Summary: X complained about the Council’s failure to properly deal with their concerns about the unacceptable impact of development on them and their home. We found no fault in how the Council responded to Xs’ concerns.

The complaint

1. X complained about the Council’s:

• handling of a planning application for development near their home; and
• response to their complaints about the impact of the development’s construction on their home, including noise, diesel fumes, and vibration.

X said the development and its construction caused significant distress and disruption, adversely affecting their living and working conditions and their health and well-being. X wanted the Council to revisit the planning application and pay compensation for the distress, disruption and impact of the development on their lives.

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The Ombudsman’s role and powers

2. 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 a council made its decision. If there was no fault in how the council made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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What I have and have not investigated

6. X’s complaint included the Council’s handling of a planning application. The Council had granted planning permission for the application development. It had also approved a Construction Management Plan (CMP) for the development. (A CMP aims to reduce, but cannot fully prevent, the harmful impact of construction work on nearby land and property.) The Council placed the CMP on its website with the planning information for the development. These events took place more than 12 months before X first complained to us. A complaint about the Council’s handling of the planning application was therefore a late complaint (see paragraph 3 of this statement).
7. Construction work had taken place within 12 months of the grant of planning permission. And X had also complained about the developer cutting down a mature tree. The tree felling took place more than 12 months before we first received Xs’ complaint. So, this was also a late complaint.
8. I found no good reason to investigate Xs’ complaints about the Council’s handling of the planning application, or the felled tree.
9. My investigation focused on that part of Xs’ complaint about construction of the development approved by the planning permission (see the second bullet point in paragraph 1). My investigation covered about 18 months. The start date was 12 months before X first complained to us. The end date linked to the Council signposting X back to us should they remain dissatisfied with its final response to their complaint.

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How I considered this complaint

10. I considered evidence provided by X, including video recordings and photographs taken during the construction works. I also considered evidence provided by the Council and relevant law, policy and guidance. I shared Council information with X. I also gave X and the Council an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

11. Most development needs planning permission from the local council. And planning permissions usually have conditions to control the approved development. Sometimes, a legal agreement, made under section 106 of the Town and Country Planning Act 1990 (the 1990 Act), further controls an approved development. Here, a section 106 agreement for the development said, among other matters, the developer had to get the Council’s approval to a CMP.
12. A failure to comply with a planning condition is breach of planning control. Councils have powers to take enforcement action under the 1990 Act if they find a breach of planning control. Planning enforcement is discretionary. And the Government’s National Planning Policy Framework (NPPF) guidance says councils should act proportionately in responding to a suspected breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public. So, councils may decide to take informal action or not to act at all. Informal action might include negotiating changes or seeking an assurance from a developer.
13. To justify formal enforcement action for a breach of a CMP, councils usually need evidence of persistent breaches that cause demonstrable harm to the public.
14. Where councils find serious harm caused by noise, vibration or dust pollution from construction works, they have added powers. For example, councils may serve notices under the Environmental Protection Act 1990 and Control of Pollution Act 1974 to stop or control noise and other nuisances.

The Council’s policies

15. The Council has a 2020 Planning Enforcement Plan (the Plan), which summarises the enforcement process. The Plan reflects the NPPF in referring to proportionate enforcement action. It also says the Council will look to resolve a breach through negotiation unless it finds serious or irreparable harm needing immediate action. Where the Council investigates a breach, the Plan says it will update the person that reported it within a month. And the Council will give further updates at key stages, for example, when taking formal action, and at least every two months.
16. The Plan says the Council has a CMP Enforcement Officer (CMPEO). responsible for investigating breaches of CMPs. Where it finds a breach of a CMP, the Council considers:

• the nature/number of previous instances of the breach;
• why the breach took place/has the correct procedure been followed; and
• what steps have been taken to ensure the breach does not reoccur.

17. If the CMPEO finds serious harm or repeated incidents of a breach, the Council will ask the developer to give an undertaking to secure compliance. If the developer fails to keep to the undertaking, the Council will ask the courts for an injunction.
18. The Plan also refers to the Council’s Construction Management Forum (the Forum). This is a multi-disciplinary team comprising the CMPEO and officers from other departments that deal with construction sites. The Forum meets weekly to discuss and decide any action needed to secure and manage CMPs during construction works. The CMPEO usually takes the lead, liaising with other officers as necessary, in responding to complaints, including of noise, about sites with a CMP. The Council carries out planned and unplanned site visits and inspections both in response to complaints and to check compliance with a CMP.

