Summary: Mr X complained the Council had failed to enforce planning conditions on a development in his area. We ended our investigation as there was no fault in what had happened so far, but development works are ongoing. Mr X may come back to us if the situation worsens.

The complaint

1. Mr X complains the Council has failed to enforce planning conditions against a developer, who is building houses in his area.
2. Mr X says that construction traffic to the site does not always follow the route agreed under a planning condition. He also says that bat and bird boxes required under another condition have not been put in place.

Back to top

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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (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. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Back to top

How I considered this complaint

6. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including planning condition discharge details.
7. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of comments I received.

Back to top

What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. 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.
13. 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.
14. 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.
15. 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.

What happened

16. Mr X lives some distance from the site and accepts that he is not directly affected by the new houses that will be built on it. However, he does live on a road near the site that is sometimes used by construction traffic, though it is not on the route agreed with the Council. Mr X says he has complained to the Council when this happened, but it does not respond.
17. He is also concerned because bird and bat boxes required by planning condition have not been provided.
18. I asked the Council for information about its planning conditions. Details about the bird and bat boxes have been submitted and approved by the Council. The condition requires they are put up before the houses are occupied, which has not yet happened.
19. The Council has agreed a route for construction traffic, and it can act if it has information from the public to show persistent breach of this condition. Mr X says he does not wish to pursue this part of his complaint further at this time.

My findings

20. I have seen no evidence of fault in the way the Council has dealt with enforcement of planning conditions. The bird and bat box condition is not in breach and Mr X does not want to pursue a complaint about traffic movements at this moment.
21. In these circumstances, I will end my investigation, but Mr X may come back to us if problems with site traffic increase and he has reason to believe the Council is failing to properly enforce planning controls. Mr X should give the Council an opportunity to respond to any new complaint before coming to us.

Back to top

Final decision

22. I ended my investigation as there was no fault in what had happened so far, but development is ongoing. Mr X may come back to us if he is affected by any failure to properly enforce planning controls.

Back to top

Investigator's decision on behalf of the Ombudsman