Summary: Mrs X complained about the Council’s failure to protect her amenity when it allowed its land to be used for the processing, storage and export of building waste from demolition works related to a large public infrastructure project. We found the Council was at fault and should take action to remedy the injustice the fault has caused and prevent recurrence of similar fault.

The complaint

1. Mrs X said the Council failed to protect her amenities when it allowed the use of its land for storing waste and breaking up concrete for works related to a large public infrastructure project commissioned by a government agency.
2. Mrs X said she has been particularly affected by noise and dust from a council owned depot below her home and that her house was damaged by vibration.

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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. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. We can decide whether to start or discontinue an investigation into a complaint or any part of a complaint that is within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. If we are satisfied with an organisation’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

8. I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files, and its response to my enquiries. I interviewed officers who were involved in what happened.
9. I gave Mrs X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.
10. In this decision statement, I refer to another public body. Although I have not named it, I asked the Council to inform the other public body of my investigation and invite it, if it so wishes, to comment on the draft of this report.

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What I found

Planning law and guidance

11. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
12. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
13. Council planning departments often consult council environmental health (EH) officers about the impacts proposed construction works for developments might have, and EH officers sometimes recommend conditions to protect amenities. One factor that affects the decision whether there is need for planning conditions to control construction works, is whether the disturbance is likely to result in complaints.
14. Councils often impose construction management planning conditions on approvals for large 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.
15. Planning Authorities sometimes require developers to submit Environmental Impact Assessments (EIA) to deal with significant impacts on the environment. The EIA process is set out in regulations. If the planning authority decides an EIA is required for a project, they should limit the scope of the assessment to those aspects of the environment likely to be affected by the development. Councils screen applications to decide whether to require an EIA.
16. Even if an EIA is not required, a planning authority will still need to consider whether to use other powers to protect the environment, including the impacts development works will have on residential amenities.

Waste and planning control

17. Waste and minerals planning is controlled by waste planning authorities (councils). Waste planning covers a wide list of operations including recycling, processing, transfer and storage of waste materials. This council is responsible for local plan, waste and mineral planning matters.
18. Waste planning authorities are responsible for controlling the use of land in their areas for use and development relating to waste operations. Waste planning authorities should use local plan policies to allocate and control land used for waste. This happens after engaging with local communities to ensure that waste is properly controlled, and to reduce its impact on the environment and the amenities of those who live and work near sites used for waste operations.
19. There is also a central government regulatory authority for day-to-day waste management activities, and this controls waste operators through a licensing process.

Environmental health powers

20. Councils may decide not to use planning powers to control development works or use, if they consider powers under other legislation are more appropriate. Councils have powers under environmental protection legislation to control noise, vibration or dust pollution.
21. Councils may serve notice to stop or control a nuisance caused by work on building sites using powers under the Control of Pollution Act 1974.
22. Councils may serve a notice to abate a nuisance under the Environmental Protection Act 1990, if they can show that the nuisance causes one of the following:
• unreasonable and substantial interference with the use or enjoyment of a home or other premises; or
• injures health or be likely to injure health.
23. Environmental health powers are often applied after the event that caused nuisance/pollution. The standard of harm applied to control nuisance is set at a higher level than the protection of amenities by using planning controls.

Principles of good administrative practice

24. Our guidance on principles of good administrative practice can be found on our website at https://www.lgo.org.uk/. We use these principles as a benchmark for what we expect when we investigate. These include expecting councils to:
• follow the law and take the rights of those concerned into account;
• take account of all relevant considerations;
• respond flexibly and, where appropriate, coordinating a response with other service providers;
• deal with individuals helpfully, promptly and sensitively, taking account of their circumstances;
• keep proper and appropriate records;
• review policies and procedures regularly to ensure they are effective.

What happened

Mrs X’s complaint

25. Mrs X lives in a house on land above a river. Between her home and the river is a depot, owned by the Council.
26. The Council approved a series of planning applications from a government agency for a large public infrastructure project. The Council allowed contractors working for the government agency to use its depot to store waste building materials, to break up concrete using a large digger with a hydraulic chisel/jack hammer. The waste material was then emptied into skips that were stored on the part of the site nearest Mrs X’s home.
27. Mrs X said that prior to this, the Council’s land was seldom used. It had a disused office and empty storage building on it, and a large part of the site was overgrown with scrub. She said there were small piles of road salt and chippings, but no vehicles, plant or machinery stored on site. Mrs X said there had been no waste material processed, recycled or stored on the site until the Council allowed the land to be used as part of the flood defence scheme works.
28. Mrs X said that the Council told residents the work would take about 12 months to complete, but it had gone on for 5 years. She said she was affected by noise and vibration from the use of the site for 3 years, until the summer of 2021.
29. Mrs X complained to the Council who referred her to the government agency. Mrs X also complained to the Council’s environmental health department, but she got no answer on whether it had decided whether there was a statutory nuisance.
30. In the summer of 2020, Mrs X and about 5 other residents complained to the Council about what was happening. They were asked to return diary sheets of the noise, which she did, along with videos showing the work on site with the noise it was generating.
31. Mrs X said the noise continued and requests to the Council for consultation and suggestions for improvement from residents were ignored. Mrs X said there were no controls on working hours, with work starting as early as 6.30am and often ending at 7.30pm, though sometimes going on throughout the night. Mrs X asked the Council why it could not move noisy activities away from the boundary, but nothing changed.
32. Mrs X said it was difficult to work in or enjoy her home. Even with her windows shut, the noise still disturbed her, and that vibration caused damage to her home. The Council told her there were no planning controls in place on its depot, because of the urgent need for the works.
33. Mrs X said that while it was clearly an important and welcome scheme of improvements, the disturbance from construction work had a significant impact on the area. The contractor parking spilled out onto local roads, including those near her home.
34. Mrs X frequently raised complaints about noise from generators running throughout the night, and from alarms that were sounding for long periods through Christmas holidays when the site was unoccupied.

The Council’s response to my enquiries

35. The Council said it did not take action as a planning authority relating to use of the depot land below Mrs X, because no planning permission was required. This was because no change of use occurred when contractors used the depot to deal with waste from construction works.
36. It had no policy that required construction management controls and said it was able to rely on other powers, such as those in the environmental and pollution control Acts. It sometimes included construction management plans, but this was a matter for officer discretion.
37. No case officer reports for the applications included an assessment of how the construction works would impact on neighbouring amenity. However, one application included a construction management plan to protect the natural environment, including noise and vibration. This said no work should take place before 8am. Two applications included noise and vibration assessments. All applications were approved subject to planning conditions.
38. The Council said my further enquiries asking about consideration of impact on local residents and council policy on such large projects were outside the scope of Mrs X’s complaint, as this was just about the use of the depot below her home. The Council also said that it decided at the time operations on the depot started, that no planning permission was required. It also pointed out that it had screened the project scheme to decide whether an Environmental Impact Assessment (EIA), and decided it did not.
39. However, the Council provided no evidence to show that, before the work began, it had considered the impact the development scheme work might have on the amenities of residents. Nor did it provide evidence to show that before the depot was used for project works, it decided no planning control was necessary.
40. The Council said it took no action as a landowner, as no change of planning use had occurred. It said it took no action as a waste planning authority for the same reason. It added that planning policies are drafted to support assessment and determination of planning applications, and not with a view to informing decisions outside the remit of planning legislation.
41. Its environmental health officers visited the site 9 times but did not conclude a statutory nuisance had occurred. One of the dates included a description of the machines and vehicles on the site, the noises heard and a note to say there was no nuisance. The Council also sent a copy of an event log, with sounds heard during a 1-hour site visit on one day (undated). Written at the bottom of the event log, are decibel level records for 3 separate days, showing average, maximum, minimum and peak levels.
42. The Council disputed the depot site was overgrown, and sent a photo from 2012, a few years before work on the project began. The photo shows the site largely clear of shrubs and a large mound of material, presumably stored for use on the highway.

Officer interviews

43. I interviewed two officers to better understand the Council’s consideration of the case.
44. Officer A is a senior manager. Officer A said Mrs X contacted him about what was happening in the Spring of 2021. He discovered there was no legal agreement in place, as he would have expected, to control use of land by third parties. This meant the Council had to seek voluntary compliance from the contactors using the site, but ‘evidently this did not happen’.
45. Officer B works in the department that manages council land. He was contacted by the Council’s Highways Authority in 2016 to draw up a licence agreement to allow contractors to use the depot for work related to the development scheme. Officer B was then contacted by the contractors who said they did not need to sign a licence agreement, because their use of the depot was already covered by a framework agreement.
46. Officer B referred the contactor’s claim about the framework agreement to the Council’s legal department and the Highways Authority, but got no response. Officer B chased both departments again in July, August and November of 2016, but got no response. The Council has not been able to provide a copy of any framework agreement.
47. Officer B said that if a licence agreement had been drawn up to control the use of the site, it would include:
• the period of time the use could last for;
• details of the agreed use of the land;
• agreements as to which parts of the land could be used for different purposes, such as parking, storage, office cabins etc.
48. Officer B was told the site would be used as a storage compound and was not told that any work, like breaking up concrete, would take place on the site. Officer B was not sure this type of work would be acceptable in this location, but if so, he would expect operating hours and work zones to be restricted.
49. I asked to interview the legal officer who was involved in queries relating to the framework agreement, but they were unavailable.
50. As I understand it, the use of the site by contractors and the breaking up concrete ended in the summer of 2021.

My findings

The Council’s challenge to our investigation

51. The Council challenged the scope of my investigation because I asked questions about planning decisions relating to land other than the site below Mrs X’s home.
52. We have wide discretion on how and what to investigate. During our investigations, we frequently learn more about complaints and what has happened. We can widen the scope of our investigations to consider whether fault caused injustice to individuals who have not complained as well as to those that have. Also, we are not constrained by the specifics of the complaint. We can look at the wider actions of the Council in respect of potential fault and injustice to the individual complainant.

Failure to consider protecting amenities

53. The development scheme is a large project that has taken several years to complete. From its inception, development works were likely to cause a significant amount of disruption to those who live and work nearby. The development scheme brought significant public benefit. The public bodies involved would have wanted to act without undue delay. But this does not mean the temporary impacts likely to cause inconvenience, such as noise, dust, travel delay, frustration, annoyance, and disruption, could be overlooked.
54. I accept the Council carried out a screening process before deciding the applicant did not need to submit an EIA. However, most developments and projects do not require EIAs, but councils still assert controls to protect residential amenities and the wider environmental impacts.
55. Good administrative practice expects the Council to have thought about how these impacts might be managed. It should have considered how to deal with the consequences of construction works and waste processing, using its powers as a planning authority, environmental health authority, highways authority or landowner.
56. The Council did not consider how to best protect the public from the inevitable consequences of these large-scale development works. It missed the opportunity to protect the public. The Council said no overarching assessment was required. However, there was no evidence it considered these issues or exercised judgement when it decided the development scheme.
57. The Council said it did not apply waste planning control policies to the use of its land below Mrs X’s house because it was not required to do so, as no planning development or use had occurred.
58. However, there is no evidence that processing and storage of building waste took place on the depot before the contractors used the site. This type of use would generally require careful consideration, as it is likely to have significant impacts on surrounding areas. Waste developments would normally be considered against the Council’s waste planning policy, but this did not happen.
59. Councils cannot take formal enforcement against themselves, but they must apply the same standards of care to themselves as they would expect from other landowners.
60. If the Council had considered these matters at the time we would expect records showing contemporaneous evidence of assessments and decisions. There are none.

Environmental health involvement

61. We expect councils to keep adequate records to support their enforcement investigations and actions. Without adequate records, effective enforcement is unlikely and meaningful supervision and review of the Council’s response to an allegation is impossible.
62. The Council’s records of environmental health monitoring lack important details such as the name of the officer, location or time of visit.
63. The Council said was unable to access certain information held on the old system, as it no longer held a full software licence. It was able to provide more details of phone calls and site visits, but it was still an incomplete record. Some of these records did not include details of the outcome of decisions and agreed actions, officer details, locations and findings. There was no evidence to show a statutory nuisance was found, but there was also no record to show Mrs X was informed of this.

The Council’s control as a landowner

64. We expect councils to maintain control of the land they own and ensure it is not used in a way that causes undue disturbance, annoyance, damage or nuisance to their neighbours.
65. The Council’s policy was to carefully consider the use of its land by others and control use by licenses to control nuisance, annoyance and inconvenience to neighbours. This did not happen.

Finding of fault

66. Mrs X reported problems caused by contractors’ use of the Council’s land several times over several years. Since the first planning application was received and decided, the Council knew that a major project likely to have a significant impact on residents, like Mrs X, was going to happen. It had several opportunities to prepare and limit those impacts, but it failed to act. The Council’s lack of preparedness, flexibility in approach and failure to consider likely problems is fault. To avoid recurrence of the fault affecting others, I recommend service improvements.
67. Mrs X was most affected by use of the Council depot on land below her home. The Council did not control the use of its land as it would normally do so in situations like this. This is fault. To remedy the injustice caused to Mrs X, I recommend an apology and payment.
68. The Council’s environmental health officers visited the site and found no evidence of a statutory nuisance, but its records are incomplete, and Mrs X was not told the outcome of its investigations. This is fault. To remedy potential injustice in future, I recommend a service improvement.
69. The Council now says there was no change of use when its Highways Authority depot was used to break up concrete, and process and store building waste. It has not provided a full, clear explanation why this would have been its planning judgement. However, if such a planning judgement had been made at the time, there should be a record of it.
70. If such a decision was made, it is likely I would find fault in a failure to keep proper records. On balance of probabilities, after reviewing the information available, the most likely explanation is that these issues were simply not considered at the time.

Injustice to Mrs X

71. Where we find fault, we must consider whether it caused an injustice to the complainant or others who might be affected.
72. But for the fault I have found, the Council would have had the power to control the use of its land by contractors. Because it failed to control the land, it is likely Mrs X suffered disturbance from noise, dust, work operations outside normal hours.
73. Mrs X has sent me emails and videos that show some, but not all of the incidents she complained of. If the Council’s records were more complete, I might have been able to more accurately assess the injustice caused to Mrs X against the multipliers for disturbance to amenities found in our guidance on remedies that we publish on our website. However, I am satisfied the work and disturbance carried on for over a year. I will recommend a payment to recognise the injustice caused by this.
74. I will also recommend a time and trouble payment, as the Council could have accepted fault when Mrs X first complained to it. It had the information it needed to find and accept fault, and to consider an appropriate remedy, and it is disappointing it did not do so. Mrs X has put a great deal of effort and persistence into bringing her complaint to our attention and has had to show great patience while we have used our powers to reveal what has happened. I will recommend a sum for time and trouble higher than the limit set in our guidance on remedies.

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Agreed action

75. To remedy the injustice caused to Mrs X, the Council has agreed to:
1. apologise for the impact caused by the fault I have found have had on her; and
2. pay £1,000 for the injustice caused by the fault;
3. pay £500 for the time and trouble in bringing her complaint to our attention.
76. This part of the remedy will be carried out within 4 weeks from the date of my final decision.
77. To avoid recurrence of the faults I have found, the Council will:
1. consider what has happened in light of my findings and our standards of good administrative practice and decide whether its policies and working practices need to be updated;
2. ensure it keeps the information it needs to properly carry out its enforcement function, to respond to service reviews and quality monitoring. It should pay particular attention to practices relating to migrating information between document management systems.
78. The Council will carry out this part of its remedy within 3 months from the date of our final decision.

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Final decision

79. I found fault causing injustice to Mrs X and which has the potential to cause injustice to others. I completed my investigation because the Council accepted my findings and recommendations.

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Investigator's decision on behalf of the Ombudsman