Summary: Mr X complained the Council failed to protect him and other residents from noise and dust caused by breaches of planning condition. We ended our investigation because it was unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.

The complaint

1. Mr X complained the Council failed to protect him and other residents when there were breaches of planning conditions on a large building site near his home.
2. Mr X said the Council failed to:
• ensure the builders complied with British Standards relating to noise and vibration control on construction sites;
• react to his allegations of breaches of planning conditions; and
• pass his concerns to environmental health officers for investigation.

Back to top

The Ombudsman’s role and powers

3. 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, or
• any fault has not caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

Back to top

How I considered this complaint

4. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans, comments on the application from an environmental health officer, and the planning case officer’s report. These documents can be found on the Council’s planning portal website.
5. Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.

Back to top

What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Councils may impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by:
• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and
• traffic from construction vehicles.
11. While construction management conditions may help lessen the impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

Environmental health law and functions

13. Councils have statutory power to enforce environmental protection measures in their areas. They can control nuisance caused by pollution, from things like noise, dust, smoke and odour by issuing abatement notices.
14. Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served to abate the nuisance.
15. Environmental health officers may also provide advice to other departments, including advice on planning applications on what the impact a development or land use might have on the environment. They may recommend conditions to protect public amenity.

Background

16. Mr X lives near a site that was given permission for a major development project several years ago. Before a decision was made, the planning department consulted environmental health colleagues, and an environmental health officer (EHO) recommended conditions related to avoiding nuisance from construction works from noise and dust.
17. The Council approved the application subject to planning conditions, including those recommended by the EHO.
18. Mr X said that after construction work began, he and other residents were affected by noise and dust from construction work and vehicles. Mr X said he complained to the Council, but the planning officers took no action to enforce against breaches of planning control, nor did they refer his concerns to their colleagues in environmental health.
19. Mr X also said that the planning conditions the Council imposed were inadequate, as they did not reference or ensure compliance with British Standards to control noise and dust on construction sites.
20. The Council responded to Mr X’s concerns through its corporate complaint process, but said it had no record of allegations of breaches of condition made to its planning enforcement officers.
21. I asked Mr X to provide evidence to show he had complained about breaches of planning controls at the time he experienced disturbance and nuisance from construction works. Mr X did not send me evidence to consider.

My findings

22. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
23. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
24. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
25. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
26. I should not investigate this complaint further, and my reasons are as follows:
• Planning authorities can incorporate British Standards into their conditions, but they are not obliged to, and what they include is a matter for their discretion.
• Before a decision was made, the Council’s planners consulted EHOs, who recommended conditions to control noise and dust. Further investigation is unlikely to find evidence of fault in the way the decision was made.
• For allegations of breach of construction management controls, planning enforcement officers generally need evidence that the breach is persistent and ongoing. I can see Mr X has complained about noise and dust through the complaints process, but I have seen no evidence to show he complained to the planning department at the time he experienced the problems. If I had this evidence, I could investigate the adequacy of the Council’s response or its failure to respond. Mr X has not provided the evidence I need, so I have ended my investigation.

Back to top

Final decision

27. I ended my investigation because it was unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.

Back to top

Investigator's decision on behalf of the Ombudsman