The Ombudsman's final decision:
Summary: Miss X says the Council failed to effectively enforce breaches of planning conditions and this meant disturbance from development adjacent to her property caused her an injustice. She says she suffered ten months of extreme disturbance. She also says the Council did not implement the recommendations following her upheld complaint. The Council took proportionate steps to deal with the disturbances adjacent to her property, but it accepts it failed to update her regularly. It is also at fault for its failure to implement recommendations it made in the complaints process.
- Miss X says:
- The Council did not respond effectively to her complaints about development near her property. This includes her complaint that the Council should have ensured a different access road to the one used beside her property was used at an earlier stage. She says the continued disturbance caused her an injustice.
- The Council did not implement the recommendations it suggested in response to her complaint.
- The Council should not have granted permission for developers to use the road close to her property for access to the development.
The Ombudsman’s role and powers
- 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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 spoke with the complainant.
- I made enquiries with the Council and I researched the relevant law.
- Both the Council and the complainant were given the opportunity to comment on my draft decision. I considered any comments before completing this decision.
What I found
- A breach of planning control is defined in the Town and Country Planning Act 1990 (the Act), 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.
- Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under s187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.
- The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’.
‘’Effective enforcement is important to maintain 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.”’’
- Many years before Miss X moved into the area, the Council approved outline planning permission for a large development. The arrangements for access to the development were agreed before Miss X moved into the area in May 2018.
- Development works started before Miss X moved into the area. There were complaints from residents about noise and disturbance. Miss X was not the only resident to complain. The records show the Council was responsive to residents’ complaints.
- Council officers met with Miss X in November 2018 to discuss the problems.
- The Council served two enforcement notices at the end of 2018. It monitored activities. Miss X said this did not work.
- The records I have seen do not show that extensive monitoring was conducted, but enough evidence was gathered for officers to consider prosecution.
- The developers were warned that if they continued to breach planning control, it was likely the Council would consider prosecution.
- In January 2019 Miss X made a formal complaint at stage 1 to the Council. She complained, among other things, about:
- Its decision to grant planning permission for the development so close to residential properties;
- Its decision to allow the road where she lives to be used as a delivery route for the development sites;
- The vibrations and noise arising out of the number of lorries, particularly before 8am;
- An area near her house being used as a ‘reception’ area of HGV lorries and other large vehicles;
- The lack of communication with residents about the works taking place and the noise;
- the fact that the Council had not provided advance warning of two weeks of “extremely noisy” digger work outside her house;
- The Council allowing delivery lorries to use the car park opposite her house as a reversal space which meant ‘hundreds of lorries constantly turning in the car park opposite and driving back and forth opposite Miss X’s house;
- The Council allowing contractors to create muddy conditions, affecting cars; and
- The Council allowing contractors to use a noisy generator, which she said also remained on outside of the permitted hours.
- The Council responded. A planning officer, Officer P, said the use of Miss X’s road for access was approved at the time of the outline planning but developers have to act in accordance with their Construction and Environmental Plans (CEMP)s.
- Officer P added that:
- several breaches had been recorded, including a breach of working hours on the site.
- following the service of enforcement notices, the Council was continuing to monitor the site and was consulting with its legal team to consider prosecution.
- Officer P set out steps taken to reduce the impact of the development, including stationing men at the entrance to the development to direct lorries, better communication with residents about works and more efficient plans to deal with mud on the road from site activities, including extra road sweeping. He said the Council would continue to monitor the site and if necessary, progress with enforcement action if breaches continued.
- Miss X escalated her complaint to Stage Two. She said the situation was worse than before. She said communication from the developers remained non-existent. She also asked if the developers were to use extra road sweeping, that this could be after 8am in the morning on Saturdays.
- The Council addressed her query about road sweeping within a few days. It said that it did not consider 8am to be too early. Miss X was not happy.
- Miss X wrote to another officer involved in the complaints process, Officer D. She said Officer P’s approach had made the situation worse. She said that, as she was working from home, the constant disturbance from lorries was unacceptable. She said it was affecting her mental health.
- Officer D responded. She informed Miss X that the use of the access road she complained about was approved before Miss X moved to the area. She said that, “…a balance has to be achieved between the pressures for development and maintaining the quality of life of existing residents.” However, she went on to say that all development sites should be operated within the remit of their planning conditions.
- She said that, because of the number of breaches, the Council had got to the point of prosecuting the developer. She explained that a high level of evidence was needed before prosecution could proceed.
- She said another road had now been opened up for access, which should provide a significant reduction in noise and disturbance.
- She also said that the generator had been moved to the other side of the site so that this noise disturbance should no longer be a problem.
- She said the planning enforcement team was monitoring to check that the arrival of construction vehicles would not breach planning permission.
