Summary: Mr X complained the Council failed to ensure the developer complied with planning conditions in relation to demolition of properties at the end of his street. This led to a large amounts of dirt, noise and disruption on his street from large vehicles accessing the site. There is no evidence of fault in the way the Council responded to Mr X’s report of breach of planning control at a site near his home.

The complaint

1. The complainant, whom I shall refer to as Mr X complained the Council failed to ensure the developer complied with pre-commencement planning conditions in relation to demolition of properties at the end of his street. This led to a large amounts of dirt, noise and disruption on his street from large vehicles accessing the site. There was also damage to property and vehicles; and to the roads and drains.
2. Mr X complained on behalf of himself and his neighbours.

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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. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X;
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

7. The Council’s planning committee approved planning permission, subject to conditions, for the demolition of existing properties and the erection of a new building close to Mr X’s home. This approval was also subject to a legal agreement between the developer and the Council to mitigate the impacts of the proposed development. The agreement was concluded and planning permission issued in late 2020.
8. The conditions attached to the planning permission included actions to be taken prior to the commencement of development. These required the developer to submit a demolition / construction methodology to the Council for approval covering issues such as:
• Demolition and construction methods and techniques and days/ hours of work and deliveries of construction materials;
• Means of minimising noise and vibration;
• Means of minimising dust and similar emissions; and
• Means for the identification, removal, and safe disposal of asbestos.
9. The conditions also required details of retaining earthworks and walls needed to support the public footway and highway along the site boundary.
10. Mr X says that when works began on the site in the summer of 2020 his brother raised concerns with a local councillor. Mr X‘s brother also subsequently contacted the developers in September 2020 in relation to the arrangements for the demolition which were restricting residents access. The developer advised Mr X’s brother that their contractors would be mindful of the need to minimise disruption to their neighbours.
11. In late 2021/ early 2022 Mr X contacted the contractor regarding the impact of activities on the site on the local residents. He complained that vehicles entering and leaving the site made a mess and left the street filthy and caked in mud, and there was a lack of street cleaning. A large amount of mud and dirt had run into the drains, and the drains and kerbs were damaged by lorries continually running over them to enter and exit the site.
12. Mr X says the contractor acknowledged the street cleaning was inadequate and undertook to improve the cleaning. The contractor also confirmed it would carry out any remedial works to the drains and pavements once work on the site was completed.
13. Mr X subsequently checked the Construction Management Plan (CMP) for the development and noted that wheel cleaning should have taken place from the outset. He also noted that analysis within the CMP was based on vehicles being no bigger than 3.5 tonnes yet the HGVs visiting the site were larger and heavier than 3.5 tonnes and could not avoid driving over the pavements when accessing/ exiting the street. Mr X also raised concerns about contractors parking on the street. He says the contractor assured him this would not happen going forward.
14. When the contractor stopped responding to Mr X’s correspondence, Mr X contacted a local councillor for assistance. He asked that the Council do something to curb the developer and their contractor’s poor conduct. This was having a detrimental effect on residents quiet enjoyment of their homes and the cleanliness of their properties and the street.
15. The councillor passed Mr X’s concerns to the building control department, who forwarded the complaint to the planning department. A planning enforcement officer asked Mr X to provided photographs of the vehicles entering the site and the condition of the street as a result of the construction works. The officer then shared the photographs with the developer and with the highways department.
16. The planning enforcement officer visited the site in early March 2022 and noted that works had commenced. They then contacted the developer asking them to cease work at the site.
17. The officer then wrote to Mr X confirming the pre-commencement conditions had not been discharged the developers had agreed not to carry out further works at the site until the discharge applications had been determined. The officer confirmed that once the applications were determined, if the developer breached the approved CMP they could investigate.
18. Mr X asked for clarification regarding pre-commencement conditions and their discharge and whether the Council considered the developer was in breach of planning conditions and the CMP. Mr X noted a copy of the approved CMP was on the Council’s website and he had provided evidence the developers had not complied with it.
19. The officer confirmed pre-commencement conditions are put in place for further details to be submitted to the Council before works can begin on site. They also confirmed the developers had submitted applications to discharge conditions and the CMP was under consideration but had not been approved. The developers would not continue with any works until the details including the CMP were approved by the Council and the conditions discharged. Once the conditions were discharged the Council would be able to ensure the developers worked in line with the approved CMP. The officer confirmed the Council could not currently enforce the CMP as the document had not been approved by the Council and the related condition had not been discharged.
20. Mr X was not satisfied by the officer’s response and made a formal complaint to the Council. Mr X was unhappy that having contacted a councillor for assistance he was then passed around several departments within the Council. He complained the Council had wrongly told him that planning conditions had not been formally approved even though permission was granted in 2020. Mr X also disputed that the Council was unaware of works at the site until after the existing building had been demolished. The developer had given notice of their intention to carry out demolition works to building control in the summer of 2020 and the Council had served a counter notice. Building control is a Council service and Mr X therefore considered the Council was aware of work commencing.
21. Mr X considered the developer was in clear breach of the CMP and wanted the Council to exercise its enforcement powers to protect residents’ amenities and enjoyment of their homes.
22. The Council responded to Mr X’s complaint and reiterated that when Mr X raised concerns it wrote to the developer and works at the site stopped. The developer had assured the Council that works would not restart until the CMP was approved and the Council asked Mr X to let it know if there was any new activity.
23. In addition the Council confirmed it was unable to hold the developer or its contractor to any informal undertakings or agreements it had given to residents. In relation to the debris on and damage to the highway the Council confirmed the highways team had inspected the gullies but would return again to ensure they were clean.
24. Mr X did not consider the Council’s response adequately addressed his concerns and asked for his complaint to be considered further. The Council disputed being selective in its interpretation of Mr X’s concerns and explained the principal way a council mitigates the impact of disturbance from construction on local residents is through planning conditions. It was therefore reasonable for the initial complaint response to focus on this.
25. The Council confirmed the planning enforcement officer was unaware of the demolition notice served on a different part of the Council. It states the officer should have crossed checked with building control records. The Council was nevertheless satisfied the officer had acted promptly in contacting the landowner to secure the cessation of works on site.
26. Works on the site had started before all the planning conditions had been discharged. The Council confirmed this was a breach of planning control on which the Council could and had taken action. However, it could not take action in relation to the developer’s failure to correspond with Mr X or with their appointed contractor’s behaviour.
27. The Council considered its actions addressed the breach of planning control and were in line with its enforcement policy. It did not accept it had failed to appropriately protect residents’ amenity. The Council also confirmed it would ensure that damage to the highway attributable to the site would be made good at the developer’s expense. It noted this would normally happen at the end of the development process.
28. As Mr X remains dissatisfied he has asked the Ombudsman to investigate his complaint. He says HGV vehicles constantly traversing his street to access the site caused noise and disruption to the community. There was filth and dirt from the demolition spoil on the road which was carried into their homes. Some residents’ cars and properties had been damaged as had the roads, pavements, and drains. The drains were also blocked by dirt due to inadequate road cleaning.

Analysis

29. There is no dispute the works at the site were a breach of planning control. The developer should not have started works before the pre-commencement conditions were discharged. The developer only applied to discharge the pre commencement conditions months after works had started, and the Council has not yet discharged these conditions or approved a CMP.
30. Councils cannot police development that is carried out and breaches of planning control will often only come to light when neighbours report it. Although Mr X says work at the site began in the summer of 2020, he did not complain to the Council, via a councillor, until February 2022. I recognise that prior to that he had contacted the developers and contractors directly to try and resolve his concerns about the impact of the construction works on his street. But he had not raised his concerns about construction traffic with the Council.
31. Within three weeks of Mr X contacting the councillor in February 2022, the Council had visited the site identified the breach of planning control and obtained agreement from the developer that works would cease. This is an appropriate and timely response.
32. The pre commencement conditions have still not been discharged and the Council has confirmed no further works have been carried out at the site.
33. Mr X asserts the Council should have been aware that works had started in the summer of 2020 as the developer served notice of intended demolition works. It is unclear whether building control shared this information with the planning department at that time.
34. We would expect there to be communication between Council departments and it is possible this would have led to further correspondence between the planning department and the developer. But I am unable to speculate on how/ whether the situation would have been different. I note that at this stage the planning application had been considered by the planning committee, but the Council had not yet issued planning permission for the works. Planning permission was only issued in late 2020 following which the developer applied to discharge conditions. The developer would have been aware the works carried out in the summer of 2020 were unauthorised.
35. Prior to the cessation of works on the site Mr X and his neighbours experienced noise and disruption from vehicles entering and leaving the site and the street was left dirty and damaged. Had Mr X or his neighbours raised his concerns directly with the Council sooner, I consider it more likely than not that the issue would have been resolved sooner.

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Final decision

36. There is no evidence of fault in the way the Council responded to Mr X’s report of breach of planning control at a site near his home.

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Investigator's decision on behalf of the Ombudsman