The position during the 18 months investigated

19. By the start date of my investigation, the Council had granted planning permission for development of land (the Site) near Xs’ home. A condition on the permission dealt with noise from plant and machinery used on the Site to safeguard living conditions for neighbouring properties.
20. The Council has also approved a CMP for the Site. The CMP set out the agreed working hours for construction of the development, which were in line with the Council’s published standard working hours. It also gave the hours during which noisy works, for example, demolition, would take place. The CMP included the developer’s noise survey for the Site and set out measures for reducing noise and vibration during demolition. The CMP also referred to the Council’s powers under the Control of Pollution Act 1974 (see paragraph 14). The CMP named Xs’ home as a property likely to be impacted by the construction work. The CMP also set out how people could contact the developer with questions or complaints about the works.
21. Works commenced on the Site and X started to report incidents, mainly of noise, but also, for example, of vibration and fumes, to both the Council and developer. The Council opened an enforcement case to monitor the developer’s compliance with the CMP during the works. The Council considered much of Xs’ correspondence about the Site within this general enforcement case, which remained open until completion of the development.
22. The Council carried out its first, planned, CMP inspection of the Site. The Council’s notes of the visit showed noise levels were “acceptable”. There were minor issues, for example, no delivery or complaint logs on the Site. The developer dealt with these issues within 48 hours of the visit. The Council’s formal report of the visit therefore found the Site complied with the CMP and was “well-managed and organised”.
23. The Council carried out two further CMP visits, both unplanned, meaning the developer had no notice of the visits. The Council’s notes of the second visit found overall compliance with the CMP but a “few actions” needed, which the developer agreed to address. The actions included reinstating bait boxes on the Site and sending noise reports to the Council. (The evidence showed the developer then sent noise information to the Council.) The next CMP visit was partially completed as the developer was not available at the Site. The Council’s records showed no issues with the matters assessed at the partial visit.
24. During the 18 months of my investigation, the Council responded to Xs’ concerns by contacting the developer about the issues and making other visits to the Site. The Council also gathered information, including the developer’s noise reports.
25. The Council responded to Xs’ correspondence and provided updates. For example, the Council told X about the first planned CMP visit. And that, after review by its environmental health officers, noise from the Site was within legal levels. The Council told X the machinery that had produced fumes:

• did not have an engine size needing formal registration;
• had been moved within the Site following the complaint; and
• now was no longer on the Site.

The Council, while recognising construction was disruptive, told X it could not prevent works during hours allowed by the CMP.

26. With X continuing to report concerns, a Council officer visited Xs’ home. The Council then asked the developer to consider if the works programme could include regular quiet times. The developer said quiet times already occurred during breaks but it would try to meet the Council’s request where possible. The Council updated X on the visit, including about ‘quiet times’, and confirmed noise mitigation measures remained in place on the Site.
27. Later, a Council environmental health officer visited the Site. During the visit, the environmental health officer and the developer discussed working ‘two hours on/off’ for noisy work, for example, concrete breaking. The Site’s CMP did not include working two hours on/off and such working meant it would take longer to complete the development. The environmental health officer did not witness any fumes from the machinery on the Site during the visit.
28. In later responses, the Council, while recognising Xs’ experience of living near the Site, confirmed the developer was complying with the CMP. The Council said it had considered what more might be done to reduce the impact of the works. But a CMP could not remove all impacts of construction work.
29. X raised a further complaint about machinery and fumes from the Site. The Council carried out a further visit and found, overall, compliance with the CMP. However, the developer reported a breach of air quality rules. After considering the circumstances leading to the breach, the Council’s air quality officers decided to take no further action. The developer also dealt with a dust incident by closing gaps in the sheeting around the construction works. The Council continued to find plant and machinery on Site during its visits met relevant environmental controls. The developer also reported incidents when work exceeded the CMP working hours but said this was by no more than an extra hour. The Council said no further such incidents took place after it issued warnings to the developer, who also apologised.
30. X, finding the impact of the continuing work intolerable, formally complained to the Council. The Council recognised the impact of the works on X. But said monitoring showed noise levels were acceptable and it had found overall CMP compliance. And, the developer was now stopping or pausing all works at 5pm rather than 6pm. The Council also offered a meeting on the Site with both X and the developer. The Council said it had investigated their concerns and acted to ensure compliance with the CMP and planning permission. It did not uphold Xs’ complaint and signposted them to us.

What the Council told us

31. The Council said construction work was inherently noisy. And, in London, construction often took place close to existing buildings that were sensitive to noise and vibration. It referred to the Control of Pollution Act 1974 and said construction work should be carried out using the Best Practicable Means (BPM). And doing so was key to controlling noise and vibration. The Council confirmed the CMP mitigation measures on the Site reflected BPM. And there were no available alternative construction methods that would have significantly reduced noise levels. The developer’s compliance with the Site CMP showed compliance with BPM. And, while noise levels for some works were high, they were acceptable. The Council also confirmed it had reviewed all information provided by X in dealing with their concerns about the Site.
32. The Council said it found no grounds to use the legal powers it had to control noise and other nuisance. A notice under the Control of Pollution 1974 would have set out similar requirements to those in the Site CMP. And it did not witness any legal noise or other nuisance on the Site giving grounds to serve a formal notice under the Environmental Protection Act 1990.
33. The Council said its website now included information for people to complain about non-compliance with a CMP.

Consideration

Introduction

34. I recognised X found the impact of the construction work, which lasted longer than first estimated, unacceptable. And I had no reason to doubt the strength and depth of the effect X described the works as having on their health and well-being. However, construction work, especially demolition and excavation, is inevitably noisy and disruptive. And, while temporary in nature, it can continue for a significant time that, for those living and working nearby, may seem endless.
35. Our role is not to ask whether a council could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
36. As a publicly funded body, we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer or address every question and issue a complainant may have about what a council did or did not do. Here, we held a lot of information about Xs’ complaint. I carefully considered all the information provided by both X and the Council. However, this decision statement does not, and does not need to, address every point and issue raised in the complaint papers.
37. My focus was whether there was evidence the Council had fallen below acceptable administrative standards and so acted with fault in responding to Xs’ complaints about the Site during the 18 months covered by my investigation. In doing so, I paid particular attention to Xs’ concerns about noise, which often featured in their correspondence with the Council.

The Council’s response to Xs’ reports about the works

38. X often found the Council’s responses too slow and or inadequate. They were also concerned that steps to address their concerns were not taken when they first raised them. For example, the Council referred to ‘quiet times’ several months after they first complained about noise from the Site. I considered whether the Council’s handling of Xs’ concerns and the timeliness and content of its responses showed it fell below acceptable administrative standards.
39. The evidence showed the Council considered Xs’ reports of noise, fumes, vibration and other matters. The steps taken included visiting the Site. I recognised X found some Council visits took place on quiet days. However, as the Council made both planned and unplanned visits, I found no fault here. The Council also gathered information, including about noise, both from the developer and when visiting the Site. It viewed plant and machinery on the Site and checked whether it needed to be registered. (The Council witnessed no issues with fumes caused by plant and machinery on the Site.) The evidence also showed liaison between Council officers in line with the Forum (see paragraph 18). For example, the Council’s environmental health officers assessed noise from the Site but did not find it unacceptable. The Council’s actions were those I would normally expect a council to take to look into residents’ concerns about the adverse impact of construction work. I found no fault in how the Council responded to Xs’ concerns.
40. The evidence also showed the developer cooperated with the Council, including responding quickly to address points raised during CMP inspection visits. Given the developer showed willing to engage with the Council, I found no fault in it continuing to address Xs’ concerns informally. Resolving issues without recourse to formal legal action (unless there were serious breaches) was in line with the Plan and CMP enforcement (see paragraphs 15 to 17). So, the Council was not at fault in following such an approach especially as it found overall compliance with the Site’s CMP.
41. However, I recognised Xs’ frustration when the Council’s approach meant months had passed before, in communicating with them, it raised ‘quiet times’ and working hours. But, the Council had not found any substantive and or unresolved non-compliance with the CMP or other breaches of planning control on the Site. I therefore did not find the Council at fault for not engaging with the developer about added mitigation measures sooner than it did. And, having raised ‘quiet times’ and reduced working hours for ‘noisy’ activities, the evidence showed the developer sought to be cooperative. Without any breach of relevant legal controls or non-compliance with the CMP, which the Council approved as reflecting BPM, the developer did not need to take added steps.
42. I recognised X considered the Council was reactive. And that it placed too much weight on what the developer said while failing to get their views. However, planning and construction enforcement is often reactive. Councils are not ‘site managers’ for third-party development and cannot maintain a daily or routine presence on construction sites. Here, having received and considered Xs’ reports, it was appropriate for the Council to engage with the developer about the concerns raised. The Council’s views also took account of information gathered from visits to the Site. Taking such steps meant the Council, through its professional officers, had an informed basis on which to make its decisions. And the Council found the developer was, overall, complying with the CMP and it had no grounds to take formal action under other relevant legislation. As I found no fault in how the Council acted, I could not question its decisions, including the judgement of its professional officers.
43. X were dissatisfied with the timeliness and content of the Council’s responses. I recognised X sometimes chased the Council for a response. However, considering the correspondence as a whole, I did not find the Council fell below acceptable administrative standards. The evidence showed the Council usually responded without undue or avoidable delay. And, on occasion, where appropriate, the Council apologised if there was delay. I also found the content of the Council’s responses were proportionate, reasonable and appropriate. And, when X questioned a response, the Council was usually willing to continue engaging with X. And, it is not fault for a council, having addressed a matter, to reach the point where it advises a correspondent it has nothing further to add to earlier responses.

Conclusion

44. I did not doubt construction work on the Site was noisy or question its profound impact on X. However, the Council took suitable steps to consider Xs’ concerns and I found no fault in how it responded to them. Without evidence of fault, I could not criticise the Council regardless of how strongly X found what happened to be unacceptable.

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Decision

45. I found no fault.

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Investigator's decision on behalf of the Ombudsman