Summary: Mr X complained about the Council’s decision to approve a planning application for a site near his home. He also complained about its decision not to take formal enforcement action in response to his reports of breaches of planning control. We do not find fault in the Council’s actions.

The complaint

1. Mr X complained about the Council’s handling of a planning application for a development near his home. He complained the Council:
• granted planning permission for a large development in a small rural village; and
• failed to take enforcement action against breaches of planning permission at the site.
2. Mr X says this has caused him worry, anxiety and spoilt the enjoyment of his home.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint unless we are satisfied the council knew about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. 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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What I have and have not investigated

7. I have investigated the concerns raised by Mr X in his complaint to the Council. I have not investigated matters after this date for the reasons set out in paragraph 3.

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How I considered this complaint

8. As part of my investigation I have:
• Discussed the complaint with Mr X and considered information he provided;
• Made enquiries of the Council and considered its response and information it provided.
• Considered the relevant legislation, guidance and policies.
• Set out my initial view on the complaint in a draft decision statement and invited Mr X and the Council to comment.

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What I found

Planning permission

9. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
10. Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

11. 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.

12. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.

Enforcement

14. Planning authorities may take enforcement action where there is a breach of planning control.
15. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 as:

• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.

16. 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.
17. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)

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Statutory nuisance

18. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles;
• smoke from premises; and
• smells from industry, trade, or business premises.

19. To amount to a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.

20. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets (logs), and undertake site visits. Once evidence gathering is completed, the EHO will assess it. When doing so, the officer will take account of factors such as the timing, duration, and intensity of the alleged nuisance. The EHO will then exercise their professional judgement to decide whether a statutory nuisance exists.

What happened

21. In 2022 the Council received a planning application for a residential development near Mr X’s home.
22. The Council set out its consideration of the application in a case officer report. The report said:
• the application site is identified for housing development in the Council’s local plan; and
• the Council granted planning permission for a similar development at the site and so the principle of developing the site for housing is established.
23. The report also considered the impact of the proposal on the amenity of neighbouring properties. It said:
• the distance between the development and existing residential properties (including Mr X’s home) is enough to prevent any unacceptable impact from overlooking or overshadowing.
• Officers accepted there may be some disruption associated with access to the development, but this would not be significantly harmful.
• the report also recognised neighbouring properties are next to open fields and the proposal would change this to a residential development. However, it said the principle of a residential development on the site was established and the proposal would not cause unacceptable harm on the amenity of existing residents.
24. In early 2023 the Council granted planning permission for the application subject to conditions including condition Z requiring a Construction Management Plan (CMP) be approved by the Council before works begin.
25. The developer started works shortly after planning permission was granted.
26. In March the Council received an application to discharge condition Z. The application included a CMP explaining what actions the developer would take to mitigate against the impact of works at the site. The plan said:
• Machinery and dust causing activities should be located as far away as possible from existing residential areas.
• Hard surface areas will be cleaned regularly with sprinklers and bowsers.
• A wheel washing system will be implemented to prevent mud and dust leaving the site.
• Operations with a high potential for causing dust should be enclosed.
• Dust management will be controlled by dampening down and good housekeeping.
• Dust and debris netting will be installed before to works begin and remain until works finish.
27. In June Mr X complained to the Council about dust from the site covering his garden and windows. He also complained about vibrations from works at the site damaging his home.
28. The Council spoke with the developer who said they were managing dust at the site in line with the CMP provided as part of the application to discharge condition Z.
29. On 3 July Mr X complained to the Council’s Environmental Health (EH) team about dust from the site affecting his home. He said his children could not play outside and they could not open the windows.
30. An Environmental Health Officer (Officer Q) replied and asked Mr X to complete log sheets to record incidents of dust nuisance.
31. On 5 July Officer Q wrote to the developer about Mr X’s complaints and said he would visit the site. The developer said he would damp down the site more often.
32. On 6 July Officer Q visited the site. He found the dust nuisance was the result of soil movement during works combined with breezy conditions. He said he would continue to monitor the site. He also said he could not feel vibrations from a roller used on site.
33. On 10 July Mr X contacted the Council again. He said the problems with dust were persisting and vibrations from machinery were causing internal damage to his home. He stated the Council should stop works at the site until condition Z is discharged.
34. On 13 July Mr X contacted Officer Q again explaining the developer was not following the proposed CMP. He questioned why the car park for construction vehicles is next to his home when the CMP said works should be located as far as possible from existing homes.
35. On 19 July the Council inspected the development site. It found the developer could do more to manage dust at the site. It recommended the developer put extra measures in place. The developer said the site experiences strong winds and so using sheets or netting was dangerous. Planning enforcement officers accepted this and suggested the use of sprinkler systems or constant spraying instead.
36. On 20 July Officer Q visited the site again. He witnessed dust drifting towards nearby homes including Mr X’s. Officer Q wrote to the developer explaining dust mitigation measures were not being used often enough and were also not being used on roadways. He said the Council was considering issuing a formal notice for dust nuisance.
37. On 21 July the developer told the Council it would arrange for sprinklers to be used on the areas nearest Mr X’s home. It was also using an extra bowser on the car park area.
38. Officer Q told Mr X he would need to see if the developer’s proposed actions stopped the dust nuisance before he issued a notice. He also told Mr X the developer put the car park where it is because it was the most practical location considering the nature of the site and the phases of construction. He told Mr X he would continue to monitor the site.
39. In early August Mr X returned completed log sheets. In the accompanying email Mr X reiterated the impact of the dust but noted it was less problematic during wet weather.
40. Throughout late August and September Mr X continued to tell Officer Q about dust nuisance from the site. Officer Q told the developer about the problems and asked them to act to prevent them. He also visited the site and saw the developer was doing all he could to prevent dust.
41. In October the Council approved the application to discharge condition Z.
42. Also, in October Mr X provided Officer Q with videos of dust drifting over his home from the site. He said fencing at the site was not high enough to protect his home and debris netting was not in place contrary to the CMP.
43. Officer Q told Mr X the videos were useful, but he would need to witness the nuisance himself before taking further action.
44. Officer Q wrote to the developer saying he was considering issuing a formal notice for dust nuisance. The developer told Officer Q recent dust reports were associated with works to extend the car park.
45. The Council carried out further site visits throughout October, but officers did not witness a nuisance.
46. In 2024 Mr X has continued to raised concerns about works at the site.

Mr X’s complaints

47. Mr X made a stage one complaint to the Council about it allowing works to continue at the site despite the pre-commencement conditions not being discharged. He also complained about works at the site damaging his home.
48. The Council replied in July 2023. It said that damage to his home was a civil matter between Mr X and the developer. It explained it had opened a planning enforcement investigation into works starting without pre-commencement conditions being discharged.
49. In November 2023 Mr X escalated his complaint to stage two. He complained the Council had not managed, controlled or enforced planning conditions and this had resulted in dust and vibration nuisance.
50. The council replied in early December. It said :
• The Council has investigated Mr X’s reports of dust nuisance and the developer has introduced extra measures to lessen the impact.
• Officer Q has visited the site and continues to monitor the situation.
• It apologised for failing to discharge condition Z in a timely manner. Nevertheless, officers had responded to Mr X’s concerns and measures taken to reduce the impact on his home and so, it considers the results were the same as what the condition sought to achieve.
51. Unhappy Mr X complained to the Ombudsman.
52. We made enquiries of the Council. In response it said:
• Planning enforcement officers considered it was not proportionate to take formal enforcement action against the developer for starting works before Condition Z was discharged. It said the developer had put in an application to discharge the condition which it was considering when Mr X made his initial reports.
• Officers from its Planning Enforcement and Environmental Health departments worked with the developer on Mr X’s concerns and implementing the CMP.
• Officers visited the site in response to Mr X’s concerns and they sought extra measures to address dust.
• Early visits to the site found dust was also coming from neighbouring farmland because of dry conditions.
• Problems with dust at the site were intermittent and the developer took actions to address the issue of dust. For these reasons it was not proportionate to issue a notice under section 80 of the Environmental Protection Act 1990.

Finding

53. We are not a planning appeal body. Our role is to review the process a council has followed when making planning decisions. If we consider it followed those processes correctly, we cannot question whether it was right or wrong. We look for evidence of fault causing significant injustice to the individual complainant.

Planning application

54. The officer’s report considered the impact of the proposal on neighbouring properties. It noted the development would have some impact on the amenity of properties closest to the site but decided this would not be unacceptable. I am satisfied the Council correctly considered this matter.
55. The report also considered if the proposal was suitable for the local area. It noted the site was identified on the Council’s local plan as location suitable for a housing development. The Council must have regard to its planning policies when deciding a planning application. The report also considered the impact of the proposal on the character of the local area and decided it would not have a significant impact. I am satisfied the Council took the relevant matters into account when considering this matter.
56. For the above reasons I am satisfied the Council properly considered concerns about the impact of the development on existing residents and the local area. As the Council followed the correct decision-making process there are no grounds for me to question its decision to approve the application.

Enforcement action

57. Works began on site before pre-commencement conditions were discharged. This is a breach of planning control. The Council decided it was not proportionate to take enforcement action as it was considering an application to discharge the conditions. The developer was also acting as it asked to address concerns about works at the site. I am satisfied the Council had regard to the relevant matters when considering this breach and that its decision is in keeping with government guidance which states enforcement action should be proportionate.
58. Mr X made reports about excess dust and vibrations from works at the site. In response the Council:
• considered the reports made by Mr X;
• visited the site and his home;
• asked the developer to act on its concerns that more could be done to better manage dust at the site;
• considered if formal enforcement action was necessary; and
• considered if it should issue a notice under the Environmental Protection Act 1990.

I am satisfied the Council followed the decision-making process we would expect and considered the relevant matters when doing so. Therefore, I do not find fault by the Council in its handling of Mr X’s reports.

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Final decision

59. I found no fault by the Council and so, I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman