Summary: X complained the Council failed to take effective action to protect them from noise and dust caused by construction work. We did not investigate this complaint further because it was unlikely to result in a finding of fault, a remedy for X or any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to properly investigate allegations of breaches of planning control properly and took too long to respond to X’s concerns.
3. X said the Council did not provide them with adequate information to justify its decision not to take formal enforcement action.
4. X said the development works created noise and dust which affected X’s health, particularly during a long period of dry weather.

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The Ombudsman’s role and powers

5. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any alleged fault has not caused injustice to the person who complained that we can remedy, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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What I have and have not investigated

6. Many of the issues raised in this complaint were considered in an earlier complaint we investigated. The details of our decision on that complaint can be found here. I do not intend to re-investigate the issues covered by that complaint during this investigation.
7. One of the reasons we ended that investigation was because we found it was unlikely to result in a finding of fault in the way breaches of planning control were investigated.
8. The focus of this investigation is on whether there is evidence of unreasonable delay, particularly during the early months of the planning enforcement investigation.

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How I considered this complaint

9. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning enforcement files, including correspondence with X. The Council also provided a chronology of the main events and actions relating to its planning enforcement investigation.
10. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning enforcement powers

11. 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.
12. 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.
13. The courts have made it clear that planning authority decisions should not be subjected to hypercritical scrutiny, and do not merit challenge unless the overall effect of a fault in process is to significantly mislead the decision maker on the key, material issues.

What happened

14. In the autumn of 2022, X complained to the Council about noise and dust problems caused by building work on a development site in the area X lives in. X does not live very close to the site, but says their health is affected by dust in the atmosphere.
15. A month later, a planning enforcement officer provided a detailed response to X. The officer explained that there had been a meeting between the Council, the developer and residents to find acceptable solutions. The officer also said that referrals had also been made to environmental health and highways officers.
16. Several weeks later, a manager from environmental health wrote to X to explain what had been happening. The Council had visited the site and considered noise and vibration data provided by the developer.
17. At the start of 2023 a new planning enforcement officer took over the case. The evidence shows that the Council visited the site, raised issues of concern with the developer, provided information to X, considered improvements and monitored dust and noise data. The Council decided no formal action was necessary, as the developer had been compliant and delivered meaningful improvements.
18. In response to an earlier draft of this decision, X sent long detailed comments for me to consider. In general terms, X disagreed with the judgements the Council made. In X’s view, there was compelling evidence to justify formal enforcement action, and the Council was legally wrong to use its discretion not to take a more proactive approach.
19. X said their health was affected by dust, even though they live some distance from the site. They also believe they were caused an injustice because of the amount of time they spent challenging the Council about what had happened.

My findings

20. 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.
21. 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?
22. 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.
23. 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.
24. I decided not to investigate this complaint further, and my reasons are as follows.
• I have seen no evidence of fault, including unreasonable delay, in the way the Council dealt with X’s planning enforcement allegations. The development site clearly raises complex issues and needed the involvement of specialist officers from environmental health. The Council worked with the developer to improve the situation and decided to end its investigation when it was satisfied with the improvements that were made. This was a decision it was entitled to make.
• X lives some distance from the site, but says their health was affected by dust from construction works. We are not a court and cannot provide a remedy for a personal injury. X is dissatisfied with the Council’s decision not to take formal enforcement action but could act themselves if they can produce evidence that would satisfy a magistrate. Individuals can take their own action against others who cause nuisance under section 82 of the Environmental Protection Act 1990.
• We may decide to recommend remedies for time and trouble in bringing complaints to our attention. We would only normally do this if there was a significant injustice caused by some fault in the Council’s response through its complaints process. I did not find it necessary to recommend such a payment in this case.
• X suggested the way the Council used its discretion was legally wrong. We are not a court and cannot determine the lawfulness of the Council’s actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman