Summary: X complained about the Council’s failure to take enforcement action against a developer who was in breach of a planning condition meant to protect residents from the impact of construction work on land behind their home. X said the failure to act affected their enjoyment of their home. We found fault in the way the Council has acted. The Council agreed to our recommendations to remedy the injustice caused by the fault and which may also help ensure it avoids repeating the same fault again in future.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to enforce planning conditions to control hours of work, noise and dust from construction work on land behind their home.
3. X said the failure to enforce affected their enjoyment of their home.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, 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)

Back to top

How I considered this complaint

6. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
7. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

Back to top

What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
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. Councils often 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.
13. 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.
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 using other, non-planning powers such as those found in the Control of Pollution Act 1974 and the Environmental Protection Act 1990.
15. 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.

Planning enforcement powers

16. Councils have a range of options for formal planning enforcement action available to them, including:
• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach;
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it;
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public;
• Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development;
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
17. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

What happened

18. The Council approved a planning application for development on land behind X’s home. The planning approval included a condition to control construction works. Under this condition, before development began, the developer was required to submit a construction and environmental method statement, to control (amongst other things) hours of work and dust generated by building works. The method statement had to be approved in writing by the Council before work began.
19. Work began before a construction management plan was submitted and approved by the Council. The Council received complaints from residents about breach of the condition relating to dust and hours of work controls.
20. The Council provided me with details from its enforcement files, which show:
• complaints over several months about hours of work and dust problems;
• a planning enforcement officer warned the developer if problems continued, the Council would take enforcement action;
• problems continued and the Council began work to serve a Planning Contravention Notice, but this did not happen because of staff absence issues. The method statement was approved more than a year after work began on the site;
• complaints about breach of the construction works condition continued, and three months later the Council contacted the developer to advise them of their obligations;
• the Council was undertaking a service review, which aimed to bolster support for its planning enforcement service. The review is being carried out by a body set up by the Council, which reports to members, and it is known as the ‘Alliance – Our Future’ project.
21. In relation to X’s home, a senior officer told me that after receiving complaints about noise and dust from X, it agreed to allow the developer to put up a close boarded fence on the rear boundary. The senior officer explained that the fence was not necessary for planning purposes, and so was not required by planning controls.
22. The senior officer said that they had met with the developer recently and asked about the fence and had been told that it was now complete, but they had not confirmed this.
23. In response to an earlier draft of this decision, X said:
• the fence was not complete, and they would like a meeting with the Council to discuss this; and
• problems with out of hours deliveries to the site continue.

My findings

24. 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.
25. The evidence shows delay in action after the Council received complaints about a breach of planning control. The development was allowed to continue without an approved construction method statement. This is fault.
26. I acknowledge the Council faced difficulties caused by staff absence, but planning authorities should only impose conditions if they are necessary for planning purposes, including avoiding harm to public amenity. It is important for public confidence in the planning system that authorities act without undue delay. I will make recommendations that may lead to service improvements.
27. The delay and failure to act will have caused disappointment and frustration to X, for which the Council should apologise.
28. In relation to X’s comments on an earlier draft of this decision:
• I have not recommended the Council require the fence is completed because I have seen no evidence to show a fence was required for planning reasons;
• I note X’s concerns about ongoing problems on the site. If allegations are reported to planning enforcement officers, they should be investigated. The service review the Council is undertaking may improve the effectiveness of its enforcement function.

Back to top

Agreed action

29. I found fault which caused an injustice to X and might happen again. To remedy the injustice caused by the fault and avoid recurrence, the Council has agreed to the following remedy:
1. The Council will apologise to X for the disappointment and frustration it has caused. This will happen within one month from the date of our final decision.
2. The Council’s service review should include what has happened in this case and what might be done to avoid recurrence of the fault I have found. This should happen within three months from the date of our final decision.
3. The findings of this review that relate to this complaint will be reported in writing to the Council’s Alliance – Our Future project. This will happen within one month from the completion of the review.
30. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

31. I found fault causing an injustice that may happen again. I completed my investigation because the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman