Summary: We will not investigate this complaint about the Council’s decision not to take planning enforcement action against a construction company for a breach of planning control. There is not enough evidence of fault in the way the Council came to its decision to justify an investigation.

The complaint

1. The complainant, I shall call Mrs X, complains the Council refuses to act to prevent a construction company from using a nearby car park to store and transport excavated waste from highway works.
2. Mrs X says she suffers from dust and noise which is affecting her family’s quality of life. She wants the Council to stop the company from using the car park.

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

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How I considered this complaint

4. I considered information provided by Mrs X.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs X complains the Council refuses to stop a construction company from using a car park close to her home for the storage of excavated earth. She says the earth is machine loaded onto trucks for onward transport. Mrs X complains about noise and dust caused by the activity at the site.
7. The Council advises it has investigated Mrs X’s concerns. It says the company using the site is a statutory undertaker, which carries out highway maintenance, construction and installation of water, telecoms, and energy infrastructure.
8. The Council confirms the company has not sought or been granted planning permission to use the site. However, the Council has established the company will be using the site on a temporary basis for a year from January 2023. It has decided that:
• due to the temporary time the site will be used: and
• as any enforcement action will delay the highway work

it will not take action to stop the use of the site. It also confirms it has not received any complaints about noise from the site.

9. The Council has advised Mrs X to contact its noise pollution team to report noise concerns for consideration.
10. The Ombudsman does not provide a right of appeal against the Council’s decision not to take enforcement action against the unauthorised use of the site. Our role is to review the process by which the Council reached its decision.
11. There is not enough evidence of fault by the Council to justify an investigation. In reaching this view I am mindful that:
• it is for the Council to decide whether to taken enforcement action against a breach of planning control; and
• the Council has visited the site, considered Mrs X’s complaint and provided an explanation for its decision.

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Final decision

12. We will not investigate Mrs X’s complaint because there is insufficient evidence of fault in the way the Council considered Mrs X’s complaint and its decision not to taken enforcement action against use of the car park.

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Investigator's decision on behalf of the Ombudsman