- She said she had requested that developers update newsletter information about the ongoing construction as soon as possible and that Miss X should be kept informed.
- Miss X said she had no communication from the developers and escalated her complaint to the Independent Complaints Investigator, (ICI). She said she wanted some compensation for what she had to endure. She also asked for an update on any prosecution action the Council planned to take.
- While she was awaiting a response from the ICI, she told the Council, in May 2019, that the ‘lorry situation was bad again’. She said it looked as though developers were breaching delivery times and routes again.
- The ICI upheld Miss X’s complaints about poor communication from the Council and recommended that the Council:
- formally apologise to Miss X within 14 days for the lack of a co-ordinated and timely update.
- provide Miss X with a further update on any contractor engagement and monitoring or enforcement action is relevant to her initial complaints.
- It did not accept that the Council had not been taking action, but that it had failed to keep Miss X updated. With regards to the commencement of legal action, the ICI noted that the Council had to give developers an opportunity to demonstrate they were being proactive before considering prosecution.
- It was also noted that it was understood that, “…there is a need for the Council to demonstrate to residents that they can have confidence in the Council as an enforcement agency.”
- Miss X thanked the ICI for his report but remained unhappy that the situation had been allowed to arise in the first place. She also said that, despite the opening of a new access road, there were still ongoing issues. She provided examples.
- Miss X did not receive a response to her email. She wrote to the ICI to inform him that the Council had not carried out the recommendations. She had moved out of the area at this point but said the Council was aware of her new address. She said that even though she had moved, she would still like to receive an update on monitoring or enforcement action.
- Miss X did not receive a response to the above email either.
- The Council accepts Miss X did not receive a response to the two latest emails. It says that all complaint mailboxes, at that time, were allocated to a single officer to monitor. It says it has since changed this system so that all complaints staff receive notifications of complaint emails. It says it will also review this process to ensure it is working.
- It says, with regard to the apology letter that the ICI recommended, this had been prepared to send to Miss X, but not sent because of staff sickness. It says that, as soon as the Council became aware of this, it issued the apology along with a newsletter informing Miss X of the latest news about the development.
- It is clear there were issues with the development that caused Miss X distress. I have to assess whether the Council was at fault in the way it approached how it addressed those issues. The Council accepts it is important to maintain service-users confidence in the planning system and Miss X felt that it failed in that regard. She does not consider that it did enough.
- But taking enforcement action is discretionary. With regard to the Council’s approach to enforcement, it is clear that officers were alert to the need to consider enforcement measures. The development was subject to a number of complaints from residents even before Miss X moved into the area. And the Council did respond. It served two breach of condition notices on developers. It then monitored to check compliance with those notices. The evidence I have seen does not show it monitored on a regular basis, but it did gather enough evidence to enable it to consider prosecution.
- Further, from the records I have seen, it appears that the enforcement notices did have some effect. Complaints were reduced during this period. But the Council was alive to the fact that there were still problems at the site. The records show it considered prosecution.
- The records also show that officers took Miss X’s complaints seriously. It negotiated with developers to try and establish processes that would lesson the impact of the development on Miss X’s amenity.
- It took a decision not to continue with prosecution following changes to the way developers were to work. The Council was entitled to take an approach that was proportionate. Enforcement action is discretionary and so long as the Council has shown that it has considered whether it is expedient to take that approach or not, it is not at fault. I have looked at the records in detail and it is evident that the Council gave due consideration before reaching any decisions.
- But the Council is at fault for failings in communication with Miss X, following the ICI’s recommendations. It appears to have left management of complaints to one member of staff and this system did not work. However, it has, it says, taken steps to resolve this issue.
- Although we are sympathetic to the difficulties of managing systems when there is staff sickness, the failure to send Miss X’s apology letter would have been picked up if Miss X’s continued complaints correspondence had been addressed.
- Its failure to comply with the recommendations in time is fault. It did not strengthen Miss X’s confidence in the Council’s hold on the situation when it failed to respond to her after a complaint had been upheld against it. The Council has partly remedied this fault by issuing the apology letter to Miss X. But I have also made a recommendation to remedy the time and trouble she had to go through in order for the Council to comply with the recommendations set by the ICI.
- Within one month of the final decision, the Council will:
- send Miss X an apology for its failings in communication and failure to implement the recommendations made by the ICI, and
- pay Miss X the sum of £150 to acknowledge the time and trouble Miss X was caused by its failure to communicate with her as promised.
- I have found the Council at fault for its failings in communication with Mrs X. It has agreed to my recommendations and I have completed my investigation.
Parts of the complaint that I did not investigate
I have not investigated the part of the complaint set out in para 1(c). The Ombudsman does not ordinarily investigate decisions taken by Councils that were made many years before the complaint was made.
Investigator's decision on behalf of the Ombudsman