cause no harm to amenity; and
• relevant planning policies and other material considerations.”
18. The Policy says the Council will update the complainant as the investigation is progressing. It also sets out a pro-active process in which the Council carries out sample monitoring of developments to check planning permissions, adherence to approved plans and compliance with conditions.
19. The Council has wide discretion on whether to take action once it has investigated an alleged breach of planning control. This ranges from no action, through negotiated solutions to formal notices and ultimately possible prosecution.

What the Council did from September 2017

20. Mr X had made repeated complaints to the Council about alleged breaches of working hours from the start of the development in 2014/15, especially early morning activity which he said disturbed him. The planning permission allowed work from 08:00 each weekday morning and Saturdays, with no work allowed on Sundays and Bank holidays, to protect local residents’ amenity.
21. The Council had responded to Mr X’s concerns but had not found breaches of the working hours. In August 2017 however, it did identify a breach and had served a Breach of Condition Notice on the developer within two days of the breach being reported.
22. Mr X made further complaints through October and November 2017 and the Council carried out an unannounced site visit at 7:00am in late November. It noted site staff had entered the site but did not consider development work was taking place. In addition, site deliveries were not given access before 8.00am.
23. The Council earlier in 2017 had refused an application from the developer to extend working hours on the site to 07:00 to 19:00, to protect the amenity of local residents.
24. In December 2017 Mr X raised concerns with the Council about the removal of a large construction crane from the site. The Council explained the contractor had sent information to residents before this event advising of the likely short-term disruption as the crane was removed. The contractor had advised the Council of the intended removal some months before, as there were traffic restrictions required for the removal.
25. Mr X made further complaints about alleged breaches of working hours in January 2018, including Sunday working. The Council investigated and identified the developer had a sales office open on Sundays but there was no development work carried out. It did not consider this amounted to a breach of the working hours condition, so took no further action.
26. The Council has explained that it involved its Environmental Health team over concerns raised about dust on the site, but not about noise concerns.

Analysis

27. I recognise Mr X has raised regular and repeated concerns about the development site with the Council since 2014, when development started. However, for the reasons stated in paragraphs 39-40 below I have not investigated his concerns before September 2017.
28. From September 2017, the Council responded to Mr X’s concerns without undue delay. All emails received a response, some within a few days, some after a longer period when further investigation was needed. Mr X has chased responses at times, but given the volume of contact from him and the repetition of concerns, I do not find fault in the occasional longer periods of response, none of which were excessive.
29. The Council has not identified breaches of working hours as alleged by Mr X since September 2017. It carried out unannounced site visits out of working hours. It was satisfied the activity on the site before 08:00 was not demolition, construction or development and so was not in breach of the working hours condition. The Council therefore had no breach against which it could consider action.
30. Mr X disagrees with the Council’s view. I recognise that he lives opposite the site entrance of a major development that has taken several years to complete. Therefore, he has inevitably been subject to disturbance, noise, dust and some parking issues outside his house.
31. However, the Council was not required to prevent all impacts of the development. It conditioned the planning permission to limit harm to residents’ amenity. It investigated Mr X’s concerns appropriately, in line with its enforcement policy, however there were no specific breaches in the period I have investigated, so no action was needed.
32. Mr X refers to a lack of liaison by the Council between planning and building control. The developer appointed an Approved Investigator, independent of the Council, to manage building control, so the Council had no direct involvement in that process.
33. Where the Ombudsman does not find fault in the Council’s actions on the substantive complaints, we do not investigate complaint handling on its own, I have therefore not done so in this case.

Findings

34. I am satisfied the Council investigated Mr X’s concerns from September 2017 in a timely way and kept him informed of its findings and actions. It did this in line with its published enforcement policy and processes.
35. The Council has provided me with evidence of its site visit in this period. I am satisfied it kept a proper record of the visit.
36. I therefore do not find fault in the Council’s actions and do not uphold Mr X’s complaints.

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Final decision

37. The Council properly responded to Mr X’s complaints about alleged breaches of planning control on the development opposite his home.
38. The Council investigated the concerns properly and found no breach of planning control. It communicated with Mr X appropriately about these matters.
39. Having considered comments from Mr X and the Council I have completed my investigation.

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Parts of the complaint that I did not investigate

40. I have not looked back to the planning decisions themselves for the major development opposite Mr X’s home. This is because I consider he could have taken those specific concerns through the Council’s complaints process and then brought them to us much sooner, with any additional concerns about the complaints process itself.
41. I have also not reviewed the enforcement actions before 1 September 2017. On 4 September 2017 the Council suggested Mr X might ask the Local Government and Social Care Ombudsman to investigate his concerns about the Council’s actions. This was because the Council did not feel its explanations were leading to a shared understanding of its position. Mr X chose not to approach us at that time, therefore I see no reason to investigate matters before that point.

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Investigator's decision on behalf of the Ombudsman