The Ombudsman's final decision:
Summary: Mrs B complained about the actions the Council took in response to concerns she raised about breaches of a plan to control construction traffic to a major development site near her home. She said the traffic was dangerous and was spending a lot of time and trouble in pursuing the matter. We cannot find fault with the Council.
- Mrs B complained that Vale of White Horse District Council (the Council) has taken insufficient action to enforce the terms of the Construction Traffic Management Plan (CTMP) for a large development near to her property. Since the development started in May 2019, heavy lorries have ignored the signed route and gone through her village, down narrow lanes and near schools/nurseries creating dangerous situations. The developer has delayed placing the required signage, failed to ensure the signs remain in place, failed to ensure a person is on the gate to monitor traffic on a daily basis and failed to ensure the site is secure. This has caused Mrs B significant frustration and time and trouble over a prolonged period. She is very concerned that the problems will escalate when a second large development commences in the near future.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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(i), as amended)
How I considered this complaint
- I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. 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 2018, paragraph 58)
- The Council granted planning permission for a large development of houses, near to Mrs B’s property. A condition of the permission was to have a Construction Traffic Management Plan (CTMP) to control the impact of the development on the surrounding area. Part of this included specifying a route with 25 signs for HGVs delivering to the site. The purpose was to prevent large lorries travelling through the village, along narrow roads with pedestrians, schools and nurseries. The CTMP also required the developer to check the signs daily to ensure damaged ones were replaced.
- In spring 2019 the developer started some preparatory work to create the access road and entrances. Residents complained of mud on the road and lorries going through the village. The Council asked for some amendments to the CTMP which were submitted and approved in mid-May, including the installation of 25 signs on the alternative lorry route.
- In response to complaints from residents, the Council contacted the developer who reminded its contractors of the correct route and said if lorries arrived from the wrong direction, they would be turned away and banned from the site.
- In June 2019 the Council asked the developer to stop work as the access to the site was not in accordance with the planning permission. The developer complied straightway and met with a highways inspector from the County Council to resolve the issues over the entrances. They also agreed a one-way route through the site and a wheel wash-down area. The County Council agreed to check the route signs once they had been installed.
- At the same time Mrs B complained to the Council about a number of issues and wanted to set up a residents’ liaison meeting with the developer and the contractor. The developer responded to the concerns the same day, saying they were dealing robustly with deliveries arriving from the wrong direction and were liaising with the County Council over the signs
- Mrs B complained to the Council about site workers using the wrong entrance to access the site which was not in accordance with CTMP. The Council responded the same day explaining that site workers accessing the site were not covered by the CTMP. It also informed Mrs B of the one-way system agreed by the County Council which would utilise both entrances to the site.
- The developer met with the Council and the County Council in early July to approve the access and confirmed the signage should be in place by 5 July 2019. Mrs B suggested more signs at some locations. The Council forwarded the email to the developer but informed Mrs B that there was no requirement to comply with the request. Towards the end of July 2019 Mrs B said in an email to the Council that there was clearly visible progress.
- In September 2019 Mrs B submitted a formal complaint about the change to the access routes into and out of the site. She questioned why and how the consensus reached in the CTMP had been overruled. In early October Mrs B submitted a letter from the Health and Safety Executive (HSE) confirming it had stopped the use of one of the entrances due to safety concerns and the agreed access in the CTMP should be adhered to.
- The Council responded to the complaint on 9 October 2019. It said applicants can submit applications to amend the details of previously approved plans and the current application was under consideration. It understood the changes to the CTMP had been made after consultation with the County Council highways team.
- Mrs B was not happy with the response and escalated the complaint to stage two. She considered the Council had failed to recognise its overall responsibility for enforcing the CTMP and had deflected its responsibilities to the County Council. Neither had it responded to the intervention from the HSE.
- The Council responded to Mrs B on 6 November 2019. It said the CTMP was approved on 17 May 2019 after consultation with the County Council and did not prohibit use of the top entrance to the site. In respect of the HSE, it said that the HSE had a defined and separate role to local councils. It noted that it had advised the developer against using the top entrance due to the road within the site not being constructed and that the site manager had taken action. It said use of the entrance was not prohibited by the CTMP and so it could not take enforcement action. It had checked with the County Council: the highways team was actively monitoring the site and was satisfied with its findings. It would continue to monitor the site as part of their role.
- In early November 2019 Mrs B said to the Council that it was the first incident in a while as the developer’s actions had dramatically improved things. In mid-November 2019 Mrs B reported some more incidents to the developer. In one email she said that the site had done really well in terms of the CTMP until recently.
- In early 2020 the Council received a number of complaints about the arrangements for the developer to resurface the road through the village which affected a bus-stops and routes. The County Council said the road could not be closed for five weekdays and so weekend working was the only option. This was in breach of the CTMP but the County Council and the Council felt this was an allowable exception. Delays in arranging the work continued into April 2020.
- Mrs B and other residents continued to complain about lorries going through the village. The Council responded saying that not all lorries were accessing the site as there were several large developments in the area. The Council referred the matter to the developer who took up the issue with one of its contractors.
- In February 2020 Mrs B complained to the Council that it was cherry-picking which elements of the CTMP to enforce and its actions were not effectively stopping the lorries.
- The Council responded the same day explaining that the Council did not control all activity which takes place on building sites. Its enforcement officers and the County Council highways team were working together during the implementation of the planning permission. It said that in all cases where Mrs B had complained about a possible breach, the Council had liaised with the County Council, the developer and the site manager to ensure the issues were resolved. It considered any deviations from the required route had been sporadic and where the route had not been followed the site manager had refused the delivery and turned the driver away. If this happened more than once the developer had cancelled that particular contract. The Council was satisfied that the developer was taking sufficient action to control the situation.
- It went on to say:
The aim of enforcement regime is not to punish people or companies. Our aim is to stop planning harm. Just because there is a breach of planning control it does not mean that formal action will or should automatically follow. From the commencement of this development the developer has worked with both authorities and the residents and the issues raised have been remedied and continue to be managed. It is therefore not considered appropriate or proportionate to take formal action at present. Our approach accords with Government guidance and is set out in the council’s Enforcement statement…’
- Mrs B made further complaints about lorries using the wrong route and the Council failing to take effective action to stop them. Mrs B said the Council should be monitoring the situation with a more risk-based approach. She also raised complaints about a bus-stop closure and streetlighting, which the Council directed to the County Council as they were highway issues. The developer informed the Council that it was working hard to respond to the problems and a major development such as this would inevitably cause some disruption at times.
- Mrs B said the Council needed more technology to support enforcement such as cameras.
- In March 2020 the developer confirmed it had put a gateman on the site to help deal with non-compliant contractors.
- The Council responded to another resident’s complaint stating it was satisfied with the actions the developer was taking to comply with the CTMP. It said cameras were not practical and the Council did not have the unilateral power to install them. It directed the resident to the County Council regarding changes to speed restrictions.
- The site closed at the end of March 2020 due to the pandemic.
- Mrs B complained again that the Council relied on members of the public reporting issues and it should use more technology to assist with monitoring of breaches. She said the developer took too long to start using a gate person. The Council sent a final response to Mrs B in April 2020. It explained why cameras were not practical and that speed restrictions were a matter for the County Council. It agreed that it would be looking at the wording and use of conditions in future CTMPs to see if improvements could be made.
- In July 2020 the developer asked the Council if it could put up additional signage to help deal with lorries not following the route. The Council responded saying that it would need to submit a planning application to make changes to the CTMP. But it suggested the developer could make a separate advert consent application for additional signage. The Developer clarified they were looking to install more robust signs in the existing locations, so they lasted throughout the rest of the project. The Council says it has yet to receive an application.
- Mrs B complained to the Ombudsman in October 2020. She said the Council was not doing enough to respond to persistent breaches of the CTMP by delivery lorries. She said there was confusion over which version of the CTMP was in operation and that the developer was not monitoring the signs daily to replace damaged ones. She also said there was no evidence of a person on the entrance gate to assist with deliveries as required by the CTMP. She said she and other residents had reported 88 incidents of lorries breaching the CTMP between May 2019 and March 2020.
- In response to my enquiries the Council said it has received 16 concerns from Mrs B, it has one enforcement investigation ongoing and a total of six members of the public had raised concerns, in addition to parish and district councillors. It said no complaints had been raised since the site reopened in August 2020.
- The Council has also said that the developer installed CCTV cameras at the entrance in addition to a gate person. It also added and additional person for a short time after a particular supplier was reinstated to ensure the supplier kept to the routing agreement. Once satisfied the supplier was complying the developer reverted to CCTV as the main gatekeeper.
- The Council has said the developer was discussing the issue of permanent signage with the County Council and any necessary application for more permanent signage would need to be made to the County Council because the signs would be on highway-controlled land.
- Mrs B has provided evidence showing that she made many of her reports directly to the developer to resolve and did not inform the Council. She continued to do so after August 2020. She also says she and many other residents do not believe the signs are checked either daily or even weekly. She believes the Council, in conjunction with the County Council, should employ technological solutions (such as traffic cameras) to ensure major developments comply with planning conditions.
- Mrs B has taken a very proactive role on behalf of the whole community in alerting the Council and the developer to problems with lorries and deliveries to the major development site. I appreciate such a large project can give rise to disruption on many levels and I understand her fears about future developments.
- However, I cannot find fault with the way the Council has responded to her concerns. It has liaised promptly and frequently with the developer to resolve problems notified by Mrs B and other residents. It has liaised with the highways team at the County Council who have not raised any concerns and are satisfied with the action taken by the developer to adhere to the CTMP. The developer responded robustly and quickly to reports of non-compliant lorries, turning them away and in one case suspending use of a supplier for a period of time.
- In respect of the signs, I agree there is little evidence that the signs are regularly checked. But as the Council does not consider breaches are frequent enough to cause significant harm and are dealt with robustly by the developer, I cannot find fault with the Council taking no further action. The Council also says more signs were put up than originally required and the developer is in discussions with the County Council about permanent replacements. No application has been submitted and the Council cannot force the developer to do so.
- There is evidence that the impact of the lorries has improved significantly since the start of the project. The Council considers incidents have become more sporadic. It is satisfied that the developer has worked co-operatively and quickly to resolve the problems. This may not have stopped all the incidents, but it has led to an improvement. The Council does not consider sufficient harm is being caused or that the developer is failing to deal with continuing incidents, to justify taking formal enforcement action. That is a decision for the Council to make based on the available evidence. Mrs B may be disappointed that the Council has not taken enforcement action, but I cannot find fault with the action it has taken to respond more informally to the concerns raised. I consider it is proportionate and in line with Government guidance.
- I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mrs B.
Investigator's decision on behalf of the Ombudsman