Summary: Mr D complains about a lack of planning enforcement action regarding noisy building works occurring outside permitted hours. The Ombudsman has found some evidence of fault by the Council because it has delayed issuing a formal decision to Mr D. He has upheld the complaint and completed the investigation. The Council agrees to the apologise and write to Mr D.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council has failed to take enforcement action for repeated breaches of planning control at sites near his home. He says since May 2019 builders have breached the working hours condition causing him disturbance.

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The Ombudsman’s role and powers

2. 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)
3. 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. 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 have considered the information provided by Mr D. I asked the Council questions and carefully examined its response and case file.
6. I shared my draft decision with both parties and considered their responses.

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What I found

What happened

7. The Council granted planning permission for construction on sites near Mr D’s home (I refer to these as the site). The planning conditions included restricting working hours at the site to 8 am start time weekdays and 9am on a Saturday.
8. In May 2019 Mr D contacted the Council about early morning noise at the site. He submitted a further report in June. The Council referred the case to its Planning Enforcement Team to investigate. The case was allocated to a Planning Enforcement Officer (PEO). She contacted the Developer and reminded them about the working hours. Mr D submitted further reports of noise with works starting 10 and 25 minutes early. The PEO told the Developer she would start randomly visiting the site to monitor if the working hours were being complied with. On 30 July she emailed Mr D that she would be monitoring the site. The Council needed to “witness several significant breaches” before it could consider formal enforcement action. On 6 August, the PEO visited the site and heard a brief spell of noise at 7.50am. She wrote to the Developer again reminding them of the need to keep activity within the approved hours. Also, that day, Mr D asked the PEO what would constitute a significant breach.
9. On 14 August, the Developer emailed the PEO that it would put a plan of action together regarding breaches of permitted hours. The PEO replied to Mr D’s query on 15 August. The Council would make a cumulative judgement on all of the information received from site visits including times and breaches and noise levels. The PEO responded to further reports in August by site visits. She heard noise from 7.45am and spoke to the builders and contacted the Developer.
10. In September, the PEO made additional visits to the site and did not witness any breaches. On 11 September Mr D told the Council the problem was ongoing. The PEO replied the same day. She had been visiting the site and seen workers there before 8am which was permitted. She had also at times witnessed brief spells of noise and had spoken to the Developer about this. She would continue to monitor the situation. The PEO carried out more visits in September and October and found no significant breaches.
11. Mr D says further incidents occurred in early 2020 and again in the Summer. The PEO visited the site in August 2020 and witnessed some noise before 8am. She spoke to the builders and developer about the permitted hours. A further visit in September found no breaches. In December, the Ombudsman started his investigation.
12. The Council says that it has not issued a final decision to Mr D because it kept the case open during my investigation.

What should have happened

13. When the Council grants planning permission, it can attach conditions to mitigate the impact on resident’s amenity including restricting working hours.
14. The Council investigates reports of breaches of planning control, this includes a builder not adhering to planning conditions. The matter is referred to the Planning Enforcement Team and the case is allocated to a PEO to consider. The PEO will assess the evidence and may carry out site visits. The PEO has to assess whether any breaches of planning control are minor or significant. That decision making is on a case-by-case basis but takes into account the time of the breach and the level of noise.
15. 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)

16. If the PEO finds minor cumulative breaches, there is no duty on the Council to take formal enforcement action.
17. The Council should notify the complainant about any decision reached on the case.

Was there fault by the Council

18. There is some evidence of fault by the Council.
19. The Council has not yet issued a decision to Mr D. It says it held the case open because of the Ombudsman’s investigation. However, I would have expected the Council to reach a decision by early 2020 given there was a pause in reports from Mr D and several site visits had been made to gather evidence. It is unclear to me why the case remained open despite no documented reports of a problem from Mr D for eight months. Given the Ombudsman is not considering the merits of decisions taken by the Council, our involvement did not prevent the Council from formally notifying Mr D of its decision.
20. The Developer notified the Council in August 2019 it would draw up a plan regarding noisy work outside permitted hours. There is no evidence this was received by the Council or chased up. When I asked the Council about this omission it said the relevant team “are not aware of any plan” and suggested it may be a different Service Area that had dealt with this. I find it a matter of concern the Council was not aware of this action given it is listed in its own chronology of events. I would have expected the PEO to have chased this document. That said, whilst I find fault, I explain below why I do not consider this resulted in an injustice to Mr D.
21. I understand Mr D disagrees with the Council’s view that formal enforcement action is not appropriate. I do not see evidence of significant fault in how the Council assessed the reports about breaches of planning control. PEOs visited the site several times but did not witness activity sufficient to warrant formal action. The Ombudsman will not question the merits of such decisions by the Council where there is no fault in how the decision was reached. That applies to this case.

Did the fault cause an injustice

22. Mr D has had to wait 12 months longer than necessary for a formal decision on his complaint from the Council. I appreciate the Council has, in its contact with Mr D, explained that it had not found evidence to warrant enforcement action at that time, but a written formal decision is necessary to fully explain the Council’s thinking. Mr D was left with some degree of uncertainty about what might happen as long as his case remained open.
23. I cannot say the failure to chase up the Developer’s plan caused a significant injustice. Given the Council did not witness any significant breaches it is impossible for me to say the presence of a plan would have prevented any incidents.

Agreed action

24. The Council has agreed to my recommendations and will:
• Send Mr D a letter of apology;
• If the Council is ready to make a formal decision on the case it should write to Mr D explaining how that view was reached;
• The Council should also ensure it documents its decision-making process when deciding to close a case (for example a contemporaneous note if the decision arises from a group discussion).
25. The Council should carry out these actions within four weeks of this case closing.

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Final decision

26. I have upheld the complaint and completed the investigation.

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Investigator's decision on behalf of the Ombudsman