Summary: Mr C complained about the Council’s response to reports of breaches of planning control at a residential development site. Mr C says there has been a harmful impact on residents’ health, safety and amenity. We have found fault but consider the agreed action of an apology and review of procedure provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains on behalf of a residents group the Council has failed to investigate properly and take appropriate and timely action in response to their reports of breaches of planning control at a residential development site from May 2019 to April 2021.
2. Mr C says because of the Council’s fault, it has allowed the developer to operate in a way that has had a harmful impact on residents’ health, safety and amenity.

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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. 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 read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.

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What I found

Background and legislation

7. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.
8. Section171A of the Town and Country Planning Act 1990 (the Act) provides that a breach of planning control is defined as:

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

9. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
10. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.

Key events

11. The Council gave planning permission subject to conditions in 2018 for a large housing development including highways works. The permission included a condition requiring a Construction Traffic Management Plan (CTMP) to be provided to and approved by the Council before development started and for it to be adhered to throughout the construction phase of the development. This was to ensure the safe and efficient operation of the strategic road network. There was a separate condition that required a Construction Environmental Plan (CEMP) to be provided to and approved by the Council before development started and for it to be adhered to throughout the construction period. This condition also stated that there would be no construction access for the proposed development from a particular street (Street A) once the proposed access road (Road B) was open and available for public use. This condition was to avoid congestion in the area and protect amenity.
12. The Council wrote to the developer towards the end of 2018 to confirm the details provided of a Construction Environmental Management Plan (incorporating a Construction Traffic Management Plan) dated November 2018 were acceptable and discharged both these conditions.
13. Mr C contacted the Council in April 2019 about access by heavy goods vehicles to the site causing safety issues and damage to the road and properties. The Council sent a holding reply to Mr C which provided an explanation of possible actions and its approach to enforcement and expediency. The Council wrote to the developer in April about the alleged breach of planning control.
14. The Council met with residents and representatives of the developer on a monthly basis between May and September 2019. The purpose of these meetings is not set out in the minutes provided but appears to have been as a forum for residents to report or raise concerns about site management and to agree actions that would address issues as well as a way to keep residents informed of progress.
15. The Council wrote to the developer again in July. The developer contacted the Council to say it was taking steps to stop deliveries using the incorrect route and out of permitted hours and had held a meeting on site the previous week to outline a zero tolerance to such breaches.
16. The Council wrote to residents in early August to say it was aware some deliveries had been made out of the agreed hours and using the incorrect route. The developer had explained it was taking steps to stop such breaches and had a zero tolerance for them. It had also remined all contractors of the requirements and provided a customer service contact.
17. Mr C sent a completed enforcement form to the Council towards the end of November about ongoing issues seeking more formal action. Mr C referred to the monthly meetings with the developer and Council and noted there had been 293 recorded incidents over seven months of CEMP contraventions as well as several recorded near miss traffic accidents.
18. The Council sent a holding letter to Mr C and contacted the developer. The developer explained it had met with the company providing the road sweeper and arranged a second vehicle for the site entrance. The developer confirmed it would scrape the site roads, install CCTV at the entrance and fine contractors who breached delivery conditions.
19. The Council confirmed to Mr C at the end of November that discussions were being held between its Environmental Health service and Planning service about a dust management plan. Mr C contacted the Council in early January 2020 for an update about this. The Council responded to Mr C in early January to say it had met with the developer on site during December 2019 to discuss proposals to reduce dust and mud and most actions had now been implemented. The Council noted the dust shown in photographs provided from June was considered most likely to be from both site traffic off the site and exposed earth from newly built properties. It was accepted the road sweeper being used at that time was ineffective and may have added to the issue as well as the previous jet wash and bowser system not being effective as vehicles picked up mud at the entrance. This had now been replaced with a quarry style enclosed wheel washer. It was noted work was now moving away from the residential area and entrance from Street A would not be used for much longer.
20. Mr C replied in January to say he was unhappy the Council had met with the developer but not residents and disputed the dust was from site traffic and confirmed mud was still an issue.
21. The Council wrote to the developer towards the end of January about alleged breaches and referred to the number of incidents reported. The Council referred to its site meeting of December and noted the introduction of a new wheel wash facility was only suitable for HGVs and that it had witnessed smaller vehicles leaving the site in an unacceptable state. The Council also considered the use of the road sweeper alone was insufficient to ensure highway safety and sought details of additional steps to address the issue. The Council sought a timetable for the consultant employed by the developer to provide information about dust measures to add to the CEMP. The Council also issued a reminder about the planning condition about the number of houses allowed before the new Road B access was open and sought fortnightly updates of the build and occupation numbers to check compliance. The Council also confirmed it would be monitoring the site. The Council provided an update to Mr C.
22. The developer contacted the Council toward the end of January to confirm it would use a separate jet wash for smaller vehicles and would provide the dust management plan from its consultant in February. The developer provided the requested information about number of plots and committed to doing so fortnightly as requested.
23. The Council provided an update to Mr C at the end of January and offered a meeting during their next site visit in early February. Mr C was unable to make the scheduled date and explained he was unhappy the dust issue was only now being addressed rather than at the outset.
24. The Council wrote to the developer in mid-February about the breaches of planning control and to say it would be monitoring the site to consider if a formal notice was required. The developer responded to highlight the improvement in the number of reported breaches of delivery times following their use of fines and that the recent issues had been in part due to the staff member who normally manned the gate being on holiday. The developer had sought more route signage and received the dust management plan from their consultant which they would provide to the Council. The Council noted the mitigation measures should be sufficient but that it would continue to monitor the site.
25. Mr C contacted the Council in May about a breach of COVID guidance and for an update. The Council confirmed it had been making unannounced visits to the site and had noted some improvement in compliance with the CEMP. However, it was waiting guidance on restarting site visits following Government lockdown restrictions. The Council explained reports of breaches of COVID regulations were not matters for planning enforcement.
26. The Council wrote to the developer in early May to say there had already been reports of breaches of planning control since work had restarted and reminded it of the possibility of a formal notice. The developer contacted the Council towards the end of May to confirm the dust monitoring equipment was being installed at the site.
27. The new access route was opened in October. Mr C contacted the Council in early December to say HGVs were still using Street A and the new route was not available for public access as required by condition and there was inadequate route signage.
28. The Council wrote to Mr C in early December and explained it was trying to balance mitigating the impacts of the development on residents to a reasonable level with allowing the development to proceed to the point that the impact from use of Street A ended. The Council confirmed the Road B access was now available and so any further construction traffic use of Street A access would be a breach of planning control. The Council was to arrange a camera to monitor. The Council also confirmed a hedgerow removal was allowed as part of the planning approval for the access and did not require a separate consent. There was also an explanation about the interpretation of a particular condition. The Council set out its position that the main function of the condition was to remove construction traffic from Street A as soon as practicable. It acknowledged the condition also required the access should be available for public use. The developers maintained it was available for public use although as it did not yet provide access to Phase 1 of the development it would not be so used. The developers had confirmed that part of the current access road was a temporary road for construction traffic to Phase 1 which would be removed as Phase 2 was built. The permanent roadway link between the phases was only intended to be opened close to completion of Phase 2. The Council considered the following:

• if the road was open to the public at this stage there was potential for use as a rat-run
• only residential traffic from Phase 1 of the development would have access to Street A until the development was almost complete
• once Phase 1 was complete there would be no traffic using Street A from an active construction site and so there should be no depositing of mud on the highway.

29. Mr C made a formal complaint to the Council in mid-December. The Council acknowledged Mr C’s complaint and confirmed it was continuing to deal with the enforcement investigation and was in contact with the developers about the issues raised by residents. The Council confirmed it intended to place a camera on the Street A approach to monitor compliance with the relevant condition. The Council had also discussed the matter with the developer.
30. Mr C chased the Council for a reply to his complaint in mid-January and early February. Mr C also stated agreed actions from a telephone meeting in early January had not been completed. The Council responded in early February to say it had not provided a full response to his complaint as the issues were still being addressed and the matter was being treated as an enforcement matter. The Council has confirmed to the Ombudsman that it did not put Mr C’s December 2020 complaint through its complaint process as the matter was an ongoing enforcement case.

My consideration

31. I should explain that councils have no duty to monitor development. They are dependent on members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate. We cannot investigate the actions of the developer only the response of the Council to Mr C’s reports. 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.
32. The Council was aware of potential breaches of planning control from April 2019 and wrote to the developer at that time. The Council met with the developer and residents and corresponded further with the developer in July. The Council confirmed the action taken to residents in August.
33. I see no fault in the Council’s approach here. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost effective way of achieving a satisfactory outcome.
34. Residents continued to log breaches of planning control at the site which were provided to the Council at monthly meetings. This culminated in Mr C seeking more formal action In November after residents had logged a significant number of breaches of planning control. I am satisfied based on the evidence provided, that the Council responded to Mr C’s November report and subsequent reports and took appropriate action which included visiting the site and contacting the developer. The Council made clear it was considering the possibility of more formal action if matters were not addressed. Mr C may have preferred the Council to take a different approach but this is not in itself evidence of fault.
35. However, it is not clear how the Council responded to the reported breaches being made by residents at each of the monthly meetings before November. It may have been the case that the Council was broadly satisfied with the cooperation being offered by the developer but I would expect to see a record of the Council’s consideration of the issues being raised with a record of any informal action including any decision not to take further action. I further consider if the Council had done so and communicated the outcome(s) to Mr C during this period it would have provided a clearer understanding of the Council’s position and managed expectations. On balance, I consider taken together the failure to do so constitutes fault.
36. I am also concerned the Council did not progress Mr C’s formal complaint through its complaint procedure. Whilst the Council did reply to Mr C’s correspondence, he was entitled to receive a response to the concerns he had raised about how the Council had responded to his reports. This is separable from responding to the reports themselves. I consider the failure to do so constitutes fault.

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Agreed action

37. The Council will complete the following action to provide a suitable remedy to Mr C:
1. write to Mr C to apologise for the lack of clarity about how reports provided to the Council at the monthly meetings would be treated and its failure to put his complaint through its complaint procedure within one month of my final decision; and
2. review its procedure and guidance to relevant staff to ensure that complaints receive a timely response under the Council’s complaint procedure within three months of my final decision.

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Final decision

38. I have completed my investigation as I have found fault but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman