Summary: Mr X complained about the Council’s failure to take planning enforcement action resulting in loss of enjoyment of his garden and impacting his late wife’s health. We found the Council at fault because it did not have adequate records to show it properly investigated Mr X’s complaint. We recommended it apologise to Mr X, pay him £150 for distress and take action both to address Mr X’s concerns and to prevent recurrence.

The complaint

1. Mr X complains the Council failed to ensure a developer monitored their site for dust and took appropriate remedial action. The excess dust meant he could not enjoy his garden and he believes this contributed to his late wife’s decline from lung cancer. Mr X is also unhappy with the Council’s complaint handling.

Back to top

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 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)
4. 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)

Back to top

How I considered this complaint

5. I spoke to Mr X and I reviewed documents provided by Mr X and the Council.
6. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Planning enforcement

7. Government guidance, “Ensuring effective enforcement”, says councils have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations, which include the National Planning Policy Framework. The Government says:
8. “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. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.”

Council enforcement policy

9. The Council publishes a development management enforcement plan on its website.
10. The purpose of the Council’s Planning Enforcement service is to investigate alleged breaches of planning control and consider appropriate remedial action.
11. It will not start an investigation unless it has reasonable grounds to suspect a breach of planning control has taken, or is taking, place.
12. It will assess all legitimate enquiries and investigate where appropriate.
13. It will keep update enquirers during key stages of an investigation and of eventual outcomes.
14. Upon an enquiry, it will aim to start the investigation or contact the person responsible within 20 working days.
15. If there is a breach of planning control, it will consider what action to take.

Principles of good administrative practice

16. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes:
• Stating the criteria for decision making and giving reasons for decisions
• Keeping proper and appropriate records
• Explaining clearly the rationale for decisions and recording them

What happened

17. The Secretary of State granted outline planning permission for a major development. It imposed a condition that works could not begin until it had approved a construction management statement. This was to include measures to control the emission of dust and dirt during construction, in the interests of residential amenity.
18. In early 2022 the Council approved a construction management statement (“CMS”) and discharged the condition.
19. The statement said the developer would:
• Fit all power tools or cutting equipment with either water suppression or dust collection devices.
• Use vacuum collection systems where possible.
• Cover waste skips, water suppression, segregation and exclusion using impermeable barriers.
• Prevent equipment running dry while engaged in operation.
• Finish haul and access road with a tarmac running surface and spray to minimise dust when needed.
• Regularly clean roads.
• Monitor dust protection at regular intervals during the day.
• Resolve complaints and take any necessary enforcement or corrective action.
• Store materials in designated areas and keep the material in a damp condition by water spraying, if or when needed.
• Dispose of all waste in skips or recycle; no waste to be burnt on site.
• Undertake periodic dust monitoring along fixed points on the site boundary, recording the results within a register. Taking any required remedial action to reduce levels, checking and verifying the corrective action has been successful in reducing the dust levels.
20. In February 2022 Mr X contacted the Council querying what action it could take if the developer was found not to have managed dust emissions in line with the CMS. The Council said it had not received any complaints to consider action.
21. On 18 March 2022 Mr X raised an enforcement complaint. He told the Council he had spoken to the site manager who advised they had not been monitoring the site for dust or keeping a register and they were not required to do so.
22. Mr X has provided copies of emails to show he chased the Council for updates between March and June but received no substantive response.
23. In June Mr X complained to the Ombudsman and we asked that he complete the Council’s complaints process before returning to us if he remained unhappy.
24. On 12 July Mr X complained to the Council about its failure to respond to his planning enforcement complaint.
25. The Council says its officer updated Mr X on 20 July. They said they had visited the site on 31 March and again on 20 and 27 June. They found the developer was adhering to dust management measures.
26. On 22 July the Council responded to Mr X’s complaint, apologising for its delay. It noted its officer had since updated Mr X on their investigation. It apologised for the delay in doing so. The Council explained this was due to an increase in workload but it was now recruiting more officers. It would also update its enforcement plan to ensure complainants received more timely updates.
27. Mr X asked the Council whether it should have monitored the site for compliance or only acted upon a complaint. He also confirmed the apparent lack of register and/or remedial action was the key issue.
28. The Council explained its service is reactionary and so it investigated upon his complaint but found no issues. It said the CMS set out specific measures to be taken. But it also set out possible measures as corrective action in response to a complaint. This included the dust monitoring. This was a possible action; not a commitment or requirement.
29. Mr X escalated his complaint.
30. The Council responded, reiterating previous points. It said there were no other complaints raised for it to investigate sooner. It took the view the CMS was ambiguous; with some measures repeating information elsewhere or suggesting additional interventions. However, it considered the focus of the measures was to suppress dust and its enforcement investigation found dust suppression measures in place. It was not possible to proactively monitor developments. And Mr X had not evidenced there were any dust issues on site.
31. Mr X escalated his complaint further.
32. The Council reiterated previous points. It added that planning legislation gave it a statutory duty to investigate alleged breaches of planning control. This duty was engaged upon a reported breach. There was no obligation for the Council to proactively monitor conditions.
33. Mr X then returned to the Ombudsman.
34. The Ombudsman asked the Council for details of its enforcement investigation, including copies of any associated enforcement reports or site visit notes.
35. The Council provided a brief log of actions taken. It explained it only prepares a report for those cases where it is taking formal enforcement action.
36. The log reports on 27 June the Council concluded all dust management requirements were in place following site visits and a discussion with the site manager.

Findings

37. The Council will investigate upon a reported breach of planning control. It does not otherwise monitor sites to ensure compliance with planning conditions and it has no obligation to do so under law or policy. Mr X did not raise any enforcement complaint before March 2022 and the Council has said the only other enquirer withdrew their complaint. I therefore find no fault.
38. I acknowledge Mr X has suffered distress and uncertainty as to whether the Council should have acted sooner and the impact of any inaction on his wife’s health. However, the Council did not have to act unless or until it received a complaint for investigation. As I have found no fault here, I cannot consider a remedy.
39. The CMS says the site manager will monitor dust levels, keep a register of monitoring and take action to reduce dust levels if needed. It does not say this is dependent on or only in response to a complaint. I acknowledge the Council suggested monitoring was optional and/or the CMS was ambiguous. However, I am satisfied the text in the CMS is clear. I do not consider this is a question of interpretation.
40. On review of the Council’s records I am satisfied the Council began investigating the enforcement complaint within 20 days in line with its policy. It finished its investigation on 27 June at which point it should have updated Mr X in line with its policy. I consider it also should have responded to his chasers, if only to say it would contact him at any key stage. I find the Council at fault because it did not respond to Mr X or update him in a timely manner. Mr X spent time chasing the Council. This is injustice. I note the Council is increasing its workforce to prevent recurrence.
41. The Council has not provided adequate evidence to support its conclusion the developer met all dust management measures. I have not seen anything to suggest the Council checked any records regarding dust monitoring. And the Council’s complaint responses suggest it did not check this as it did not consider it a requirement. I find the Council at fault because it does not have adequate records to show it properly investigated Mr X’s enforcement complaint. Mr X continues to suffer uncertainty as to whether the developer was and is acting to reduce dust levels as needed. This is injustice.
42. I note the Council’s point that dust suppression measures are in place in any event and so no harm arose. However, the Council has not provided evidence to support this conclusion. For instance, there is no evidence to show how successful these suppression measures are/were or whether further measures are/were necessary.
43. On review of the Council’s complaint handling I find no undue delay in its responses. I consider the language and tone of the Council’s stage 2 response was inappropriate in questioning whether Mr X had cause to complain. However, this does not meet our threshold for a finding of fault. The Council may nonetheless wish to consider any learning from this.

Back to top

Agreed action

44. To remedy the injustice above the Council should take the following actions:
45. Within one month:
• Provide Mr X with an apology for the faults identified above;
• Pay Mr X £150 for distress and uncertainty;
• Check whether the developer is meeting the requirement to monitor dust levels, keep a register and take action if needed. Then provide Mr X with a written update of the Council’s findings.
46. Within three months
• Revisit its enforcement investigation, gather evidence as needed to support its conclusion the developer is meeting all dust management measures and keep a record of this.
• Take action to ensure it keeps records to support its decision making on enforcement complaints in future.
47. The Council should provide us with evidence it has complied with the above actions.
48. The Council has accepted my recommendations.

Back to top

Final decision

49. I find the Council at fault because it does not have adequate records to show it properly investigated Mr X’s complaint. The Council has accepted my recommendations and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman