Summary: Mr F complained the Council failed to take enforcement action on his reports of breaches of the construction management plan on a development next to his home. There was no fault in the Council’s planning enforcement actions. It failed to reply to Mr F in some instances but this did not cause significant injustice that warrants a remedy.

The complaint

1. Mr F complained the Council failed to take enforcement action on his reports of breaches of the construction management plan on a development next to his home. Mr F says he has been reporting problems since 2022, there have been works outside of permitted hours, excessive dust, noisy machinery and vibrations from earth works.
2. This has caused him and his wife distress, affected their quality of life and normal way of living in their home and has damaged their boundary wall. He also complained the Council did not respond to him, causing him time and trouble.

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The Ombudsman’s role and powers

3. 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)
4. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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 alleged breaches of planning control that Mr F reported, or that the Council was investigating, during 2024. This is because Mr F complained to us in December 2024 so events prior to December 2023 are late, as explained in paragraph 4 above. I cannot see any good reasons to investigate these matters now. This means I have not investigated Mr F’s reports about dust which he made in May 2023 and which the Council responded to him about on 29 June 2023
8. Mr F has continued to report alleged breaches. Any reports he has made after he came to us in December 2024 are too soon for us to investigate, as explained in paragraph 5 above.

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How I considered this complaint

9. I considered Mr F’s complaint, the Council’s response to our enquiries and the relevant law and guidance.
10. Mr F and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Relevant law and guidance

Planning permission

11. Councils should approve planning applications in line with their local development plan, unless material planning considerations suggest otherwise. Councils may impose planning conditions to make development acceptable in planning terms.
12. Councils often impose construction management planning conditions on approvals for major developments. Whilst these cannot ensure the impact on residents of major development is avoided entirely, they are aimed at reducing the impact and disruption caused by, for example:
• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and
• traffic from construction vehicles.
13. Failure to adhere to construction management plans during the course of the development could constitute a breach of planning control.

Planning enforcement

14. Councils can take enforcement action if they find a breach of planning control. However, councils should not take enforcement action just because there has been a breach. Government guidance says: “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)
15. 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 or seeking an assurance from the developer. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

What happened

16. Mr F lives next to a major housing development; works started in 2022. The planning permission included a condition requiring a Construction and Environmental Management Plan (CEMP) to be adhered to throughout the construction phase of the development.
17. The CEMP sets out (amongst other things) the permitted hours of construction and noise, vibration and air quality/dust mitigation and controls. It says noise and vibration monitoring stations (receptors) will be installed around the site. The planning permission requires the developer to comply with the British Standard code of practice for noise and vibration control (BS 5228-1:2009+A1:2014). There is reference to international guidelines for the measurement of vibrations (BS ISO 4866 2010) but the developer was not obliged to comply with those.
18. The hours of working were restricted to 8am to 6pm Monday to Friday and 8am to 1pm on Saturdays.
19. Mr F has reported a number of alleged breaches of the CEMP since works started. I have briefly set out below events relating to the alleged breaches he reported, or that the Council was investigating, during 2024. This is not intended to detail everything that happened.

Operating hours and building of a screen

20. On 13 January 2024, Mr F told the Council heavy construction machinery was still operating on site at 2.45pm on Saturday. He also queried whether permission had been granted for a 6m high by 20m wide screen that had been erected. The Council opened a planning enforcement case and replied on 17 January that the screen did not require planning permission. It would contact the developer about the breach of operating hours and update Mr F. There is no evidence it did so.
21. Mr F reported another breach of operating hours on 9 March. The Council spoke to the developer who accepted there had been an instance of workers starting before 8am. It had taken action to prevent this happening again. The Council advised Mr F of this on 12 March.
22. A report of an alleged breach on 18 June was disputed by the developer. The Council did not reply to Mr F.
23. A breach of operating hours was found on 14 December. The Council decided not to take any enforcement action. It replied to Mr F on 18 December.

Vibrations

24. On 20 February, Mr F reported there had been excessive vibrations since October 2023. Mr F said his reports of this had been ignored. His property was being shaken and his garden wall had recently collapsed. The Council said it would ask the environmental health team to check the monitoring data for vibrations at the site.
25. The Council replied to Mr F on 25 April. It said there had been a spike in vibrations in November 2023 but since then vibrations were in line with agreed levels. The enforcement case was closed.
26. Mr F emailed the Council on 22 May asking for information about the monitoring stations and saying there were still vibrations. The Council investigated but found no breach. It replied to Mr F about this on 9 August.
27. In October, Mr F again asked whether the monitoring stations complied with the relevant standards and reported more vibrations. The Council contacted the developer who confirmed that the equipment complied with the code of practice and the international guidelines. One of the monitoring stations had been placed as close as possible to Mr F’s property. The Council checked the monitoring data but found no breach or statutory nuisance. It replied to Mr F on 18 and 22 October.

Vegetation

28. Mr F told the Council on 24 November 2023 that hedging had been removed which he thought was not in line with the planning permission. The Council visited the site in February 2024 and found there had been a breach of planning control. It opened an enforcement case and started discussions with the developer about how to rectify matters. This case is still ongoing.
29. Mr F raised the matter again in January 2025. The Council replied on 13 January that the case was ongoing.

Mr F’s complaint

30. Mr F made a formal complaint to the Council on 3 September 2024 that it had failed to act on his reports of works out of approved hours, noisy machinery and vibrations which had damaged his boundary wall.
31. The Council replied on 13 September. It said:
• There had been times when it had not contacted Mr F about the conclusion of an enforcement case.
• No evidence of a statutory nuisance had been obtained and the monitoring data regarding dust, noise and vibration did not demonstrate any significant breaches of the CEMP. It had decided it was not expedient to take enforcement action about minor breaches of the CEMP.
32. Mr F remained dissatisfied and asked for his complaint to be escalated but no stage two response was sent.

My findings

33. The Ombudsman is not an appeal body. It is not our role to determine whether there has been a breach of planning control or whether enforcement action should be taken. That is the Council’s role. My role is to look at the procedures the Council has followed to reach its decisions. If we consider it followed those procedures correctly, we cannot question whether any resulting decision is right or wrong, regardless of how strongly a complainant may disagree with it.
34. I have reviewed the way the Council dealt with the enforcement cases it opened in 2024 when Mr F report alleged breaches of the CEMP.
35. The Council logged Mr F’s reports, opened enforcement cases and investigated by contacting the developer and reviewing the data on vibrations. It found no statutory nuisance or breaches of the CEMP. When it found breaches of the CEMP it decided it was not expedient to take formal enforcement action.
36. I appreciate that living next to a development causes disruption and can be stressful. But the Council is not obliged to take enforcement action even if there is a breach of planning control. Guidance requires it to consider if there is harm being caused and to act proportionately. In reaching its decisions, the Council took account of its guidance and information from Mr F. I have seen no fault in the way the Council made its decisions, I cannot therefore criticise it.
37. I have seen that there were two instances when the Council did not reply to Mr F about the outcome of his report. It also did not escalate his complaint in October 2024. This is fault but I do not consider it causes significant injustice to Mr F that warrants a remedy. He was in touch with the Council throughout 2024 about the building works and he was able to bring his complaint to the Ombudsman.
38. Mr F says the developer’s works caused his garden wall to collapse. Damage to property caused by a developer is a civil matter that does not involve the Council. Mr F should seek legal advice about making a claim against the developer. He may be able to go through his home insurance.

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Decision

39. There was fault but this did not cause significant injustice. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman