Bristol City Council (21 012 544)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 05 May 2022

The Ombudsman's final decision:

Summary: Mr X complained, on behalf of Mrs Q, about how the Council granted planning permission for a development near her home. There was no fault in how the Council decided the planning application, approved the construction management plan or investigated the developer’s compliance with the plan.

The complaint

  1. Mr X complained, on behalf of Mrs Q, about how the Council granted planning permission for a development near her home. He said the Council failed to:
    • realise the original plans did not show the impact construction would have on the road on which Mrs Q lives;
    • ensure the developer minimised disruption during the building works; and
    • properly investigate reports of breaches of the planning permission and noise from the construction site.
  2. As a result, Mr X said Mrs Q did not have a proper opportunity to object to the planning permission, and she suffered inconvenience and stress during the construction works which were very close to her home. He wanted the Council to apologise and pay a financial remedy to recognise the impact on Mrs Q.

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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. 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)
  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

  1. I considered:
    • the information Mr X provided and discussed the complaint with him;
    • the Council’s comments on the complaint and the supporting information it provided; and
    • information, including plans and reports, from the Council’s planning files.
  2. Mr X, Mrs Q and the Council had an opportunity to comment on my draft decision. I considered the comments I received before making a final decision.

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What I found

Planning applications

  1. Planning permission is required for the development of land (including its material change of use) and may be granted subject to condition on the development or use. Conditions might require developers to apply for approval of certain matters linked to the permission or conditions.
  2. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
  3. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise. Temporary inconvenience during development is not a material consideration when deciding whether to grant planning permission.
  4. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, local planning authorities have no control over these matters. Permitted development incudes permission to use temporary buildings and structures and machinery required during construction.
  5. Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies. However, councils do not have to publicise applications for approval or changes to conditions.

Planning enforcement

  1. 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.
  2. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
  3. 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.
  4. While construction management conditions may help lessen the harmful 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.

What happened

  1. The Council granted planning permission for the demolition and replacement of a property near Mrs Q’s home in 2020. The application was considered by the Council’s planning committee which granted the permission subject to conditions. One of these conditions was that the development could only begin once the developer had submitted an acceptable construction management plan.
  2. The Council approved the developer’s construction management plan in early 2021. This application was considered and approved by one of the Council’s planning officers. The plan said the developer had to take reasonable steps to minimise disruption caused by the building works and provide proper notices and signage when it closed the road.
  3. The developer also obtained a temporary traffic regulation order to allow it to close part of the road next to the site during the construction. However, the developer decided not to close the road for the whole of the construction period. Instead, it decided to close the road temporarily when necessary.
  4. Mr X complained to the Council on behalf of several residents near the site about the planning permission. He told the Council:
    • the plans submitted by the developers with the original planning application did not include the areas of the pavement and road next to the site which it later proposed to use for construction equipment. He said that, because of this, the Council should have made the developer reapply for planning permission;
    • residents were not consulted about the construction management plan and only found out about this because the developer wrote to them shortly before the decision;
    • residents could not submit objections to the proposed construction management plan through the Council’s website, so had to email the Council’s planning department instead; and
    • the developer had not complied with the construction management plan, particularly around providing proper notice or signage for temporary road closures or arranging for deliveries to be staggered.
  5. After Mr X’s complaint, the Council opened several planning enforcement investigations, including into compliance with the construction management plan. Its environmental and highways team also investigated how the developer was managing the road closures.
  6. The Council visited the construction site in June 2021, spoke to site staff and took photographs. Following this visit, the Council decided that, since the developer had agreed to make improvements to how it followed the construction management plan, no formal enforcement action was needed.

My findings

  1. It is not our role to decide whether the Council should have granted planning permission or taken enforcement action; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.

Planning decision

  1. Government guidance says developers should include on plans submitted for planning applications all land needed to carry out the development. However, this guidance is aimed at planning applicants and does not place any additional obligations on planning decision makers.
  2. The evidence shows the Council considered the plans submitted by the developers when making its decision. There is nothing to suggest the Council was aware, before approving the application, that the plans did not include the pavement area which the developer ultimately needed for construction work.
  3. The Council approved the planning application through its development control (planning) committee. The records of the committee meeting show there was a detailed discussion about the application and committee members had ample opportunity to raise any concerns they had about the plans.
  4. Based on this evidence, I am satisfied there was no fault in how the Council considered the planning application.
  5. I am also satisfied that, had the plans shown the information Mr X says they should have, it would not have made a difference to the outcome of the planning application. Temporary disruption (such as traffic, noise or dust) during development is not a material planning consideration, so the Council could not have refused planning permission on those grounds or based on any related objections from residents. When approving the application, the Council addressed the issue of access and inconvenience during the construction period by requiring the developer to produce a construction management plan for approval before beginning work.
  6. There is also a class of permitted development for temporary structures used during development. It is likely much of the use the developer made of the pavement next to the site was covered by this blanket permission, so it is unlikely the developer would have needed permission for the temporary structures or machinery during construction.

Construction management plan

  1. The law says councils must publicise and usually notify nearby residents of most planning applications. This does not apply to applications for approval of matters under conditions after planning permission has been granted, since these are not ‘planning applications’.
  2. Therefore, there was no fault in the Council not publicising or consulting about the developer’s application for approval of the construction management plan.
  3. In any case, some nearby residents were aware of the application since the developer notified them. Mr X said several residents shared their views about the management plan directly with the Council.

Planning and highways enforcement

  1. The evidence from the Council shows that it investigated resident’s concerns about the developer’s compliance with the construction management plan, noise and traffic problems. It visited the site, inspected the measures in place and discussed issues with site staff.
  2. Based on its investigations, the Council decided that although the developer had not always complied with the construction management plan, formal enforcement action was not justified. Instead, the Council advised the developer on how they should improve their compliance with the plan. This was a professional judgement the Council was entitled to make. I am satisfied there was no fault in how the Council investigated the reports and I cannot question the professional judgement of a decision made without fault.
  3. The disruption Mrs Q complained about was typical of the temporary inconvenience caused by building works. I appreciate Mrs Q found the works outside her home to be distressing. However, this inconvenience and distress was not caused by any fault on the part of the Council.

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Final decision

  1. I have completed my investigation. There was no fault in how the Council decided the planning application, approved the construction management plan or investigated reports of breaches of planning control.

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Investigator's decision on behalf of the Ombudsman

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