Summary: Mrs X complains about the Council’s handling of a planning application for a large development next door to her home and how it has dealt with her complaints about noise, dust and out of hours construction work. There is no evidence of fault in the Council’s approach to Mrs X’s nuisance complaints. The Council has already apologised for delay in responding to complaints about its service, which was an appropriate remedy for this fault.

The complaint

1. The complainant, who I have called Mrs X, is supported in making her complaint to us by her son, who I have called Mr Y.
2. Mrs X complains about the Council’s handling of the planning application process in relation to a large development neighbouring their home. Mrs X says the Council has failed to comply with planning rules in its consideration and granting of the planning application in 2016.
3. Mrs X says the result is the developer has repeatedly breached planning conditions in respect of working hours and pollution. Mrs X complains the Council has not properly enforced planning conditions or taken action to address the noise, dust and other air pollutant nuisance complaints that they and other residents have made.
4. Mrs X wants the Council to revoke planning permission to stop the developer from causing further harm to her, her family and neighbours’ health. Mrs X also wants the Council to take action against the developer for planning condition breaches and statutory nuisances.
5. Mrs X wants the Council to compensate her for the detrimental impact of the development on her health and enjoyment of her home.

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What I have investigated

6. I have explained to Mrs X and Mr Y that I am not investigating any complaints they have about the Council’s handling of the developer’s planning application. This is because planning permission was granted in 2016 and any complaints Mrs X now has about the Council’s handling of this are considerably out of time. There is evidence the Council notified Mrs X of the development and sought her comments twice during the planning application process. I am therefore not persuaded Mrs X was unaware of development of the site and could not have brought her complaints about the planning application process to us sooner.
7. I am also unable to investigate any concerns Mrs X and Mr Y have raised about the impact of the development on their neighbours. This is because these individuals have not given consent for Mrs X and Mr Y to complain to us on their behalf.

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The Ombudsman’s role and powers

8. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
10. 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)
11. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

12. 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

13. I have spoken to Mr Y and considered the information he and Mrs X have provided in support of their complaint.
14. I have considered the information the Council provided in response to my enquiries.
15. Mrs X, Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Statutory Nuisance

16. The Environmental Protection Act 1990 states that smoke, gases/fumes, dust, steam, odour, deposits or noise emitted from premises, including land, can be a statutory nuisance. If someone living in a council’s area complains about a statutory nuisance, the council must ‘take such steps as are reasonably practicable to investigate the complaint’.
17. For the issue to count as a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or,
• injure health or be likely to injure health.

18. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
19. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
20. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
21. If a council is satisfied that a statutory nuisance exists, or is likely to occur or recur, it must serve an Abatement Notice on the person responsible for the nuisance, or on the owner or occupier. The Council can prosecute someone if they fail to comply with an Abatement Notice.
22. When the nuisance is created by construction works, section 60 of Control of Pollution Act 1974 (CPA) gives councils the power to serve a notice imposing requirements as to the way in which construction works are to be carried out. The notice can specify any of the following:

• a noise level;
• the plant or machinery that can be used;
• the hours when work can be done;
• steps that need to be taken to minimise noise.

23. Those failing to comply with the notice can be prosecuted and fined an unlimited amount, with further fines for each day that they fail to comply.
24. Section 61 of the CPA allows developers to apply to the Council for ‘prior consent’, allowing them to undertake activities which may generate noise and vibration during construction of a development.
25. The developer’s application for s.61 consent should set out the intended works, the working hours and a site plan to show how it will reduce any potential impact to neighbouring residents using ‘best practicable means’.
26. Councils will not grant prior consent if the developer has already started construction, other than minor preparatory works, at the time of submitting the application. Developers must submit applications to the Council at least 28 days before any planned works begin.
27. Provided the developer carries out any proposed works in line with the consent given by the Council, it will become immune from any formal action against nuisance caused by vibration and noise.

Planning Conditions and Enforcement

28. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
29. 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.

30. 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.
31. 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.
32. 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.
33. Councils can take enforcement action if they find planning rules have been breached. But they do not have to take enforcement action just because there has been a breach of planning control. Section 171A of the Town and Country Planning Act 1990 provides a breach of planning control as:

• the carrying out of development without the required planning permission; or,
• failing to comply with any condition or limitation subject to which a council has granted planning permission.

34. Addressing breaches of planning control without formal enforcement action can be the quickest and most cost-effective way of achieving a satisfactory outcome.
35. In deciding whether it is expedient to start enforcement action, a council can take account of several different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between protecting amenity and permitting development which is acceptable.
36. The Council’s own policy for planning enforcement states:

“Except in cases where unauthorised development is causing harm or conflicts with established development plan policies, we must give the responsible party a reasonable opportunity to make amends. However, if they fail to make the requested changes within agreed timescales, we will consider the expediency of the issue of a formal Enforcement Notice specifying the actions required to resolve the breach and a deadline for compliance.”

What happened

37. Mrs X and Mr Y live in a social housing property. In 2007, the High Court granted approval on appeal for development of a site next door to the block in which Mrs X and Mr Y live. In 2016, the Council granted planning permission to a developer (Company Z) for a large development on the site including more than 600 residential properties, retail and commercial units.
38. Demolition works started on the site in 2017. Conditions within the planning permission meant Company Z had to seek approval of this work from the Council before starting. Company Z submitted construction management and site environmental management plans to the Council before work commenced. This included real time monitoring of dust, noise and vibration at various points around the perimeter of the development site. The monitors were set to record trigger and action events in line with the levels set out in the Council’s planning conditions. The planning permission also included provision for a dedicated Environmental Services Officer to have regular oversight of the development as it progressed. This Officer’s role was to monitor, assess and visit the site and liaise with Company Z to ensure it complied with planning and building regulations.
39. Mr Y has complained to the Council about the impact of demolition and construction works were having on his, Mrs X’s and other residents’ lives. The complaints covered a range of issues including noise, dust, vibration, loss of light and working outside approved hours.
40. The designated Environmental Services Officer has been corresponding with Mr Y about these issues since the end of 2019. On 20 January 2020, Mr Y submitted a stage one complaint to the Council about the planning application process and the loss of light and noise disturbance caused by construction works. Mr Y asked the Council to revoke planning permission because of the detrimental impact the development was having on neighbouring residents.
41. The Council responded on 7 February 2020. It explained there was no right of appeal against planning application decisions for third parties such as Mr Y. The Council also explained the consideration the Planning Officer and Committee made before granting permission and the conditions that had been put in place to mitigate the impact on neighbouring residents. The Council’s response also detailed the action it had taken to address out of hours noise complaints it had received, and that Company Z was installing acoustic fencing to help mitigate the impact of construction noise. The Council told Mr Y that in addition to the quarterly construction liaison meetings Company Z already held, it had offered to meet separately with Mr Y and any other residents to discuss and try to resolve any issues they had. The Council confirmed it had not upheld Mr Y’s complaints but hoped the measures Company Z had offered would help address the problems Mr Y had reported.
42. Mr Y remained dissatisfied and escalated his complaint to stage two on 19 March 2020. Mr Y raised concerns about –
1. the Council failing to get Company Z to halt works because of the COVID-19 pandemic and the impact of this on vulnerable residents;
2. positioning of noise and dust monitors;
3. loss of light;
4. out of hours work and associated noise;
5. obscure details around neighbourhood planning;
6. failure to provide statutory services and the duty of care; and,
7. historic lack of transparency from the Council and Company Z.
43. The Council responded to Mr Y’s stage 2 complaint on 19 May 2020. The Council apologised for the delay in responding to Mr Y’s complaint and that it had not communicated better with him. In response to each of the above points, the Council explained:
1. it had no powers to prevent Company Z from working on the site during lockdowns and that government guidance allowed construction work to continue in a COVID-19 secure way.
2. that noise and dust monitors had been positioned at the perimeters of the site nearest where work was taking place and in a way that enabled Company Z to maintain and calibrate the sensors. These monitors would be moved as work on the site progressed to obtain readings representative of the levels experienced by neighbouring residents.
3. that loss of light and associated objections had been considered by the Planning Committee, but it had felt the benefits of the development outweighed the impact on neighbouring residents.
4. That all five reports of out of hours noise had been investigated and addressed with Company Z. The Council confirmed it had issued cautions for noise to Company Z and was satisfied this was a proportionate response. The Council explained emergency situations had arisen on the development site out of hours which Company Z had to immediately address. It had reminded Company Z to keep neighbouring residents and the Council informed of any instances when emergency works out of hours might be needed in future. Company Z was installing acoustic fencing to help mitigate the impact of noise on neighbours.
5. how the Planning Committee had considered the impact of the development on neighbourhood resources and how this was being addressed through financial contributions from Company Z to support the infrastructure in the surrounding community.
6. what had happened when Mr Y had contacted various officers in the Planning Enforcement Team between the end of 2019 and May 2020. The Council explained the reasons for delays in returning Mr Y’s calls by the team and not keeping to appointments arranged. The Council apologised that contact with Mr Y had not been better.
7. all residents had been sent written invitations to liaison meetings with Company Z and that the first newsletter about the construction project was delivered by hand to all neighbours, which asked everyone to sign up to a distribution list for the electronic mailing of future newsletters. The Council explained Company Z had also included representatives from each block in the neighbourhood, local businesses and local Councillors in its distribution list. The Council said Company Z would now be sending paper copies of its newsletter to residents in Mr Y’s block given their limited access to email. The Council confirmed that Company Z would be inviting residents from Mr Y’s block to all future meetings about the development to help provide advance warning of any future permitted out of hours work on the site.
44. Mr Y continued to have contact with the Council about his concerns regarding the development. On 22 June 2020, the Council explained the action it had taken to address out of hours noise on the site and about the various occasions when Company Z had obtained consent to complete work out of hours under section 61 of the Control of Pollution Act 1974. The Council confirmed it had decided not to take any further action for noise disturbance against Company Z as a result.
45. On 10 July 2020, the Council responded to further comments from Mr Y about the development site. The Council explained it had already addressed most of Mr Y’s concerns but provided more information about how Company Z was allowed to continue working on the site during the COVID-19 pandemic and lockdown. The Council explained an emergency with a water leak on site had meant Company Z had had to work out of hours during the 10 April Bank Holiday.
46. The Council sent Mr Y a further final response on 25 August 2020. It upheld complaints about delay in responding to Mr Y at stage one and two of the complaint procedure. The remainder of its response explained how the Council had already addressed Mr Y’s concerns. The bulk of the Council’s response related to addressing inaccuracies in the information considered by the Planning Committee in respect of loss of light. While the Council accepted there had been an error in the information presented to the Planning Committee, this was unlikely to have materially altered the conclusions the Committee reached in granting permission to the development.
47. Mr Y brought Mrs X’s concerns to us at the end of July 2020 because they remained dissatisfied with the Council’s responses. I understand Mr Y has continued to report concerns about the development to the Council as it invited him to and that it continues to address these as they arise.

Analysis

48. When a council receives a complaint about unauthorised development or breach of planning condition(s), it has duty to investigate. If a breach of planning control is found, a council’s next duty is to take a view on whether it needs to act. The key issue is whether the alleged breach would unacceptably affect public amenity or the existing use of land or buildings meriting protection in the public interest. When deciding whether enforcement action would be appropriate, the test is therefore whether, in the interests of public amenity, enforcement action would be expedient.
49. In effect a council applies two tests: the ‘amenity’ test and the ‘expediency’ test. First who or what is harmed by the development and secondly, if the breach does cause harm, is it expedient to act. Councils have power to enforce but they have no duty to do so. Moreover, if a council decides that enforcement action is appropriate, it is obliged to follow government guidance which says that any action it takes should be proportionate and commensurate with the breach of control to which it relates.
50. In summary, failure to comply with a planning permission would not automatically trigger formal action by a Council. At every stage, councils have a duty to work towards amicable resolution with formal action being a last resort. That is not to say they should resist formal action if that is appropriate. A council must weigh each case carefully and has a duty to ensure public confidence in the system is not undermined.
51. Councils often impose construction management conditions on approvals for major developments. These conditions are aimed at giving leverage to councils so they can provide some protection for existing residents from a degree of inevitable disruption. They are aimed at lessening the impact rather than entirely avoiding it.
52. The Council has not taken formal action by serving a breach of condition notice. It has judged the developer to be compliant and co-operative and, because of this, decided that formal action would be unreasonable.
53. We are not a planning appeal body. Our role is to review the process by which planning enforcement decisions are made. Where we find fault in the decision-making process, we decide whether it caused an injustice to the complainant. To do this, we need evidence to show that, but for the fault, the outcome would have been different.
54. Government guidance says formal enforcement action should be the last resort and councils are encouraged to resolve issues through negotiation and dialogue with developers.
55. The evidence here shows the Council was aware of residents’ concerns, aware of its powers under the Town and Country Planning Act 1990 and carried out investigations that it considered proportionate before making its decisions.
56. Based on the information provided, I am satisfied the Council properly discharged the relevant planning conditions and responded to reports from Mr Y on Mrs X’s behalf. The Council has provided evidence it regularly visited the site and raised issues as necessary with the developer. The Council has also provided cogent reasons for its decisions to discharge the relevant conditions and that formal enforcement action was not expedient. These were decisions the Council was entitled to reach, and its use of an informal approach is not evidence of fault.
57. I have a great deal of sympathy for Mrs X, Mr Y and their neighbours’ situation. I can appreciate their frustration and distress at the level of noise and disruption that is inevitably caused by any major construction works. I also recognise how the impact of this will have been greater given the restrictive nature of the periods of lockdown we have all experienced due to the COVID-19 pandemic. While I can understand why Mr Y believes the Council should have done more and he disagrees with the approach it took, I cannot comment on the judgements the Council has made in absence of fault in the decision-making process, nor do I accept that this difference of opinion is evidence of fault. In his comments on the draft version of this statement, Mr Y expressed his strong disagreement with my findings.
58. There was fault caused by the Council’s delay in responding to Mr Y’s complaints. The Council’s procedure states a timescale of 10 working days for responses at stages one and two of the process. In this case, the stage one complaint response took 14 working days and stage two took 62 working days. The Council has already accepted it took too long to respond to Mr Y’s complaints and has apologised for the delays. This is an appropriate remedy for the injustice caused and as such I do not consider I need to make any further recommendations to remedy this fault.

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Final decision

59. I have completed my investigation with a finding the Council has sufficiently remedied the fault in this case.

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Investigator's decision on behalf of the Ombudsman