Summary: We found no fault on Mrs P’s complaint about the Council’s planning enforcement team failing to take prompt and effective action against an unauthorised development. The environmental health team delayed responding to her initial report, failed to contact her after receiving the developer’s response to her reports, and failed to provide evidence of visits to her home. It also failed to produce a written nuisance assessment or give her written feedback. The agreed action remedies the injustice caused.

The complaint

1. Mrs P complains about the failure by the Council’s:
1. planning team to take prompt and effective action against a developer who built two houses close to her home which breached planning consent: and
2. environmental health team to act on her reports of nuisance from the site in the form of dust, noise, along with antisocial behaviour.
2. As a result, her amenities were affected, with the situation impacting on her wellbeing and mental health.

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The Ombudsman’s role and powers

3. 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)
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)

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Local planning authority planning enforcement powers

5. Planning authorities may take enforcement action where there is a breach of planning control.
6. 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.

7. 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.
8. 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

9. 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.

10. 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.

11. 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), fit noise-monitoring equipment, or 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.

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How I considered this complaint

12. I considered all the information Mrs P sent, the notes I made of our telephone conversations, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs P and the Council. I considered their responses.

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What I found

13. Mrs P is unhappy with the way the Council dealt with reports she sent in May 2023. These were about a developer constructing two houses to the rear of her home without planning consent. She is unhappy with the Council’s response to those reports.
14. She also reported examples of the site causing her a nuisance. Mrs P is unhappy as she claimed EHOs failed to act on these reports of the site causing nuisance from stone dust clouds, loud noise, and antisocial behaviour of the builders.
15. I now consider each of Mrs P’s complaints. Instead of referring to the agent, the development company, and the construction company separately, for ease I have referred to ‘the developer’ throughout.

Complaint a): planning enforcement

16. In May 2023, the Council contacted the developer following Mrs P’s reports of unauthorised development on two plots close to her home. It noted development on the plots differed from that shown on approved plans. It needed amended plans to address the differences between what was built and what the Council approved.
17. The Council accepted the developer did not engage with it and continued to build.
18. In June, the Council told Mrs P who the case officer was for her reports and explained enforcement was not a quick option. Officers visited the site and took photographs, copies of which I have seen. Mrs P had emailed about the lack of response to her report either from planning or environmental health.
19. The following month, the Council wrote to the developer. It asked for evidence either of there being no breach of planning consent, for the demolition of the development, or for it to send a planning application for consent. The Council received no response to this letter.
20. In August, Mrs P asked why the plans for the houses were not put out for consultation and asked for an update on the case. The Council explained the enforcement officer was dealing with a few complex matters at the time but would give her an update later that week. It later explained the developer was asked to send an amended scheme for the two houses which were not built according to planning consent. It did not yet have a revised planning application from the developer.
21. The Council told her it was looking at issuing a Planning Contravention Notice (PCN). A PCN allows a council to get detailed information about alleged breaches of planning control from land owners, occupiers, or operators. It is issued when a council considers a breach of planning control has happened but needs more information to consider for the investigation.
22. In September, the enforcement officer prepared a report for the issuing of a PCN. Mrs P invited officers to visit properties affected. The Council replied and said officers were familiar with the site, had previously done site visits, and they needed to prioritise dealing with the issues reported. It explained it wrote to the landowner and would serve a PCN.
23. In October, the Council served a PCN on the developer. The PCN set out the alleged breaches of planning consent, which included the construction of a pair of semi-detached properties.
24. The Council received a response to the PCN, a copy of which I have seen. The developer confirmed it was working on a planning submission to regulate the revised designs which it should send the following week. The Council told Mrs P of the PCN response and the new planning application.
25. In November, Mrs P sent the Council another email with photographs. This was about the progress of development works behind her house which continued. She asked questions about its impact on her privacy and how long it would take to validate the new planning application.
26. The Council responded to her email. While it received a planning application to regularise the two properties, this had still not been validated as further information was needed. Validation of a planning application was needed as the Council had to check the developer sent a complete application with all relevant supporting information. This part of the process is focussed on whether the application was properly made, not whether the proposals were acceptable. The Council addressed her concerns and went through the history of the site.
27. It sent a reminder to the developer in January 2024 about the need for information to verify the application. Mrs P also emailed the Council and again asked about when the application would be validated. The Council responded explaining why it needed more information before it could validate it.
28. In February, the Council again wrote to the developer explaining the planning application was invalid. It noted it had asked for further information to validate it in November 2023 and January 2024. It asked for a timescale for the submission of this information. Three days later it warned it would look at serving an enforcement notice if it received no response.

My Findings

29. I found no fault on this complaint. The Council had discretion about how to deal with the reported breaches of planning consent. It chose to liaise with the developer. When the developer ignored the Council, it served a warning letter at the end of July setting out what needed to be done. When the timescales for a response expired, the Council prepared a report about issuing a PCN which it then served in October.
30. The Council received a response to the PCN and then received a planning application to regularise the two houses close to Mrs P’s home. The Council warned the developer it could not validate the application as it needed further information. The developer failed to provide this information despite further warning letters sent in January and February 2024.
31. I am satisfied the Council responded to her queries, updated her when there was significant development on her case, and pursued the developer about the breach.

Complaint b): environmental health enforcement

32. In June, the Council apologised for the delay in responding to her reports about nuisance from the site. It told her noise, dust, and odours during construction works were not a breach of planning consent. It sent her a noise log sheet to complete. The Council sent her a letter towards the end of the month with a link about noise complaints and how she could complete a log through her account on its website. It also sent her an example log.
33. The Council sent a copy of a screen shot. This showed Mrs P calling about stone cutting and an officer responding about calling back shortly after. There was evidence of calls made the same day. There was also evidence of an email sent to her showing the stone cutting area provided by the developer.
34. The Council sent a letter to the developer warning it received a report about noise and dust nuisance, as well as loud noise from radios and the use of heavy machines close to residential properties.
35. The developer replied saying workers would cut the stone further down the site away from gardens and turn the radio down. It also explained they use standard vehicles during working week hours which was normal building activity.
36. In August, there was a site visit but there was no record of it. The Council explained an officer visited her home for at least an hour and looked at her notes and explained how officers needed to witness the alleged nuisance. The Council said it left her a contact number for her to call and officers would try to visit to witness a nuisance. The Council accepted it did not give her a specific written nuisance assessment as it considered the visit enough and the disturbances were separated by months. The Council accepted written feedback could have been given to her to confirm what was seen and discussed during the visit.
37. In October, the Council received further reports from Mrs P about loud radios, dust, antisocial behaviour, harassment, and hazardous operations by machines. The Council again wrote to the developer about her reports and asked for workers to be considerate when on site. The developer’s reply implied stone cutting was now finished.
38. In November, the evidence shows a screenshot of a message from Mrs P about the site with an officer replying he would call her back and then sending another message saying he was now free.
39. The Council said EHOs did not witness statutory nuisance during site visits. It advised Mrs P to report matters of antisocial behaviour to the police, which it had done.

My Findings

40. I found fault on this complaint for the following reasons:
1. The Council accepted it delayed responding to her initial report.
2. The Council accepted it failed to contact Mrs P about the developer’s response to her reports made in October.
3. There was no evidence to support its claim of an officer visiting her at home or considering her evidence. Nor was there a record of any specific written nuisance assessment given to her. The Council accepted written feedback could have been sent to her.
41. I consider the identified fault caused Mrs P an injustice in the form of distress. She had some frustration and uncertainty about what action the Council took in response to her reports at the time.

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Agreed action

42. I considered our guidance on remedies.
43. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs P a written apology for failing to: keep her fully updated on her nuisance reports; prevent the initial delay in responding to her report; provide a record of the home visit; send her a written nuisance assessment and written feedback.
2. Review processes so environmental health officers promptly respond to reports and give updates on significant developments.
3. Remind officers of the need to make and retain written evidence during investigations.
4. Remind officers of the need to make written nuisance assessments and send written feedback where appropriate.
44. The Council should provide us with evidence it complied with the above actions.

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Final decision

45. I made the following findings on Mrs P’s complaint against the Council:

• Complaint a): no fault; and
• Complaint b): fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman