Summary: Mr X complains about the Council’s failure to respond to his requests for details of the Traffic Management Plan (TMP) for a development near his home. Mr X is concerned the Council is allowing the developer to use unsuitable routes such as the road where his property is located, causing him and his family unnecessary disturbance and distress. The Council was at fault in the way it handled Mr X’s concerns and has agreed to apologise and make a payment to him for the injustice caused. The Council will also review its procedure and remind relevant staff to act collaboratively when dealing with issues that need to be picked up by another team.

The complaint

1. The complainant, who I have called Mr X, complains about the Council’s failure to respond to his requests for information about the Traffic Management Plan (TMP) for a development near his home. Mr X says he has been asking the Council to provide details of the developer’s TMP since the planning application was published. Mr X is concerned the Council is allowing the developer to use routes for deliveries that do not permit heavy goods vehicles (HGVs) over 7.5 tonnes and is doing nothing to monitor or enforce any TMP that might be in place. He also complains the Council has failed to publish details of how the developer has met the planning condition relevant to traffic management to and from the development site, which means he and other members of the public do not know what is expected of the developer or when they be reporting breaches. Mr X says the excessive use of the road he lives on by HGVs has caused him and his family considerable disturbance and distress. He would like the Council to apologise for its lack of clear responses to him and for not properly monitoring access to the development site.

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The Ombudsman’s role and powers

2. 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)
3. 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 have spoken to Mr X and considered the information he has provided in support of his complaint.
5. I have considered the information the Council has provided in response to our enquiries.
6. Mr X 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

7. 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. Government guidance says:

“Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework July 2018, paragraph 58)

What happened

8. The Council granted planning permission for a small development of bungalows near Mr X’s home. A condition of the permission was to have a Construction Traffic Management Plan (CTMP) showing how traffic to and from the development site would be managed to ensure highway safety.
9. In December 2019, Mr X asked the Council for information about the CTMP for this development site. He received no response from the Council at this time.
10. Mr X raised concerns with the Council again at the end of July 2020 because several HGVs were using the road his property is located on. He said this road was unsuitable for HGVs and the repeated daily use was causing significant disturbance. He asked the Council again to provide details of the developer’s CTMP which had led to the Council discharging the planning condition in Spring 2020.
11. The Council responded and sent Mr X a copy of the information it received from the developer, which led to it discharging the planning condition. Mr X told the Council that most of the pages it had sent to him were blank. The Council said this must be due to an issue at Mr X’s end.
12. Mr X continued to raise concerns with the Council about the developer’s use of the road where he lives. In October 2020, the developer appeared to have provided Mr X with details of the routes vehicles should be taking to and from the development site. Mr X has raised this with the Council but received no responses beyond 12 October 2020.
13. Mr X brought his complaint to us in March 2021 as he remained dissatisfied with the Council’s handling.

Was there fault causing injustice?

14. In response to our enquiries, the Council has explained it does not generally publish information leading to the discharge of planning conditions on its website. It has also said that it cannot routinely monitor adherence to planning conditions unless it receives information from members of the public of potential planning breaches. These two statements seem at odds in Mr X’s complaint.
15. On the one hand, the Council says it does not publish details of planning condition discharges. On the other, it says it relies on intelligence from members of the public to take appropriate action where planning conditions may have been breached. I can appreciate that most planning condition discharges would not necessarily need monitoring and therefore require publication. However, it seems clear that if members of the public are unaware of the agreement reached between the Council and the planning applicant, they would not be in a position to identify when a planning condition has been breached.
16. The Council also says it cannot enforce discharged planning conditions. This might be correct where the planning condition relates to a single act the planning applicant is expected to complete. It should not however apply where the nature of the condition is for there to be ongoing compliance throughout the course of the development. The Council’s approval of this planning condition states the approved CTMP, once implemented, should be reviewed and updated as necessary during the construction period. It seems clear from this the Council expected to keep some sort of watching brief over the developer’s compliance with its CTMP, otherwise the imposition of such a condition would be meaningless.
17. While there may not have been scope for the Council’s Planning Enforcement Team to act, it seems the Council’s Highways Team could have stepped in to enforce the CTMP if the developer was not complying with this. Two of the emails the Council sent to Mr X were copied to the Council’s Highways Development Control Team. This team does not however appear to have acted on the information nor did the Planning Team chase this up in Mr X’s case. The Council’s lack of joined up approach in responding to Mr X’s concerns was fault, which caused him significant inconvenience while he repeatedly raised issues with the Council to no avail. The Council also failed to ask Mr X for any evidence he might have to support his concerns, nor has it told him what type of information it would need to pursue any concerns further.
18. The Council’s failure to provide Mr X with information about the routes agreed with the developer also caused him avoidable frustration and inconvenience. The least the Council should have done when he told it he could not view the planning condition documents was to have either attempted to resend these to him in an alternative format or told him what the route was. Failure to do so, meant Mr X was put to further inconvenience by having to contact the developer directly for this information.
19. Lastly, the Council’s failure to respond to Mr X’s enquiry about the CTMP in December 2019, has caused him distress and inconvenience. Even when the Council did start communicating with Mr X more regularly from August 2020 onwards, it has still not taken any meaningful action to bring any closure or resolution (if appropriate) to these matters. This has meant Mr X and his family have suffered from the noise and disturbance of HGVs driving past his home for over a year, without knowing if this constituted a breach of the planning condition.

Council’s comments on our draft decision statement

20. In response to our draft decision, the Council has explained there are weight restrictions on the roads where the development and Mr X’s home are located. These restrictions are common on residential streets which are unsuitable for HGVs for example. Exceptions to the restrictions allow vehicles over the restricted weight to access properties and premises in these areas for delivery and collection purposes. As a result, the construction vehicles accessing the development are not in breach of the weight limits nor the planning condition relating to traffic management of the site.
21. It is disappointing the Council did not provide this information and its view to Mr X (and then us) sooner. This might have avoided the need for Mr X to continue pursuing an issue the Council did not consider to be a breach. The apology the Council has agreed to make to Mr X should include recognition of this.
22. Given the Council’s comments, I have removed a recommendation made in my draft decision. This asked for the Council’s Traffic Development Control Team contacting Mr X to obtain further information about his concerns about HGVs accessing the development site, which is no longer necessary.

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Agreed action

23. Within one month of the final decision, the Council agrees to:

• apologise to Mr X for not handling his concerns in a timely or meaningful way to date; and,
• pay £150 to Mr X for the avoidable time and trouble in raising his concerns with the Council for over a year without success.

24. Within three months of the final decision, the Council will:

• review its procedure for discharging planning conditions to ensure this allows members of the public to raise issues with the Council where a planning condition requires ongoing compliance; and,
• remind all relevant staff of the need to be proactive and provide a joined-up approach to concerns which cannot be dealt with by the team that received them.

25. The Council should provide us with evidence when the above recommendations have been completed.

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Final decision

26. I have completed my investigation and uphold Mr X’s complaint. Mr X has been caused an injustice by the Council’s handling of his concerns. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman