Summary: Mr X complained about the Council completing night-time works near his property into the early hours of the morning without warning. We found fault with the Council failing to notify Mr X of the works and for the clarity of a planning condition. We did not find fault with the Council completing the works at night. The failure to consult and clarity of the planning condition would not have changed the decision to complete night-time works so has not presented a significant personal injustice to Mr X.

The complaint

1. Mr X complained about the Council completing night-time works near his property into the early hours of the morning without warning. Mr X says the Council told him it would not complete works at night-time.
2. Mr X says the noise from the development has caused him a lack of sleep for six weeks.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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 all the information Mr X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. I have also considered the original planning application, the planning officer’s report and decision notice.
8. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Planning law and guidance

9. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Planning 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.
13. Part 9 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) outlines that highway authorities have authority to carry out maintenance or improvement of a road under permitted development. This means the Council does not need planning approval. The Council must complete any works within the boundary of a road or on the land outside but directly adjoining an existing highway related to the incidental maintenance or improvement of the highway.

What happened

14. In 2018, the Council put in a planning application for improvements to a pre-existing highway and reconfiguration of a public green space.
15. The planning application submitted by the Council detailed a Noise and Vibration assessment which noted that night-time works may need to occur. The assessments stated the contractor would need to decide on any suitable mitigation measures against noise and vibrations, but contractors should follow Best Practicable Means.
16. The Council approved the planning application subject to conditions. One condition was that construction or remediation work comprising of using plant, machinery or equipment should only take place between 08:00 to 18:00 Monday to Friday and 09:00 to 14:00 on Saturdays.
17. In November 2021, the Council granted a Temporary Traffic Regulation Order for completion of works on Mr X’s road in January 2022. The Council started these works at night in January 2022.
18. Mr X complained to the Council about the noise caused by the contractors. Mr X said the noise was excessive and he had received no warning about the night-time works. Mr X also complained the Council did not offer alternative accommodation.
19. The Council responded to apologise for the inconvenience caused. The Council said it intended the planning condition to limit working times within the public green space and not on the road network. The Council said given it was now connecting the pre-existing road network to the new development it had made the decision to complete these work during the night. The Council said it decided this to reduce impact on the road and in the interest of health and safety. The Council said it would tell the contractors about the importance of following Best Practicable Means and attend the site to assess the situation.
20. A Council Officer attended the site and found the contractors were completing works on two parts of the road network. The Council Officer found the contractors were following Best Practicable Means and while the noise was loud did not consider action could be taken to reduce the noise. Overall the Council Officer decided the works would caused some disturbance to residents but the contractors were following Best Practicable Means.
21. The works ended on the stretch of road near Mr X’s house in January 2022 but continued on nearby roads. The contractors finished the rest of the night-time works in March 2022.
22. Mr X complained to the Council again in March 2022 about the disturbance caused by the night-time works and the failure of the Council to tell him about the works.
23. The Council issued Mr X with a Stage 1 complaint response in May 2022. The Council said:
• It was unclear if Mr X had been notified about the night-time works but said the contractor should have done this. The Council apologised for its failure to tell Mr X of the works.
• It does not offer alternative accommodation to residents due to noise or disruption when carrying out its highway duties.
• It attended the site and found the contractors to be following Best Practicable Means so nothing could be done to reduce the noise.
24. Mr X complained to the Council in August 2022 seeking a Stage 2 complaint response. The Council responded to reiterate its findings at Stage 1. The Council said the apology issued was sufficient to address the circumstances in this complaint.

Analysis

25. The planning condition about hours of work was specific to confirm that work, which would likely create excess noise, should not be completed outside specified hours. These hours of work effectively bar the use of machinery or loud equipment at night-time.
26. The Council has advised it intended this planning condition to limit working times within the public green space itself where it was constructing the new road system. While this may have been the intention of the Council’s planning condition, this is not the wording of the planning condition.
27. The planning condition does not specify what area this restriction on hours of work applies. As such, it should be read as applying to the entire area covered by the boundary map presented as part of the planning application. This area includes certain pre-existing roads surrounding the public green space, including those that Mr X complained about.
28. The Council worded the planning condition with a lack of clarity about its purpose. Or, the Council failed to have consideration of the future implication of this planning condition when it came to joining the new road network into the pre-existing road network. In either event, this is fault by the Council.
29. The Council has also admitted its fault through failing to provide Mr X with warning of the night-time works.
30. However, Permitted Development rights give the Council scope to complete works on a pre-existing highway without the need for planning permission. This means the works completed by the Council on the pre-existing road network were not subject to the planning conditions in the planning application.
31. The Council must give consideration about whether it should complete night-time works on its road network and consider relevant factors such as potential disturbance on residents. The Council considered the option of day-time works in this matter but decided against this. The Council made this decision because of the excessive impact this would have on traffic flow, the health and safety risks for pedestrians and the impact this would have on public services such as the hospital, police and fire stations. The Council’s decision that completing the works on the pre-existing road network at night would have a lesser impact is a decision the Council was entitled to make.
32. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define the law. In this instance, the Council has considered relevant factors and made a suitable decision. I cannot question the merits of this decision.
33. In response to Mr X’s complaint, the Council also arranged for a Council Officer to attend the site to assess the contractor’s work. The Council Officer decided the contractors were operating with Best Practicable Means and did not consider the contractors should take any further steps to mitigate the noise. The Council acted appropriately to verify the contractors were operating with Best Practicable Means and were within their rights to decide no further mitigation measures were needed. I do not find fault with the Council’s actions in response to Mr X’s complaint.
34. While the Council was at fault for the issues detailed in paragraphs 28 and 29, this did not present a significant personal injustice to Mr X. This is because the Council would have proceeded with these night-time works regardless of the fault identified. The Council decided to complete the works on the pre-existing road networks without fault, and it checked the contractors were completing the works with Best Practicable Means.
35. The Council has already apologised for failing to tell Mr X of the forthcoming works. No further action is needed from the Council to address this matter.

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Final decision

36. There was fault by the Council. This did not lead to a significant injustice to Mr X. As such, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman