Summary: Mrs X complained about the Council’s decision to approve a public infrastructure project on land near her home. We ended our investigation as it is unlikely to result in a finding of fault or a meaningful outcome for Mrs X.

The complaint

1. Mrs X complained about the Council’s decision to approve a public infrastructure project near her home. Mrs X is concerned that the Council has given insufficient thought to the access to a works compound opposite her home. Mrs X said the access is unsafe and that her property will be damaged by the large number of vehicle movements during the construction works.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and a case officer’s report. I have also discussed a more recent planning application with a planning officer
4. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

5. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
6. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
7. 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.
8. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
9. 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.
10. Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions are aimed at reducing the impact and disruption caused by:
• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and
• traffic from construction vehicles.
11. While construction management conditions may help lessen the impact of major development, they cannot ensure it is avoided entirely. To justify formal enforcement action for this type of condition, councils usually need evidence of persistent breach of planning controls, that causes demonstrable harm to the public.
12. Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served using powers under the Control of Pollution Act 1974.
13. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’. Permitted development can include:
• the temporary use of land or buildings, works, plant or machinery in connection with building works or operations; and
• an access to a highway, which is not a trunk road or an unclassified road.

What happened

14. Mrs X lives near an area of open land, on which a developer applied for planning approval to construct public infrastructure works.
15. Mrs X is concerned about a works compound, which is on part of the site near her home and accessed directly from the road. The road is an unclassified road.
16. The Council’s planning case officer considered the application and wrote a report. The case officer’s report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on the environment and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions, including a construction traffic management plan.
17. The Council approved the application subject to the recommended conditions.
18. The Council said that works began on the site but there were ground problems. The developer began moving the underground part of the approved works to more stable ground. The Council informed the developer that though the underground works were permitted development, the change would mean above ground plant would be in a different location, and this did require further planning consideration. Mrs X said she disagreed with the Council’s version of events because work had not begun before ground problems were found on site.
19. The developer has recently submitted amended plans in a new planning application, which has not yet been determined. The application includes a planning statement which explains the reasons for the changes. It also refers to temporary compound and access near to Mrs X’s home but says that this is not part of the application as it is permitted development. This is because the temporary compound is connected building works and the access is onto an unclassified road.

My findings

20. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
21. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
22. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
23. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
24. I should not investigate this complaint further, because:
• The planning process is ongoing and the decision that is made will supersede the previous approval. If residents have any concerns about what was approved that they feel are still relevant, they can make them known before a decision is made.
• There was no clear and obvious evidence of fault in the decision making process so far. This is because the decision that has already been made included consideration of the plans, comments from consultees and the main planning issues, which is the process we would expect.
• The issues that most concern Mrs X are the temporary compound and access. These both relate to permitted development works, which can be carried out without the Council’s permission.
• The work is temporary in nature and though likely to result in significant disturbance to Mrs X and other residents, it will be of public benefit when it is finished. Also, when it is finished, the development is unlikely, in planning terms, to have much impact on its immediate environment.
• Mrs X believes properties have been damaged from vibration caused by construction traffic. Council planning authorities are responsible for considering whether development proposals are acceptable in planning terms. A grant of planning permission does allow the applicant or their agents to damage private property. Councils are not directly responsible for the actions and legal obligations of the developer or other third parties.

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Final decision

25. I ended my investigation as it is unlikely to result in a finding of fault or a meaningful outcome for Mrs X.

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Investigator's decision on behalf of the Ombudsman