South Gloucestershire Council (20 005 147)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 22 Feb 2021

The Ombudsman's final decision:

Summary: Mr B complained that the Council failed to take appropriate action in response to his complaints about out of hours working on a nearby building site, which caused significant disturbance to him and his family. He also complained about the way it dealt with his complaints. We did not find fault in the actions of the Council.

The complaint

  1. Mr B complained that South Gloucestershire Council (the Council) failed to properly investigate his complaints about breaches of working hours by builders on a site near his property. It failed to respond promptly to him, consider his evidence or issue breach of condition notices without delay. He also complained that the formal complaint investigation was flawed and inadequate. He has been caused significant disturbance and frustration.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning enforcement

  1. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice (BCN). Failure to comply with a BCN is an offence that may be tried in the magistrates court.
  2. Government guidance says:

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…Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost- effective way of achieving a satisfactory and lasting remedy. 

What happened

  1. Planning permission granted for development on a site to the rear of Mr B’s property, contained a condition restricting the hours of delivery and working on site to between 7.30am and 6pm Monday to Friday, 8am to 1 pm on Saturday and no working on Sundays or bank holidays.
  2. Mr B first complained to the Council on 16 December 2019 about builders working on Sunday 15 December. The Council visited the site 19 December 2019 and spoke to the developer by telephone. The developer admitted to breaching working conditions on Sunday to get work done to the roof in preparation for new work to start on Monday. They said generally workers arrived at 7am but did not start work until 7.30 am as it was too dark. The Council advised the developer to ensure compliance with the condition.
  3. On 7 January 2020 the Council wrote to Mr B informing him of the visit and the advice given. It said it would not take any further action at this stage but would investigate if the problem recurred, with a view to taking formal enforcement action. It advised Mr B to keep a log of any further breaches.
  4. Mr B sent an email to the Council on 13 January 2020 disputing its findings and wanting further action and explanation. He said breaches of the working hours were happening all the time. On 19 January 2020 Mr B complained that he had not received a response to his email and there had been another breach of the condition.
  5. The Council wrote to him on 20 January 2020 confirming it would visit the site within the next ten days. It visited on 23 January 2020 and discussed the complaints with the developer. It said that the condition was being breached most weekends and it was considering issuing a BCN as it was the third time the condition had been breached since the previous visit.
  6. On 30 January 2020 Mr B made a further complaint about the lack of action and lack of responses to his emails and telephone calls. The Council responded the same day. It gave a summary of its action to date and said it would issue a BCN in the week commencing 3 February 2020. It said it would look into the other matters raised. It also apologised for the lack of response to his telephone calls and emails.
  7. Mr B sent an acknowledgement email and queried whether the development had been built in accordance with the planning permission. The Council further clarified that its response was an initial response to Mr B’s email of 13 January 2020. The Head of Service would be sending an additional response in due course.
  8. On 3 February 2020 Mr B sent an email saying that building work had taken place at the weekend in a different part of the site not covered by the condition.
  9. On 6 February 2020 the Council visited the site again and said it was issuing a BCN. It hand delivered the notice to the developer on 7 February 2020. This required the developer to comply with the condition by 6 March 2020.
  10. The Head of Service also responded to Mr B’s complaint. They said the notice had been issued and summarised the Council’s approach to notices as detailed in government guidance: the purpose was not to punish the perpetrator but to bring unauthorised activity under control. Hence in the first instance the Council had talked to the developer, giving them a chance to rectify the situation. When this was not successful, they issued a BCN. In respect of failing to respond to his emails and telephone call and emails they explained that the case officer had been on leave and messages were not picked up. They agreed the telephone call should have been returned and the member of staff had been spoken to.
  11. On 18 February 2020 Mr B emailed the Council thanking it for the response saying he had a better understanding of issues. But he had not received a response to his further queries about development on the other part of the site and he requested involvement from the environmental health team due to the noise.
  12. The Council responded again on 9 March 2020. It said the environmental health team had said the noise was unlikely to amount to a statutory nuisance but it would open a file and take a look. It provided contact details to report further details directly to the environmental health team. No answer yet re lack of condition except that condition is normally only put in place for larger developments. It said it had not got a specific answer to the issue of the lack of condition on the other part of the site but generally planning had advised that conditions limiting working hours were not generally placed on smaller developments such as extensions.
  13. Mr B reported further breaches by telephone on 11, 12 and 13 March 2020.
  14. On 18 March 2020 the Council carried out an early unannounced visit to the site and gave the developer a copy of the BCN. The developer admitted one breach on a Saturday, due to the specific circumstances of an employee. The Council did not note any working before 7.30 am. On 30 March 2020 the Council reviewed the case and noted it had not received any further reports of breaches.
  15. Mr B said his neighbour reported one more breach on 2 May 2020.He has provided photographs of a worker inside the property with a power tool. On 8 June 2020 the Council closed the case.
  16. On 10 June 2020 Mr B sent an email saying he had not heard anything from the Council since 19 February 2020. He said further breaches had occurred and he was shocked no court action had taken place. The Council replied the following day enclosing a copy of its email of 9 March 2020. It also said it had not received any further reports of breaches until Mr B’s recent email so prosecution had not been possible. Furthermore due to the pandemic courts were only accepting the most serious cases and the government had issued guidance allowing Councils to extend/not enforce working hours on building sites.
  17. Mr B sent a reply disputing he had not made any further reports of breaches: he had made telephone calls on three occasions in March. He also raised the issue about the footprint of the building and whether it had been built correctly as it appeared to be closer to his property.
  18. On 25 June 2020 Mr B sent a chaser email as he had not received a response.
  19. The Council replied on 3 July 2020. It said it had responded to Mr B’s reports of breaches by visiting unannounced on 18 March 2020 when it did not witness any breaches. Mr B had not submitted any log sheets or CCTV evidence, but he could do so now. He could also contact environmental health directly regarding noise issues.
  20. Mr B responded on 5 July 2020. He said the delay in responding to his email of 11 June 2020 was unacceptable. He questioned why the Council had sent two BCNs and said he had never been asked to provide evidence.
  21. The Council responded on 12 July 2020. It clarified that it did not serve two notices: the first one served in February allowed a period of time for the developer to comply, so 7 March was the earliest date it could take further action. Since the site visit of 18 March 2020 the Council had not received any further reports of breaches. It said Mr B could send in the video evidence and the Council would consider if it provided evidence to support court action but it could not give a guarantee. It said the Council had sent log sheets to Mr B on 7 January 2020.
  22. Mr B replied on 12 August 2020 disputing the Council had ever sent him log sheets. He said there had been no further breaches after 18 March 2020 and the work was now substantially finished. He was going to review his CCTV footage to find evidence to support his previous complaints of breaches.
  23. The following day the Council confirmed it was going to carry out a stage two complaint investigation. It sent its report to Mr B on 28 August 2020. It said the Council had responded appropriately to Mr B’s communications and acted correctly in respect of the breaches of the condition. It found delay in responding to one of Mr B’s emails in June and apologised for this.
  24. Mr B was very unhappy with the investigation report. The Council offered to escalate the complaint to a stage three panel, but Mr B declined and complained to the Ombudsman. Mr B said the regular breaches by the builders had a massive impact on his family life. Loud voices, swearing and singing occurred for 6 months disturbing their peace and tranquillity.

Analysis

  1. I cannot identify any fault in the way the Council dealt with Mr B’s complaints about breaches of working hours by the builders. The Council visited promptly following Mr B’s first complaint, notified him of the outcome and suggested he kept a log of further incidents.
  2. On receipt of further reports from him it visited again and issued a BCN. After receiving further complaints from Mr B in March it carried out an unannounced site visit. It did not receive any more specific complaints from Mr B about noise after March 2020. Mr B confirmed that the work was complete by August 2020.
  3. It also offered advice about contacting environmental health about the noise and explained why a similar condition had not been placed on a different permission.
  4. I understand Mr B experienced distress and disturbance from the noise, but I consider the Council acted proportionately and in accordance with government guidance in responding to the complaints. Once it had issued the BCN it could not take action before 7 March 2020. After this date it received three further reports of noise and dealt with this by an unannounced site visit on 18 March 2020.
  5. It did not receive or obtain any further evidence to support taking the matter to court. Mr B says he did not report any more breaches after March 2020 and confirmed the work was complete by August 2020. He says his neighbour reported one more breach on 2 May 2020. I do not consider this provided sufficient evidence of ongoing harm to justify further action.
  6. I do agree that the Council does not appear to have sent log sheets to Mr B, but it did advise him to keep a log of incidents and to contact environmental health directly which I consider reasonable.
  7. I consider the majority of the Council’s communication with Mr B was prompt and appropriate. It apologised for a delay in January and another in June, but I do not consider these delays were excessive or affected the action the Council took. It is unfortunate Mr B did not receive the email of 9 March 2020 but it was not due to fault by the Council and I note it responded very promptly when Mr B contacted the Council three months later.
  8. I cannot find fault with the stage two investigation. It provided a concise summary of the events which led to the complaint and reached a fair conclusion. The Council also offered a chance to progress to a stage three panel.

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Final decision

  1. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr B.

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Investigator's decision on behalf of the Ombudsman

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