Summary: Mr X complained the Council failed to enforce a construction site management plan that it approved as part of planning conditions for a development near his home. The Council was not at fault.

The complaint

1. Mr X complained the Council failed to enforce a construction site management plan that it approved as part of the planning conditions for a development near his home. He says the lack of enforcement has caused him distress and inconvenience. He wants the Council to accept it should have enforced the site management plan and provide a financial remedy to acknowledge the distress and inconvenience caused by the lack of enforcement action.

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The Ombudsman’s role and powers

2. 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)
3. 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 Mr X’s complaint and spoke with him about it on the phone.
6. I made enquiries of the Council and considered information it sent me.
7. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

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What I found

Planning background

8. 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. 
9. While construction management conditions may help lessen the harmful 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 breaches of planning controls, that cause demonstrable harm to the public.
10. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
11. The purpose of the planning case officer’s report in the planning process is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Although the courts have made it clear that case officer reports do not need to be perfect, they should show the officer considered the key issues when making their judgements.

What happened

12. In November 2019, developers started work to build two properties on a site near Mr X’s home. Approval for the development was granted several years earlier. The approved planning permission included a condition with a construction site management plan. This included details of the site operating hours and arrangements to manage site traffic, deliveries and pollution. Due to issues with land ownership, the developer had submitted a further planning application in 2019 to the Council to amend the position of the site access. The newly proposed access was now via the road on which Mr X lived. road.
13. Mr X complained to the Council. He said since the work had started, contractor vehicles were blocking the road, causing disruption, and using private land as turning space.
14. The Council contacted the developer’s agent about Mr X’s concerns. It asked them to remind their contractors to be considerate when making deliveries to the site and not to park on private land. It told Mr X of its actions but said it could not comment further about contractors parking on private land as this was a private matter and not Council responsibility. It also said it was not responsible for the public highway and gave details of the relevant highways authority. It said its responsibility related solely to the conditions on the construction site.
15. In January 2020, Mr X contacted the Council again. He said the work was continuing to cause significant disruption for him and other residents. He said contractor vehicles were blocking roads, taking up most of the on-street parking, destroying local pavements and grass verges and heavy deliveries were arriving outside of the agreed hours. He said the developer was not complying with the construction management plan agreed as part of the planning conditions and the Council should stop the work until it could demonstrate compliance.
16. The Council contacted the developer’s agent again to raise Mr X’s concerns. It reminded them not to park on the private land, not to store items off site and advised them to ensure deliveries were in smaller vehicles so they could access the site.
17. Mr X was dissatisfied with the Council’s response to his concerns and submitted a formal complaint. He said:
• the developer had started work before the Council had decided the application to change the site access;
• contractors arriving and leaving the site were causing disruption to local residents and damage to the roads, kerbs and grass verges; and
• he had told the Council of the problems since November 2019, but the Council had not taken sufficient enforcement action.

He asked the Council to stop the development until the developer showed it could comply with the construction management plan.

18. The Council responded to his complaint at stage 1 of its complaints procedure. It said the houses under construction had already been granted planning permission. Although the Council was currently considering an application to vary the permission to allow access from a different route, the Council could not stop the development proceeding whilst it made this decision.
19. It said its officer had recently visited the site and had discussed Mr X’s concerns with the site manager. They discussed how the developer could improve matters to ensure less disruption for local residents and reminded them work should only take place within permitted hours. It said the developer had agreed to submit a revised site management plan to the Council to improve the situation and the Council was currently awaiting details of this. It said disputes over private land and concerns related to obstruction of vehicles caused by parking or deliveries on the public highway was out of its jurisdiction and the Council had no powers to take any enforcement action on these matters. It said it would continue to work with the developer to encourage them to put arrangements in place to minimise disruption to residents.
20. Mr X responded to the Council. He said the developer was in breach of the current construction management plan and he had not seen a revised one. He said deliveries were arriving out of permitted hours, contractors were parking on pavements, parking multiple vehicles on local streets and deliveries were being left outside the site for several hours. He accepted some aspects were out of the Council’s control but asked it to address the breach of the planning condition related to site management.
21. The developer sent the Council a revised construction site management plan and the Council suggested amendments and also invited comments from Mr X, which it fed back to the developer.
22. The developer submitted a revised site management plan to the Council for planning approval. The planning officer report noted concerns by residents and considered how the revised plan will address these. It considered the revised arrangement for contractor parking on site. It deemed the application acceptable and approved it in June 2020.
23. In July 2020, the Council visited the development site and was satisfied the developer was complying with the site management plan.
24. The Council responded to Mr X at stage 2 of its complaints procedure. It said since approving the revised plan, it had visited the site and was satisfied the parking arrangements and site set up were in line with the revised plan. It said highway verges and kerbs were the remit of another council acting as the highways authority, so it could not act on his concerns related to this. It told him it appreciated his concerns but did not intend to take further action.
25. Mr X remained dissatisfied and brought his complaint to us.

Analysis

26. When Mr X first contacted the Council, the Council acted appropriately by contacting the developer’s agent to discuss his concerns and to try and resolve the issues. It advised him it had no powers to act on issues related to the highway or private land. These were appropriate responses to Mr X’s concerns.
27. After Mr X submitted a formal complaint in early 2020 saying the issues were unresolved, the Council completed a site visit and liaised with the developer to try and resolve the issues again. The developer agreed to submit a revised site management plan to the Council. This was an appropriate action in light of the issues raised by Mr X.
28. The Council commented on a draft version of the plan and invited comments from Mr X which it fed back to the developer.
29. The planning officer report noted the concerns raised by local residents, considered the revised parking arrangements and how the developer planned to minimise ongoing disruption. The Council considered the application appropriately and the decision to approve the revised plan is not fault.
30. The Council then acted appropriately by visiting the site in July 2020 to ensure compliance with the revised site management plan.
31. Planning enforcement action is discretionary, and councils may decide to take informal action or not to act at all. The Council appropriately considered Mr X’s concerns and took action it considered appropriate in the circumstances. Although Mr X feels it should have done more in response to his concerns, there was no fault in how it considered the issues he raised and made its decisions, so I cannot question the decisions reached. The Council was not at fault.

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Final decision

32. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman