Summary: Mr X complains the Council has failed to take effective enforcement action against a developer, causing him to suffer noise disturbance. The Ombudsman finds no evidence of fault in the Council’s decision not to take action.

The complaint

1. Mr X complains the Council has failed to take effective enforcement action to ensure a developer complies with planning conditions. The developer starts works before 7am, disturbing Mr X and others.

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What I have investigated

2. I have investigated Mr X’s complaints about the Council’s actions from January 2019. At the end of this decision I have set out why I have not investigated other matters.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
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 spoke to Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision.

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What I found

Planning enforcement

8. Planning enforcement action is discretionary. A council may serve an enforcement notice if it considers it is expedient to do so. It is for the planning authority to decide whether it is expedient to take action: a council does not have to carry out enforcement action simply because the public wants or expects it to.

Council policy

9. The Council publishes its enforcement policy on its website. After receiving a report about a potential breach of planning control it will:
• acknowledge the report within 10 working days;
• carry out an initial assessment;
• prioritise it by considering the nature and scale of any irreversible damage and the impact of delaying action;
• try to seek an informal resolution by negotiation, unless there is significant risk of irreversible harm to high priority areas, for which it may take more formal action;
• let the complainant know the outcome of the investigation.

What happened

10. In 2005 the Council granted planning permission for a major development near Mr X’s home. Of relevance to this case, the Council imposed a planning condition that operations could only take place between 7am and 6pm Monday to Friday and between 7am and 1pm on Saturdays. This was in the interests of amenity and to minimise disturbance from activities on site and the traffic generated by such.
11. In January 2019 Mr X complained to the Council the developer was operating outside of hours.
12. The Council told Mr X it had carried out a site visit, sent a letter to the developer advising of the need to comply with planning conditions and, served a Planning Contravention Notice (“PCN) on 25 February 2019. (A PCN requires a person to provide information to the Council about a suspected breach of conditions).
13. The developer told the Council staff arrived on site from 5.30am but vehicles and machinery did not operate until 7am. It therefore considered it acted in accordance with planning conditions.
14. In March Mr X complained the developer continued to operate out of hours; the Council had not kept him updated on its actions and; it should have acted sooner.
15. The Council told Mr X it had checked CCTV and found no operations causing noise outside of hours. Therefore, it closed its investigation.
16. Mr X was unhappy with the Council’s response.
17. The Council confirmed it had addressed his complaints and monitored the developer through site visits. It also explained that it investigates a complaint and, if it decides to take no further action it closes the case; it does not leave cases open.
18. Mr X complained to the Ombudsman. He explained upon each complaint the developer had complied with the conditions briefly but then resumed out of hours working. He therefore wanted the Council to continue to monitor the site to ensure compliance.
19. In response to enquiries the Council explained that although there was a technical breach of conditions, this was only for workers to enter the site, open the office and carry out safety checks. It did not consider this caused any disturbance or otherwise affected residential amenity. It therefore did not consider it expedient to take formal enforcement action as it concluded the developer was not causing harm.

Findings

20. The Council has discretion whether to take enforcement action in response to a breach of planning control. It is not within my remit to say its decision to take action or not is wrong. However, I can consider if the Council acted in line with law and policy and followed a proper decision making process.
21. The Council investigated Mr X’s complaint and tried to resolve the matter informally through communications with the developer. This is in line with its policy. Upon Mr X’s further complaint the Council investigated again and found no breach that caused a noise disturbance. It explained to Mr X why it would not take further action. I find this is also in line with its policy.
22. The Council has explained it decided not to take enforcement action for the technical breach because it took the view this was not causing any harm to amenity. I am satisfied the Council considered relevant information and applied the correct test in deciding whether to act.
23. I appreciate Mr X may disagree with the Council’s decision. However, the Council acted in line with its policy and followed a proper decision making process. Therefore, I cannot find the Council at fault.
24. I acknowledge Mr X wants the Council to continue monitoring the site. However, the Council is under no obligation to do so. The Council must investigate Mr X’s complaints but it then has discretion as to what action it takes.
25. Mr X is unhappy with the Council’s communications with him. However, I note the Council has already apologised for this. I am satisfied with the Council’s action and so I do not find fault.

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Final decision

26. I have completed my investigation. This is because I find no evidence of fault in the Council’s decisions on planning enforcement.

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Parts of the complaint that I did not investigate

27. I have not investigated Mr X’s complaints about matters that arose more than 12 months ago. This is because these were not ongoing, it is unlikely I would find fault and, there is no other good reason to exercise discretion.

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Investigator's decision on behalf of the Ombudsman