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Selby District Council (18 013 961)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 07 Feb 2020

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to take enforcement action against multiple breaches of planning control by developers, principally involving working hours, over four years. While not all the matters reported were breaches, many were, and the Council’s failure to escalate enforcement action, and its unjustified decision to designate Mr X as a vexatious complainant, caused him and his wife significant distress, a loss of quiet time, unnecessary anxiety and time and trouble. The Council will apologise and pay Mr X £2600.

The complaint

  1. The complainant, whom I shall call Mr X, complains the Council has failed to take proper enforcement action against breaches of planning control by housing developers on sites adjoining his property.
  2. Specifically, he says:
  • Developer A (involved 2015-17) failed to comply with a planning condition on working hours. The Council issued an enforcement notice that had no effect. The Council intended to prosecute Developer A, then decided not to. Mr X only found out about this when he called the Council two days before he was due to give evidence in court. The Council has failed to explain why it now takes the view prosecution of Developer A is not in the public interest. Developers B and C (involved since 2017) have also breached a planning condition on working hours in the same way without the Council acting.
  • There have been problems with dust and constant reversing alarms that are of the wrong type.
  1. Mr X also says the Council has failed to deal with his complaint about these matters.
  2. During the Ombudsman’s investigation, the Council told Mr X it was treating him as a vexatious complainant. He says it was wrong to do so.

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The Ombudsman’s role and powers

  1. 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)
  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’. 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)
  3. 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)
  4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  5. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

  1. I originally intended to deal only with matters since 2017. However, it became clear there was a similarity between the Council’s actions before and after 2017. So, I decided to exercise the Ombudsman’s discretion to consider the earlier period.
  2. I read the papers Mr X sent me and spoke to him on the telephone. I made written enquiries of the Council and asked it for further information after considering its response. I considered the Council’s planning enforcement powers and duties under the Town and Country Planning Act 1990 (as amended) and its environmental health powers and duties under the Environmental Protection Act 1990. I travelled to the Council’s offices to inspect files and to interview officers. I considered the Ombudsman’s Guidance on remedies.
  3. I shared a draft of this decision with both parties and invited their comments. I considered those I received.

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What I found

Context

  1. The Council granted planning permissions in about 2012 for different developers to build on a large site adjoining Mr X’s property. Developer A was the first to start work, in 2015. By 2017, Developer A had completed its work and Developers B and C moved onto the site. Both of these developers are continuing to build on the site.
  2. I shall deal first with what should have happened.

Planning enforcement

  1. The Town and Country Planning Act 1990 creates a duty for the Council to consider reports of breaches of planning control. These reports are just that, not complaints. The Council must decide if there are breaches. Once a breach or breaches are clear to it, the Council must decide if the breach causes enough planning harm to warrant enforcement action. It has wide discretion about the action it may take. It may decide the breach is too minor (sometimes called “de minimis”) for enforcement action. It may also choose to take less enforcement action than it could take if it feels there is a good reason. For example, if it is persuaded a breach is unlikely to recur, it may choose not to escalate action.
  2. Often, breaches are resolved informally. However, where a breach is unresolved, or repeated, the Council may need to take formal enforcement action. This involves issuing a notice, such a Breach of Condition Notice or a Planning Contravention Notice, which is often followed by court action against the developer.

Environmental health

  1. The Environmental Protection Act 1990 gives the Council a duty to investigate complaints of pollution by noise or otherwise. The Council should investigate and decide whether it is a statutory nuisance. It can also choose to take informal action if something causes nuisance, but is not a statutory nuisance, such as writing to the owner.
  2. For a noise to count as a statutory nuisance, it must do either of the following:
  • Unreasonably and substantially interfere with the use or enjoyment of a home, or other premises; or
  • Injure health or be likely to injure health.
  1. To act, the Council must be satisfied a nuisance exists. The Officer will come to an independent judgement, taking into account the type of nuisance, duration, intensity and location to decide whether a statutory nuisance exists.
  2. If a Council identifies a statutory nuisance, then an Abatement Notice should be served on the person responsible. The Council can then negotiate with that person to try to get the problem remedied, but there should be a realistic prospect of a resolution. If the problem persists the Council should try to gather further evidence to demonstrate a breach of the notice. If the evidence shows the Notice is still not being complied with, then court proceedings should be started.

Complaint handling

  1. Councils should adhere to the timescales set out in their own complaints policies where the matters complained of are not covered by any separate statutory complaints procedure ordained by Parliament.
  2. The Council’s corporate complaints policy has two stages. The first stage has a maximum timescale of 20 working days from the day after receipt of the complaint. A complainant dissatisfied with the first stage response may escalate the complaint to the second stage. This also has a maximum timescale of 20 working days from the day after receipt. After that, the policy refers the complainant to the Ombudsman. The policy states that there can be exceptional circumstances in which the Council takes longer than 20 working days at the second stage.

Vexatious complainants

  1. Councils should have policies for dealing with vexatious complainants that lay out examples of the behaviours likely to be vexatious. These commonly include the use of threats, offensive and insulting language and unreasonable demands or behaviour that may also take up a disproportionate amount of officers’ time.
  2. The Ombudsman’s view is that councils’ policies should require officers to issue a warning to a vexatious complainant about the behaviour that has caused concern before designating them as vexatious.
  3. I will now consider what happened and whether there was fault by the Council.

Planning enforcement about working hours: Developer A (2015-17)

  1. The Council’s planning enforcement records show Mr X reported repeated breaches of planning control by Developer A between March 2015 and June 2017. He also reported other matters, but from July 2015 to January 2017 it was principally early starts on site. These varied from a few minutes to nearly an hour before the permitted start time of 8am on weekdays. The Council accepted these were breaches, having carried out site visits to check.
  2. The planning enforcement records show the Council warned Developer A in April 2016 it would take formal enforcement action if the repeated breaches went on. It then told Mr X it had told Developer A in May 2016 it would issue a Breach of Condition Notice (BCN), due to start in June 2016. Mr X continued to report early starts. The Council asked Mr X to send a witness statement for the court case. He agreed.
  3. The planning enforcement records show the Council arranged a meeting with Developer A in late July or early August 2016. Emails from this time show the Council was concerned the original planning permission from 2012 was not sufficiently detailed. When I interviewed her, the Chief Executive told me the Council had had difficulties with five-year land supply several years earlier. She said this had led to some planning permissions having been less robust than they might have been. The records show there was a further meeting involving Developer A and residents in September 2016. The records show Developer A reported in October 2016 there had been a couple of early deliveries recently. In November 2016, the Council accepted delivery vehicles arriving before the start time of 8am could park and wait.
  4. For the next few months, Mr X reported only one early start. But he also reported noise from piling.
  5. On 7 July 2017, the Council emailed Mr X to say it had abandoned court action as Developer A had agreed to no vehicles parking before 7.30am or moving to positions on site before 8am. This was two days before Mr X was due to give evidence.
  6. The Council’s view is that it took time to draft the BCN and to properly review the case for prosecution. It says it acted as efficiently as resources allowed and tried to work via negotiations. But the records show the Council took more than a year to begin formal enforcement action against Developer A despite evidence of repeated breaches of working hours and other matters. While formal enforcement action should not have been the Council’s first response, the number of confirmed breaches was such that it should have acted sooner. I find it at fault.
  7. It was not fault for the Council to take legal advice and abandon the court case against Developer A. It does not have to explain to Mr X why that advice was that prosecution would not be in the public interest. However, the records show Developer A submitted a planning application that regularised the hours of work. The Council told me that giving Mr X more notice might have compromised the agreement reached with Developer A. But the Council had earlier accepted, in dealing with Mr X’s complaint, that it had not given him enough warning it was going to abandon the prosecution. It apologised. I find the Council at fault for the lack of notice.

Planning enforcement about working hours: Developers B and C (2017 to date)

  1. The Council’s planning enforcement records show Mr X reported repeated breaches of planning control by Developers B and C between August 2017 and August 2019. He says the breaches have continued, but that he has stopped reporting them after the Council decided he was a vexatious complainant. Again, although Mr X reported other matters, the most frequent were breaches of working hours. The early starts varied from a few minutes to over an hour.
  2. In November 2017, the Chief Executive intervened. She met Mr X and a local councillor at Mr X’s home and emailed Mr X the following day, stating “I am taking a personal interest in this matter.” When I interviewed her, she said this was because she was concerned and didn’t want to let Mr X down. She confirmed she spent about 105 minutes at Mr X’s home. She said she regretted the Council had not been able to solve the problem Mr X has had. She also said she had had to hand the matter over after her visit to others who had more technical information. She said she had not promised to report back to Mr X, as he has stated, but that perhaps she should have done.
  3. It is not for the Ombudsman to criticise the Chief Executive’s decision to intervene. This was a decision she was entitled to take, not fault. In other circumstances, it might have helped resolve the matter. Equally, it might, and did, create an expectation from Mr X of her continued involvement when things did not change. This became significant in 2019 when the Council decided Mr X was a vexatious complainant.
  4. However, the Council took until November 2018 to issue Planning Contravention Notices (PCNs) to Developers B and C, requiring formal answers to questions about breaches. This was despite the Chief Executive sending an email to the planning department in March 2018 asking it to act urgently after it said it would send a final warning to Developer B. At the same time, in March 2018, the local parish council had passed a motion and the Council had regular reports coming in of breaches of working hours. It was also despite sending warnings to Developers B and C more than once that it would start formal enforcement action.
  5. An internal email of 22 May 2018, from a principal planning officer, suggests a reason for the Council’s lack of escalation. It stated “[X] is in agreement that we need to move away from potentially three conditions on an outline [planning permission] all purporting to control dust, site management, vehicle routing and CMP [construction management plan] & etc. This has raised expectations which we have not been able to fulfil either because of limited resources or because we cannot control things in the CMPs that residents have now picked up on. This was particularly referred to in the Conditions training.”
  6. This email shows the Council lost planning control between August 2017 and November 2018 as the result of the poor drafting of planning conditions in the original planning permissions from 2012. As stated earlier, this poor drafting was confirmed at interview by the Chief Executive. It was also confirmed in the records from 2016 mentioned earlier.
  7. The Council’s view is that, while it did not act quickly enough between August 2017 and October 2018, it did better after that.
  8. However, Mr X again reported breaches of working hours between April and August 2019. The Council threatened planning enforcement action twice more, but did not take it, despite finding a breach of hours during a site visit on 19 July 2019, some 16 days after the second warning.
  9. It is also notable from the records that, at times, the Council could not work out whether Developer B or C was responsible for the breach. While this would have made the Council’s enforcement work harder, the issue with breaches of hours was long-established on the site and it should have been a priority to establish responsibility, particularly given the problem with planning conditions was the Council’s fault.
  10. The Council has questioned whether there were as many breaches of working hours as Mr X reported. But the records contain several examples of developers accepting there had been breaches of hours. It also pointed out that complaints from other residents were few. However, while this is the case, the records show Mr X was not the sole complainant. And he says his neighbours told him they did not complain because the Council would not do anything about the breaches.
  11. In summary, despite holding meetings with developers and warning them about formal planning enforcement action, I find the Council repeatedly took too long to move to formal planning enforcement action about hours of work over a period of more than four years. I will deal with the injustice this caused to Mr X in a separate section later on.

Planning enforcement about dust

  1. Mr X reported blowing dust in July and August 2015. He did so again in July 2017. In 13 November 2018, an environmental health officer said the dirt and dust was such when he visited that site that he would question the effectiveness of the wheel washing. There were also reports of dust from other residents. I note the Council asked Developers B and C about dust formally in the PCNs of November 2018. Given the reports of dust were not constant, and that the Council included it in the PCNs after the environmental health report, I do not find the Council at fault in this respect.

Planning enforcement about reversing alarms

  1. I have not dealt here with the timing of reversing alarms. Where the matter is one of the time at which an alarm sounded, that is matter of a breach of working hours, already dealt with above.
  2. I have instead focussed on the type of noise, where it sounded in accepted working hours.
  3. Essentially, there were two types of reversing alarms the developers could use. One, which is less intrusive, is a “white noise” reversing alarm. I note the construction management plan to which Developer C agreed stated “white noise” reversing alarms were to be used, subject to health and safety considerations.
  4. The last point is important. The development is large. It involves many vehicles and plant that have reversing alarms. The numbers of houses permitted to be built by each of the three developers shows this is likely to have been the case since 2015. When I visited the Council’s offices, I saw a copy of advice from the Health and Safety Executive about white noise reversing alarms the Council obtained to consider Developer C’s case that they would not be safe on its site. It is not for the Ombudsman to say if any of the developers should have used white noise reversing alarms. This is because the Council acted properly in considering the case put forward by Developer C that it would not be safe to do so. Therefore, I do not find the Council at fault in reaching the view it would not act to ensure the use of white noise reversing alarms.
  5. The Council’s view is that it took some time to chase the developers for information that allowed it to decide about the white noise alarms. However, the records show there was an email from the environmental health department to planning colleagues on 27 June 2019. This said the Council’s position of not taking enforcement action about reversing alarms needed more work before it could be justified. Mr X had been reporting the reversing alarms used by Developers B and C were the wrong type since August 2017. The Council could decide the reversing alarms were acceptable. But it was fault that the matter was still unresolved in June 2019, almost two years after Mr X reported what appeared to be breaches.

Planning enforcement and environmental health enforcement about other noise

  1. Two other issues involving noise arose in 2015 and 2019. I have considered these as it does not seem reasonable to ask either party to go through a further formal complaints process when I am able to reach a clear view in both cases. One of these was the use of pumps overnight in 2015 and 2019 to remove excess water. The other was piling. These also involve an environmental health duty that I will consider later.

Pumps

  1. In August 2015, the Council did not accept the use of a pump. The records show it warned Developer A it was a breach of planning control. The records do not show any further complaints about the pump after that in 2015. As the Council acted on the report, it met its duty. I do not find it at fault.
  2. Following monitoring visits by the environmental health department in July 2019, the Council took the view the use of a pump in 2019 was necessary, and it would not take enforcement action. Mr X’s view is that the Council’s attitude to the pump in 2019 was inconsistent with its response in 2015. However, the Council could decide it was reasonable not to take enforcement action, but instead to allow the use of the pump to prevent flooding of excavations. That was not fault.

Piling

  1. The matter of piling has been more complex. All three developers had planning permissions for piling. The permissions for Developers B and C date from 2018. They allowed a maximum noise of 75 decibels.
  2. The records show the Council chased Developer A in June 2015 about a failure to inform all affected residents in advance about piling. This was not fault by the Council as it was a straightforward matter where it took action.
  3. In April 2017, Mr X reported piling by Developer A had begun without notification. I have seen no evidence the Council contacted Developer A about this, though it had previously asked Developer A to tell local residents in advance. Although this was a minor matter, I find the Council at fault.
  4. In January 2019, Developer C warned the Council it would start piling on 18 February 2019. It said the piling would exceed the 75-decibel limit at several neighbouring properties, but not at Mr X’s property. The correspondence with the Council shows Developer C said adequate noise control would need a six-metre-high fence.
  5. Internal emails show the planning department contacted its environmental health colleagues to ask what the difference between 75 decibels and 84 decibels would be like. The response was that it would be a doubling of noise, like the difference between a lorry and a freight train passing.
  6. The Council had four weeks’ notice of the intended breach. It could have decided the breach would not require enforcement action, or it could have asked Developer C to wait, and then considered whether to take formal enforcement action in the event of a refusal and any consequent breach. It could also have asked Developer C to submit a planning application to vary the condition.
  7. A week after the first warning, Developer C contacted the Council again, asking for a decision as a matter of urgency.
  8. I have seen no evidence the Council reached any decision before piling started. This was fault.
  9. The Council’s view is that it took some time to find the facts to make a decision. It also says there was no breach. But it remains the case that it could have asked Developer C to wait and considered what to do in the event of a refusal. And it did not know when the work started that Developer C would be wrong in its warning of the likely breach. I will deal with whether there was injustice from the fault later in this section.
  10. Mr X reported serious noise within 24 hours of piling starting.
  11. The Council visited the same day, but it was after piling had stopped. The following day, the Council measured the noise at 62 decibels. It confirmed to Mr X the noise was not a breach of planning control.
  12. In an internal email on 21 February 2019, the environmental health department advised the Council had two options. The first was a short period of “very high disturbance”. The second was a longer period of “moderately high disturbance”. When the Council told Mr X it had chosen the first option, he complained about this. The Council said it would only take action once Developer C exceeded the noise limit. However, Developer C had already alerted the Council to the forthcoming breach. While it is not for me to say what course the Council should have taken, it should have set a course before piling started, given even Developer C had asked for this.
  13. On 27 February 2019, the environmental health department spent two hours monitoring the noise from piling. The maximum noise it recorded was 67 decibels. It advised the 75-decibel limit would be breached within 40 metres of piling. It took the view that the 75-decibel limit was too high anyway and it should be 70 or 65 decibels.
  14. When I visited the Council’s offices, I checked the records since spring 2019. The environmental health records showed the Council warned Developer B it would exceed 65 decibels, as it was shortly due to start piling and this would exceed 65 decibels. A dispute followed between the Council and Developer B about what the noise limit should be. The Council issued a notice under s.60 of the Control of Pollution Act 1974, but reached an agreement with Developer B in June 2019, following legal advice. I have seen the legal advice. The agreement reached was that the noise limit would be 65 decibels over a ten-hour average, with one hour in which it could exceed 65 decibels.
  15. While Mr X disagrees with the methods and findings of the Council’s noise monitoring, it was not fault for the Council to seek to impose a noise limit of 65 decibels. It was also not fault for the Council to reach an agreement with Developer B after taking legal advice.

Dealing with Mr X’s complaints

  1. The correspondence shows the Council responded in October 2017 to a formal complaint Mr X made in August 2017. It apologised for its late reply and for not having told him about the adjournment of the court case against Developer A. It offered Mr X the opportunity to proceed to a formal second stage.
  2. The Council responded in September 2018 to a second stage formal complaint by Mr X of August 2018. It said the Council had taken ongoing actions to deal with breaches by Developers B and C, as well as referring back to the earlier complaint.
  3. Although I have found fault where the Council did not, that does not mean there was fault in the Council’s handling of Mr X’s complaint. Other than the delay in the first stage, which it accepted.
  4. However, during my investigation, other fault by the Council has come to light. This has been its action in wrongly treating Mr X as a vexatious complainant. I have also found fault with the Council’s policy for dealing with vexatious complainants.

The Council’s policy for dealing with vexatious complainants

  1. This policy is available on the Council’s website. It includes the option for the Council to call a meeting with the person whose actions in complaining it considers unreasonable or vexatious before restricting his or her communications. But this is not mandatory. And it does not provide for a warning to be issued to such a person before the onset of restrictions. As such, the policy fails to adhere to a basic principle of good complaint-handling, which is to give a person an opportunity to amend his or her behaviour before acting to restrict communications. This is fault.

The Council’s designation of Mr X as vexatious.

  1. The Council wrote to Mr X on 21 August 2019. It told him it was restricting his communications with it. There had been no warning. This was fault.
  2. The letter of 21 August 2019 said Mr X had made over 100 complaints since August 2017. This was not correct. Instead, Mr X had made two formal complaints. Most of Mr X’s emails had instead reported planning breaches, often breaches of working hours, using the only method the Council had offered him. Although the Council’s website categorises these reports as complaints, they are not. They are merely reports of breaches. When drawing up a chronology of Mr X’s contacts with the Council since 2015, I was struck by the similarity of the matters reported. Many planning authorities offer diary sheets to avoid the need for a person to send repeated communications. When I interviewed Mr X at the Council’s offices, he said he would happily have filled in diary sheets rather than having to use the email facility daily on the Council’s website. I interviewed the officer who collated the information for the letter of 21 August 2019 (Officer A). When I asked her why the Council had not offered Mr X diary sheets, she said she now realised it would have saved the Council much time if it had done so.
  3. The letter of 21 August 2019 said Mr X had claimed it was his “obsession and [his] ‘life’s work’ to close down the site and reverse the development consent”. Mr X has consistently denied saying this to any Council officer. I interviewed the officer who wrote the letter (Officer B). He said he had not seen evidence of the comment, but he believed it had come in a conversation with an officer. Officer A said she got the impression Mr X wanted to close down the development, but he had not said it to her. None of the other officers I interviewed said Mr X had made the comment to them. I have not found the comment in any of Mr X’s correspondence with the Council, or seen it reported directly by any officer as having been said to him or her. Other than in the letter, I have seen no reference to it. I therefore find the allegation made against Mr X was not true. Making it in the letter without evidence was fault.
  4. The letter said Mr X had vexatiously repeated the same complaints and raised new complaints of the same nature. This was not correct. Instead, most of his emails were reporting repeated breaches of working hours. Given the breaches had continued, despite the involvement of the Chief Executive, and the Council had taken too long to start formal enforcement action, it was not correct for the Council to regard this as vexatious. Moreover, it is not surprising that, after four years of reporting breaches, Mr X had tried new routes, such as questioning whether the developers’ actions could be anti-social behaviour, and approaching the Ombudsman. Mr X says the Council’s responses to his reports were characterised by simply relaying what the developers said. When reporting a breach of hours on 8 August 2018, he said “You have multiple complaints from numerous residents but nothing ever gets done.” Having seen the correspondence and the repeated warnings from the Council to developers about formal enforcement action that were not followed up, there is some justification for Mr X’s views. Even in the matter of reversing alarms, where the Council eventually reached a clear view about why Developer B should not have to use white noise reversing alarms, many of Mr X’s communications were understandable. This is because the Council took until 2019 to produce a clear rationale. The environmental health department told the planning department on 27 January 2019 it needed Developer B to justify the line it was taking. Had the Council done this earlier, it could have answered Mr X’s arguments about the condition in the planning permission that required white noise reversing alarms unless there were good reasons why they were not suitable. In the absence of that clarity, it is not surprising he continued to report the use of the “wrong” reversing alarms.
  5. The letter said Mr X’s behaviour was rude, discourteous and insulting and amounted to harassment causing distress to staff, who were spending a large amount of time dealing with his communications. I have seen all Mr X’s communications. Almost all were polite. However, Mr X wrote in a sharp tone to the Chief Executive in 2019, demanding that she come again to his property and complaining she was now hiding behind junior officers. Normally, demands for a chief executive to become involved are symptomatic of unreasonable behaviour. In Mr X’s case, though the Chief Executive had no obligation to agree, his demand was not unreasonable. The Chief Executive had already been involved and the situation had not improved. There was a good reason for the Chief Executive not to be involved again (noise monitoring is a matter for an environmental health officer). But the mere fact that he had accused the Chief Executive of hiding behind junior officers when she had previously been personally involved did not make his communication unreasonable. As for the time it took to deal with Mr X’s emails, much of this was of the Council’s own making. This was because it had not offered him the chance to fill in diary sheets rather than sending individual emails via the Council’s system. It was also dealing with each email as a complaint rather than a report of a breach. And it was taking too long to move to formal enforcement action, which gave Mr X no confidence that he could stop reporting breaches, which in any case were continuing.
  6. The letter also referred to the “amount of emails and telephone calls, plus follow-up calls” Mr X made. It said they were “manifestly unreasonable and excessive”. Mr X provided copies of his telephone call logs. I also checked the records. There was no evidence in either of these of multiple telephone calls from Mr X or his wife, though his wife rang the Council twice in distress.
  7. Mr X’s view is that the content of the letter of 21 August 2019 was fabricated. Based on interviews with those involved in producing it, I do not agree. Instead, I find those involved acted according to the views they reached. Even if those views have turned out to be factually incorrect, that does not suggest any malicious intent on the part of officers. I have seen no evidence to support such a finding. However, given the claims made in the letter of 21 August 2019 about Mr X do not match the evidence I have seen, I find the Council at fault for writing to Mr X to designate him as a vexatious complainant.

Summary of fault found

  1. I find the Council at fault for:
      1. Taking too long to move to formal enforcement action between 2015 and 2017, and again between 2017 and 2019, despite breaches of working hours and consequent warnings to developers being repeated;
      2. Failing to give Mr X proper notice of its decision to abandon court action against Developer A in July 2017;
      3. Creating expectations of greater action than it was able to take by poor drafting of planning conditions in 2012 and the personal involvement of the Chief Executive in 2017;
      4. Taking too long to clarify to Mr X that there was a good reason for developers on site not to use white noise reversing alarms;
      5. Failing to reach a decision about noise from piling despite being given advance warning of a likely breach and asked for guidance by Developer C;
      6. Taking too long to respond to Mr X’s complaint of August 2017;
      7. Operating a policy for vexatious and unreasonable complainants that contains no requirement to warn such complainants first before imposing restrictions;
      8. Designating Mr X as a vexatious complainant without first giving him a warning; and
      9. Incorrectly claiming Mr X had said it was his “obsession and [his] ‘life’s work’ to close down the site and reverse the development consent”, as well as making other claims about Mr X’s behaviour that were not supported by evidence.

Injustice caused by fault

  1. The principal injustice of which Mr X complains is noise. He also complains of dust and damage to his property caused by vibrations from piling. However, not all these injustices have been caused by the Council.
  2. There are valid planning permissions for the site. The developers have given reasons that the Council is entitled to accept for using reversing alarms that are not of the white noise type. The Council has the power to agree amendments to planning conditions that would allow piling that exceeds them for periods. Building sites are unavoidably noisy and there can be some dust, however effective the wheel-washing, particularly during dry summer weather. And damage to property by a developer is a civil matter against the developer, where there is a potential court remedy.
  3. Mr X told me his wife suffers from tinnitus. This means noise affects her differently and usually worse than other people. However, I have seen no evidence the Council was aware of this. And I would not expect the Council to impose specific conditions on development for that reason.
  4. Despite the previous paragraphs, the faults found caused Mr X and his wife additional injustice above that which could have been reasonably expected.
  5. First, they experienced noise for longer than they should have done. While much of the noise was unavoidable, it started too early on dozens of occasions. It also carried on too late on some occasions. And it occurred on some days when there should have been no working. While the Council took the view in its letter of 21 August 2019 that some of the time breaches were minor, many were not. Mr X and his wife lost quiet time, which was important given there could properly be up to ten hours per day of building noise on weekdays and five and a half or six hours on Saturdays. Without effective enforcement action, this is likely to continue.
  6. Next, Mr X and his wife have not only suffered the injustice of disturbance at times when they should not have done. The failure of the Council to enforce working hours effectively has meant they have had no peace of mind about quiet times of respite from the building noise for the last four years. They have been constantly anxious about whether the non-working hours would be respected. This anxiety continues.
  7. Third, Mr X has had to report breaches of working hours for over four years, using the only system available. That has been unnecessary time and trouble for him. He was also caused inconvenience by the short notice of the abandonment of court action in 2017 as he was due to give evidence. He also had to chase the late response to his consequent complaint. I am not persuaded by the Council’s suggestion that Mr X might have made just as many contacts if he had been able to supply diary sheets.
  8. And the Council’s delay in escalating enforcement, allied to the problems its own internal email identified by planning conditions raising expectations it could not deliver, has clearly created frustration on Mr X’s part. This frustration is that, despite its promises, the Chief Executive’s personal involvement and eventual attempts at formal action, nothing has changed. He told me at interview that, though he no longer reports working hours breaches to the Council, they continue almost daily. He has lost confidence in the Council.
  9. Finally, Mr X is distressed by the Council’s designation of him as vexatious. When he received the letter, he telephoned me. His distress was evident in the call. When I met him at the Council’s offices for interview, he said he was worried about coming into the building. His demeanour was consistent with that. He has felt unable to report the continuing breaches of working hours he has recorded. Given the content of the letter, repeated in a further letter of 20 September 2019 from the Council when he made a subject access request, that is a reasonable reaction on his part.

Agreed action

  1. The Council has already apologised for taking too long to deal with Mr X’s complaint of August 2017, and for the inconvenience caused when it did not tell him of its decision to abandon court action. I welcome that.
  2. However, to remedy the injustice caused by fault the Council will immediately:
  • Reverse its designation of Mr X as a vexatious complainant; and
  • Provide Mr X with diary sheets, allowing him to record potential breaches of planning control.
  1. Within one month of the date of the final decision, the Council will also:
  • Apologise to Mr X for its failure to escalate enforcement action about working hours in a timely way, taking too long to check and clarify the position about reversing alarms, taking too long to reach a decision about noise from piling despite advance warning, raising expectations it could not satisfy, and designating him as a vexatious complainant without warning and making claims in the letter of designation that were not correct; and
  • Pay Mr X £2600, made up of £1000 for severe distress caused by being wrongly designated as vexatious and unable to report continued breaches, £500 for the loss of quiet time for him and his wife, principally in the mornings, over four years, £500 for the couple’s loss of peace of mind in never knowing if the non-working hours would be respected, £250 for his time and trouble in continually having to report the same breaches, £100 for the inconvenience caused by the Council’s abandonment of the court action at short notice, and £250 for his frustration and loss of confidence in the Council.
  1. Within three months of the date of the final decision, the Council will also:
  • Carry out at least three unannounced visits to the site, at least one per month, at appropriate times of the day to ensure the developer is complying with relevant conditions, particularly hours of work. The Council should keep records of these visits, and a written analysis of Mr X’s diary sheets. The Council should keep visiting the site on a monthly basis until the development is completed;
  • Report back to the Ombudsman at the end of the three-month period, giving details of the site visits made, and its analysis of Mr X’s diary sheets; and
  • Review its policy for vexatious and unreasonable complainants to make sure any such complainant is warned about any behaviour that falls within the scope of the policy and is given the opportunity to change that behaviour before being designated as vexatious.

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Final decision

  1. I have upheld the complaint and closed the case as the Council has agreed to provide a suitable remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman

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