Summary: Mrs X complained about the Council’s decision to approve a development near her home and inconvenience caused by construction works. The Council was not at fault.

The complaint

1. Mrs X complained about the Council’s decision to approve a development near her home, and inconvenience caused by the construction works. Specifically, she complained about:
1. the height, appearance and size of the new houses;
2. inconvenience caused by construction vehicles using the road she lives on;
3. work done on the highway, including new sewerage pipes that were not part of the original application; and
4. the builders being intimidating and causing damage to cars parked on her road.

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What I have investigated

2. I have investigated complaints a) to c). I have not investigated complaint d) and set out my reasons at the end of this decision statement.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)

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How I considered this complaint

4. I considered:
• the information Mrs X provided and spoke to her about her complaint;
• information available on the Council’s website and provided by the Council in response to my enquiry; and
• relevant law and guidance, as set out below.
5. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

6. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway; and
• the impact on neighbouring amenity.
8. Councils need to provide evidence to show they have considered the material planning considerations. This evidence is normally found in the case officer’s report and the planning decision notice.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Councils sometimes 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.

What happened

13. The developer applied to build new homes on a site near to where Mrs X lives. The planning officer considered the application and recommended approval. The decision to approve the application was made by the Council’s planning committee, following a visit to the site.
14. The planning officer’s report summarised the objections received from neighbours, including Mrs X. It set out the bodies it consulted and their views, including Kent County Council Highways, Southern water and Kent County Council Lead Flood Authority. It noted the site was allocated for residential development in the Local Plan and set out how the development complied with relevant Council policies.
15. The planning officer’s report considered the height and appearance of the new homes relative to properties in the surrounding area. It described the development as “distinctive” and explained why it was considered acceptable with reference to Council Policy CP4.
16. The report also considered the impact on neighbouring residents’ amenity. It explained the development was considered acceptable because there was no significant loss of outlook, no overbearing to a significantly harmful degree and the closest separation distance from a neighbouring property was 29 metres, which was well within the 21 metres the Council usually requires.
17. The Highways Authority had concerns about the parking scheme and the possibility that cars from the new development would spill over into nearby roads. This was addressed, during the application process, by changes to the plans and the reduction of the number of houses to be built. The Highways Authority was then satisfied with the proposal, subject to relevant planning conditions it proposed.
18. Both the Lead Flood Authority and water undertaker for the area were consulted. They had concerns about drainage and sewerage. This issue was addressed by providing a new sewer, to be constructed in the road where Mrs X lives and by relevant planning conditions. This included a planning condition requiring the developer to submit plans relating to sewerage and surface water disposal to the Council for approval. The Council said the consultees considered those plans and agreed they were acceptable.
19. The planning officer’s report does not explain how the Council considered the impact of construction vehicles using the road where Mrs X lives to access the site. However, Mrs X has confirmed there was no other possible access except going through the grounds of a nearby school. I note the Council did include a planning condition to limit the hours of work whilst the development was under construction.

My findings

20. The records show the Council considered the visual appearance of the new houses, including their height and decided the proposals were acceptable. It also considered the impact on neighbouring properties and decided that was acceptable. There is no fault in the way it considered these. I cannot comment on a decision made without fault, however much Mrs X disagrees with it.
21. The records seen do not show how the Council considered the impact on neighbours of construction traffic using the road where Mrs X lives to access the site. However, I am satisfied there was no alternative route, and note the Council included a planning condition to limit the hours of work. The Council was not at fault.
22. In relation to works on the highway, these were required to address concerns about sewerage and surface water. The Council included a planning condition requiring the developer to provide details of its plans, and it consulted with appropriate bodies about this. This was a decision the Council was entitled to take and so it was not at fault.

Complaints handling

23. Mrs X hand delivered a letter of complaint to the Council offices in late March. This was during the COVID-19 pandemic when government guidance said people should work at home if they could and most offices were closed. The letter was not passed to the relevant team to respond until early June 2020. The Council responded to the points she made in late July 2020. Mrs X wrote again in early August and the Council responded in mid August 2020.

My findings

24. Although there was a delay in responding to the initial complaint, I do not consider this amounts to fault because offices were closed due to the COVID-19 pandemic at the relevant time and therefore staff were not able to collect and deal with post delivered to office premises, as opposed to being sent electronically. I am satisfied the Council responded appropriately to the issues she raised once it had seen her letter.

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Final decision

25. I have completed my investigation. I have not upheld this complaint.

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Parts of the complaint that I did not investigate

26. I did not investigate complaint d). We may only investigate the actions of the Council so cannot comment on the alleged behaviour of the builders.

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Investigator's decision on behalf of the Ombudsman