Summary: There is no fault in the way the Council has monitored compliance with planning conditions on a development site next to
Mr X’s home.

The complaint

1. Mr X complains the Council has failed to control construction work on a site near his home. He says the construction company work outside of allowed hours and failed to control dust from the site affecting the surrounding area. Mr X says the Council served a notice on the developers but failed to follow up on this when the disruption continued.
2. Mr X says the Council’s failings have caused him significant distress as a result of noise, vibration and dust from the site. He said he has also been put to time and trouble raising issues with the Council.

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The Ombudsman’s role and powers

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) Mr X complained to the Ombudsman in July 2020 and so I have investigated events since July 2019.
4. 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)
5. 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

6. I have considered the information Mr X has provided to the Ombudsman. I have also considered the Council’s responses to my enquiries which includes details of complaints Mr X has made about the site.
7. Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Planning enforcement

8. 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)

9. When a local planning authority grants planning permission it will often attach planning conditions to control the use of the development and associated land. This is usually to protect the interests of nearby residents.
10. If a planning condition is breached then the local planning authority will investigate and if necessary serve a breach of condition notice requiring the owner of the land to comply with the planning conditions. The notice will usually give a timescale within which he owner of the land should comply with the notice. This is usually 28 days but can be longer.
11. The law says if, at the end of the period allowed for compliance with the notice, the “person responsible”:
• Has not ensured compliance withal the conditions specified in the notice; and
• Has not ensured that any specified steps have been taken, or any specified activities have ceased, he or she is in breach of the notice and guilty of an offence.

(Town and Country Planning Act 1990, section 187A (8) & (9))

12. It is a defence against prosecution for a person charged with breaching a notice if they can show that they took all reasonable steps to secure compliance with the notice or they no long have control of the land.

What happened

13. The Council granted planning permission for a housing development next to
    Mr X’s home. The planning permission contained conditions restricting hours of operation whilst the development was being built as well as other conditions relating to how noise and dust from the site would be managed.
14. Mr X made complaints to the Council about operations on the site in March, April, June and September 2018. He made further complaints to the Council in February and March 2019 about the developer working outside permitted hours.
15. Mr X complained to the Council in September 2019 to say that the developer was again working outside of hours permitted in the planning condition.
16. On 16 September 2019 the Council issues a breach of condition notice on the developers due to failure to comply with working hours restrictions. The notice said the developers had to comply within 28 days of the notice being served.
17. Mr X complained again about the developer working outside of permitted hours on 21 October 2019. Mr X provided evidence in the form of video footage showing heavy goods vehicles moving on site and deliveries taking place. In his complaint Mr X said he had been away for a period of time and so was unable to comment on whether other breaches had taken place since the Council served the developer with a notice.
18. The Council sought advice on whether it could proceed with prosecution for breach of condition given it had already served the developer with a notice.
19. The Council responded to Mr X’s complaint on 4 November 2019. It explained the action it had taken so far and said it acknowledged his further report of a breach of conditions. The Council said it would continue to monitor the site and take further action if there was a “persistent” breach of planning conditions.
20. Mr X made further complaints to the Council about the developer working outside of hours permitted on 22 May regarding dust from the site. He then complained again on 11 and 12 July 2020 about the developers working outside permitted hours.
21. The Council wrote to the developers about the issue of dust from the site and received assurances that proper measures were being put in place. The Council also wrote to the developers about work taking place outside permitted hours and were informed that there were new contractors on site who had since been reminded about hours of work.
22. In it’s response to my enquiries on 23 April 2021 the Council said it had not received further complaints about the site since July 2020.

My findings

23. I have not looked at events prior to July 2019. If Mr X was unhappy with the Council’s response to activity on site he could have complained to the Ombudsman sooner.
24. There is no fault in the way the Council has dealt with breaches of planning conditions on the development site since July 2019. The Council has issued a notice following complaints and then gone on to monitor the site.
25. Mr X has complained about four instances of planning conditions being breached since the Council issued a notice. The Council cannot take action simply because the notice has been breached. It must be satisfied that the developer was not taking steps to comply with the condition. The Council has contacted the developer on each occasion and been assured that these are isolated incidents. Therefore, there is not fault in the Council not taking further action.

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Final decision

26. I have completed my investigation as I have found no fault by the Council.

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Investigator's decision on behalf of the Ombudsman