Summary: We have discontinued our investigation of this complaint, about the Council’s handling of a planning application and disruption caused by the development. This is because we do not consider further investigation will lead to a worthwhile outcome.

The complaint

1. I will refer to the complainant as Mrs D.
2. Mrs D complains about development carried out opposite her property. She says the Council is yet to make a decision on the planning application for the development, despite it being submitted more than 18 months ago. In that time the developer has completed the work anyway, and so Mrs D complains the Council’s failure to make a decision means she and other residents have had no protection from the excess effects of the development.

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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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. I reviewed Mrs D’s correspondence with the Council, documents available on the Council’s planning portal, and the Council’s response to my enquiries.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. Mrs D lives directly opposite what was previously an open space. There is a narrow public highway which separates her house from this site.
8. In late 2020 a developer applied to the Council for permission to construct a building and associated infrastructure on the site. The Council decided some of the work was permitted development, which meant it did not need planning permission from the Council, and gave permission for the rest of the proposal in January 2021.
9. It included conditions on the permission, requiring the developer to submit to the Council, and receive its approval, for:

• a construction traffic management plan (CTMP);
• a construction environmental management plan (CEMP); and
• a scheme of noise control

before work began. The purpose of these plans was to ensure highway safety and protect the amenity of nearby residents during the construction.

10. The developer submitted the CTMP and CEMP to the Council in February, and it approved them in April. However, around this time the developer established it could not complete the work according to the approved plans, because of unforeseen issues with ground stability. It therefore changed the layout of the development to account for this.
11. In August, the Council identified the developer was not adhering to the approved plans. The developer accepted this and submitted a new planning application to the Council in September, seeking to regularise the new layout. In the meantime, the developer continued with the work.
12. This planning application remains outstanding. In April 2023, Mrs D told me the development work had recently been completed.
13. In August 2022, the developer submitted a noise control scheme to the Council, to discharge the remaining condition. This application also remains outstanding.
14. In January 2023, Mrs D had an exchange of emails with the Council. In her emails, Mrs D complained the developer was using the small public highway for the entry and exit of all vehicles related to the construction, that heavy vehicle movements had caused damage to nearby properties, and that the developer was working at weekends and in the evenings. She said residents were suffering from noise and pollution because of the work. Mrs D also complained about the environmental effect of the development and said it should have been clear to the developer the site was inappropriate.
15. Mrs D went on to question whether the work could benefit from permitted development rights while causing disturbance in this manner, and said the change in the non-permitted elements had led the developer to build on greenbelt land. And, as the work had been continued without permission, Mrs D said this meant the Council had a duty to take planning enforcement action against the developer.
16. In response, the Council explained the developer had taken the decision to continue the work without planning permission at its own risk, but it could not take enforcement action while there was a pending planning application. It explained weekend working had been part of the CEMP the Council had approved as part of the original application, and for this reason it would be unlikely to require different hours in respect of the new application.
17. Dissatisfied with the Council’s responses, Mrs D referred her complaint to the Ombudsman on 5 February.

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Legislative background

Planning permission

18. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.

Permitted development

19. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, local planning authorities have no control over these matters.

Decision making process & delegation

20. Councils delegate most planning decisions to their officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation.
21. Most planning applications should be determined within eight weeks, although the time limit is 13 weeks for major applications. If the planning application has not been determined by the end of this period, and an extension has not been agreed in writing, the applicant can appeal to the Planning Inspectorate (on behalf of the Secretary of State for Communities and Local Government).

Enforcement

22. 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.
23. 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.

Construction management conditions

24. 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.

25. While construction management conditions may help lessen the harmful 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.
26. 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.

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Analysis

27. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if (for example) it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this ‘fault’ and, where we find it, we can consider the consequences of the fault and ask the relevant council to address these.
28. But we do not make operational or policy decisions on councils’ behalf, and we do not offer a right of appeal against their decisions. If a council has made its decision without fault then we cannot criticise it, no matter how strongly a person opposes it. We do not uphold complaints simply because someone feels a council decision is wrong.
29. In this case, that means it is not for us to make our own judgement on the suitability of the planning applications, or whether the Council should have enforced against any disturbance caused by the development work, but just to ensure the Council has followed the proper process in making its decisions.
30. In her complaint to the Council, Mrs D questioned whether the work could be permitted development, given the noise and pollution it was causing to residents.
31. There is an important distinction to be drawn between potential disruption caused by the use of a development once constructed, and disruption caused during the construction work itself. The former is a material planning consideration – something which planning authorities must weigh up when deciding whether to grant permission – but the latter is specifically not. This is because construction work will almost always cause some disruption to local residents, and if this were a reason to refuse planning permission, then virtually no development would ever be possible.
32. Similarly, whether something carries permitted development rights is a question of what the proposed ‘end product’ will be. That work might cause disruption while underway does not mean it is not permitted development.
33. However, it is for this reason that planning authorities will often require developers to produce and adhere to a construction management plan, for developments which are likely to involve very noisy, dusty, or otherwise disruptive work. The purpose of such plans is to mitigate the impact on local residents as far as possible, for example by setting hours of work or limiting the use of certain pieces of machinery. If a developer consistently fails to adhere to a plan, the planning authority may treat this a breach of planning permission and take enforcement action.
34. In this case, as conditions on the original planning permission, the Council required the developer to produce two construction management plans – the CEMP and CTMP – and also a separate scheme of noise control. The developer quickly submitted the management plans and the Council approved them, meaning they were now in force.
35. But this only remained so until the developer submitted the new planning application. As the developer was no longer following the original permission, this meant the plans it had submitted to comply with conditions on that permission were now defunct.
36. Mrs D has complained the Council has allowed the developer to continue with, and now complete, the work without making a decision on the new application. This means the development does not have planning permission.
37. It is, in fact, not unusual for some planning applications to take a long time to decide; though given the Council decided the original application after only approximately two months, it is difficult to understand why the new application remains outstanding after nearly two years. And it is not unlawful for a developer to work while an application is pending, although they face the possibility the application may then be refused.
38. Either way I do not consider the lack of planning permission, in isolation, to represent an injustice to Mrs D. It is clear the Council is satisfied with the general principle of development on the site, as it approved the original application. The major changes the developer has made all have permitted development rights, and so this is not something the Council could have stopped it doing anyway; and the changes in the other elements are relatively minor. This being so, it appears unlikely the Council will outright refuse the new application, when it eventually decides it, and therefore there is no reason to think this has made any significant difference to Mrs D’s situation.
39. However, although it is not for me to decide whether a construction management plan was necessary, given the conditions the Council placed on the original application, on the balance of probabilities I consider it likely would have placed similar conditions on the new permission, had it decided it in time for this to be relevant. I am concerned, therefore, that the Council’s failure to deal with the planning application in a timely way meant the work has been undertaken without a valid construction management plan in place.
40. I asked the Council how it ensured residents were protected from excessive noise and other disruption during the development work, in the absence of a valid plan. In response, it told me:

“The Councils Enforcement Team were working closely with the applicant to ensure that any construction was being carried out in line with the details agreed in the original construction management and traffic management plan. Whilst it was accepted that this document was not enforceable, the Councils Enforcement Team were satisfied that the applicant was complying with this in any case. Given the applicant had submitted an application for the amended scheme, it was considered that there was no requirement to engage in more forceful action. Any allegations being made relating to the construction management, were investigated and discussed with the applicant. 

“The Councils Environmental Health Department were made aware of various concerns regarding noise and other nuisance and were in close discussion with the Councils Enforcement Team. The Environmental Health Team had various discussions with the applicant to ensure that works were not causing a statutory nuisance.”

41. The Council provided more detail about how it dealt with complaints it received during the development process. It described visits to the site by an environmental health officer and a planning enforcement officer, during which residents raised concerns about vibration causing damage to properties, and about the developer’s adherence to the working hours set out in the (defunct) management plan. It is clear the Council is satisfied none of the disruption caused by the construction work would have been significant enough to warrant any kind of enforcement action.
42. As I have explained, it is not for me to make my own judgement whether any disruption caused by the development was excessive and avoidable, or whether this would have justified the Council taking enforcement action.
43. This is not to say we could not find fault in how the Council had approached these matters. Normally I would expect to review the Council’s contemporaneous notes and records, before making a decision, and for this reason I asked the Council to provide copies of these as part of my enquiries; but it did not do so in its response.
44. Under other circumstances I might make further enquiries with the Council to obtain this information. However, upon review, I am not persuaded this is appropriate here. I am very conscious the development work is now complete. It is obviously not possible to decide retrospectively whether any disruption caused by the development was excessive, to the point of being enforceable; and so, even if I could say the Council did not respond properly to complaints it received, I still would not be able to say this made a difference to the outcome for Mrs D. I therefore could not say she had suffered an injustice, regardless of whatever else I might find.
45. This being so, I do not consider further investigation to be proportionate here, and so I will discontinue my investigation.
46. Mrs D has also raised a separate point, which is that, in responding to the consultation on the new planning application, the Council’s environmental health department recommended no weekend working be allowed on the site. From the Council’s response to my enquiries, it appears the environmental health officer made this recommendation again while investigating a complaint. Despite this, Mrs D complains the Council did not prevent the developer from working at the weekend.
47. However, the Council explained in its response to Mrs D’s complaint that, as it had approved weekend working as part of the original application, it would be unlikely to refuse this as part of the new application.
48. Although a planning authority must consider responses it receives from consultees, such as environmental health, during a planning application, it is not required to accept the views or recommendations consultees make. The decision-making power lies with the planning authority alone. Therefore, while I acknowledge the fact environmental health officers did not consider weekend working appropriate, this does not mean the Council was at fault for permitting it.

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Final decision

49. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman