Summary: We will not investigate this complaint about the Council’s actions on a development opposite the complainant’s home. We have seen no evidence of fault in how the Council has decided there is no breach of planning control.

The complaint

1. The complainant, I shall call Miss X, says the Council is failing to enforce the Construction Environmental Management Plan (CEMP) for a development site opposite her home.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
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)

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How I considered this complaint

4. I considered information provided by Miss X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
7. 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 2021, paragraph 59)
8. Miss X says the Council is not ensuring the developer keeps to the CEMP as:
• there is little to no mitigation of dust
• the developer is using a small site entrance instead of the main entrance
• the developer removes fence panels to create extra entrances
• contractors park their cars across resident’s driveways and block the street with deliveries; and
• loud music and swearing comes from the site
9. The Council’s records show it visited the site several times following Miss X’s reports of breaches of planning control. The Officer’s notes show:
• The water bowser was in use to damp down dust. However, the dry weather has aggravated the issue.
• The site manager told the Officer he had offered to pay for cleaning the windows of nearby properties, given his contact email and telephone number to residents, and is monitoring noise regularly.
10. I accept Miss X is unhappy at living next to, what is at present, a building site. However, having inspected the site multiple times, the Council is satisfied there are no breaches of planning control. The Council has no control over whether construction workers park their cars. If residents are blocked in, they can ask the police to intervene.

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Final decision

11. We will not investigate Miss X’s complaint. By visiting the site, the Council has carried out its statutory duty. It is entitled to reply on the opinion of its Officers who are satisfied there is no breach of planning control.

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Investigator's decision on behalf of the Ombudsman