Summary: Mr X complained the Council failed to protect him and his family from the impact construction work has had on their health and amenity. There was no fault in the way the process by which the Council made its decisions.

The complaint

1. Mr X says the Council has failed to protect him and his family from the impact of construction of a large housing estate on land near his home.
2. Mr X says that because of the Council’s failure to act, his and his family’s amenities and health have been affected by noise, vibration, dust and mud from the site.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I read the Council’s response to my enquiries and Mr X’s comments on the response.
6. I gave the Council and Mr X an opportunity to comment on an earlier draft of this decision, but received no comments in response.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by:
• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and
• traffic from construction vehicles.
12. While construction management conditions may help lessen the impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
13. Councils have a range of options outside their planning powers to deal with problems caused by construction on building sites. Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served using powers under the Control of Pollution Act 1974.
14. 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.

What happened

15. Mr X and his family live in a house that is part of an earlier phase of a large housing development. The Council approved the development subject to planning conditions to manage construction on the site.
16. Mr X and other residents complained to the Council about the impact construction works were having on their lives. The complaints covered a range of issues, from dust and mud on roads, noise and vibration from piling, and working outside approved hours and construction vehicles parking on the highway.
17. The Council formed a forum so officers, local members, officers and residents could discuss complaints and potential resolutions. The Council provided records which showed the complaints were considered by the Council’s planning enforcement and environmental protection officers. The records show a range of outcomes, from out-of-hours visits, noise monitoring, contacts with site managers and the local MP. There was no formal action in the magistrate’s court for breaches of planning condition and environmental protection officers found no evidence of statutory nuisance.
18. Mr X has been engaging with the Council for over a year about problems caused by construction and is dissatisfied with its approach, as he believes there is plenty of evidence that would have supported formal action. He does however accept that there have been some positive changes and appropriate safeguards are now being promoted by councillors responsible for planning functions.

My findings

19. We are not an appeal body and in the absence of fault, we cannot agree or disagree with the decisions councils make. Our role is to review the process by which planning decisions are made. If we find fault in the decision-making process, we must then decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome of the decision would have been different.
20. The records the Council provided show it considered allegations, carried out investigations and took decisions on how to use the powers it has at its disposal. It has not taken formal court action, but I have not seen any evidence of fault in the decision-making procedure or errors in law. Mr X believes the Council could have done more, but I cannot comment on the judgements the Council and its officers make in the absence of fault in the decision-making process.

Final decision

21. I completed my investigation as there was no fault in the way the Council made its decisions.

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Investigator's decision on behalf of the Ombudsman