Summary: Mrs X complained the Council failed to address issues caused by the construction of a new leisure centre near her home. We found, overall, the Council took proportionate action to address the concerns being raised. We found there was no failure to take planning enforcement action by the Council. We found there was a failure to follow up about potential damage caused by paint over-spraying. This was fault. We recommended the Council took action to address this.

The complaint

1. Mrs X complains the Council failed to properly communicate with them about the development of a new council facility near to their home. She complains the Council did not ensure the developers used the correct entrance, or that they maintained appropriate road cleaning. She complains that not enough was done to supress dust. She also complained that weekend work was disruptive and they were not told when this would occur as the Council promised to do when the development began. Mrs X complained that although some action was taken, this was often short-lived, so she had to continue to make reports to ensure agreed actions were maintained and the development as a whole was very disruptive.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I spoke to Mrs X and considered the information she provided. I asked the Council for information and considered its response to the complaint.
5. Mrs 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

Background

6. In June 2020 the Council granted planning permission for a new leisure centre near to Mrs X’s property. The Council was also the applicant.
7. Conditions attached to the permission required the developer to submit a Construction Management Plan (CMP) and to adhere to it for the duration of the construction works. The Council approved the details of the CMP in January 2021.
8. The case officer’s report when signing off the CMP acknowledged that the entrance to the site on [Mrs X’s road] could cause conflict with residents. (I have referred to this as Gate B in this statement). Works were needed to prepare a gate on another road (Gate A). The report stated when the Gate A was available Gate B would be locked at all times unless needed for emergency vehicle access. However, there would be occasions when Gate B needed to be used. These would be limited and the developer would communicate with local residents about it. It gave specific examples of large equipment such as cranes, concrete pumps and piling rigs that would not be able to access the site via Gate A. The report noted that some use of Gate B was necessary and given the intention to communicate with residents about this, it was acceptable.
9. The CMP required:
• Entrances and Site Access: At the beginning of the project, access would be from Gate B while works were done to Gate A. Gate A would be the primary access, but there would need to be occasional deliveries via Gate B. Deliveries would be booked to make it clear which gate should be used.
• Public Road cleanliness: The developer would monitor the condition of the public road daily and wheel washing would be carried out prior to vehicles leaving site.
• Working Hours: These would be Monday to Friday 7am to 5pm, Saturday 8am to 1pm and no work on Sundays. Deliveries were permitted Monday to Friday 9:30am to 16:30pm.
• Dust and noise: Control measures would be implemented to reduce noise and to control dust. The CMP listed these.

What Happened

10. The Council told us that it employed a project manager who also acted as their agent for project. The project manager attended the site fortnightly.
11. The Council also employed a clerk of works to monitor the development and construction methods. They generally visited fortnightly and sent the Council regular reports. In addition, the Council’s senior project lead officer attended the site throughout the first phase of works, generally weekly. Any issues identified were raised with the developers to put right.

Use of Gates A & B

12. In or around June 2021 Mrs X complained that deliveries were being made to Gate B that should be using Gate A. The developer explained that deliveries were arranged for Gate A but on occasions they would arrive at Gate B contrary to instructions and this could not always be controlled.
13. There is evidence that the developer wrote to residents to alert them to the intended used of Gate B for large plant and concrete pours in and after July. In further correspondence Mrs X acknowledged this but stated that use of Gate B was constant. The developer’s response to the Council stated it had used Gate B sparingly, as required by the CMP. It noted residents had been given notice of the intention to use the gate for the concrete pours that were planned. The Council apologised to Mrs X that Gate B had been used wrongly in some instances and it said it had reiterated the need to use the correct entrance for deliveries.
14. Over several days in August 2021, large concrete pours continued into the early hours of the morning. Mrs X raised the issue as the developer took hours longer to complete the work than had been stated in the letter to residents. The concrete deliveries were via Gate B. The developer explained that it was difficult to plan with conviction because of supply shortages and updated Mrs X about likely timeframes for completing the work.

Road and Pavement Cleanliness

15. Mrs X raised the issue of mud on the road and pavements from June 2021.
16. The developer explained they had booked a roadsweeper to address it on one occasion, but it had not arrived. It confirmed that wheel washing was being carried out but it acknowledged this only got the worst mud off and other cleaning was needed.
17. Mrs X complained further about the mud on the road in October, November and December 2021. In December the developer offered to meet residents to discuss this and any other issues they had. Mrs X raised the issue of mud on the road as an issue in January 2022.
18. The Council told us it contacted the contractor when it received complaints about the cleanliness of the road, and asked them to increase the frequency of road sweeping and jet washing.
19. In February 2022, the Council responded to a complaint from Mrs X explaining the action it had taken. It stated the issue was being escalated to a director of the development company.
20. The Council’s agent wrote to the developer in February setting out concern about the state of the road and pavements. It stated the standard of highway cleaning was unacceptable and was causing complaints. The situation had been raised numerous times but improvements had not lasted. The Council stated the developer was not meeting its contractual obligations. It told the developer to address the issue or the Council would employ a contractor and charge them.
21. In May 2022 Mrs X stated the road was still very dirty and she asked the Council to address this.
22. The Council provided evidence that it carried out frequent checks on the cleanliness of the road between January 2022 and July 2022. In response to Mrs X’s complaint from May it explained that it had monitored the site weekly. It also responded to other issues. The Council apologised for overall disruption while construction had been ongoing. The Council noted wheel washing facilities had been provided at both entrances to the site.

Construction Dust

23. Mrs X raised that dust was also an issue in May 2021. The developer apologised and explained the weather and nature of the work at that time (piling) could create dust, even with dust suppression being employed. It stated an extra labourer had been employed to damp down. Mrs X raised this again in April 2022 when she reported dust was becoming worse.
24. The Council’s response to Mrs X’s complaint acknowledged the problem of dust while construction work took place. However, it stated it was content the developer had taken reasonable steps to damp down and control dust where possible. It stated officers would discuss this further with the developer.

Working Hours

25. The Council told us the developer worked within the agreed hours of construction, aside from a period towards the end of the first phase of construction. At this point, the developer sought a temporary extension of operating hours from the planning department which was approved. I understand this was to carry out concrete pours and concrete polishing which was time critical.
26. Mrs X complained that the developers were working on a Saturday morning on a number of occasions during the build. In a response to Mrs X in July 2021, the developer stated they had worked around 12 Saturdays in the first 27 weeks of construction. They stated Saturday working was generally for a specific purpose and they did not intend to work every Saturday. The CMP allowed working on Saturdays between 8am and 1pm.

Other Issues

27. Relatively early in the construction process some paint spraying took place. It seems the wind carried paint outside the construction site and this affected a number of residents’ cars.
28. Mrs X confirmed the developer had paid for their cars to be professionally cleaned, but she was told someone would follow up about pain spots on their house and this had not happened.
29. The Council provided evidence of its agent seeking clarity from the developer that it had responded to the paint overspray issue and paid for affected cars to be professionally cleaned. The agent also questioned whether the developer had been proactive in establishing how many other cars may have been damaged and whether some houses may have been affected. e.g. spots of pain on window frames. The Council did not share the developer’s response to this.
30. Mrs X told us there were paint spots on their house. The Council should have followed up to ensure any damage to Mrs X’s house was resolved. Based on the information I have seen, this does not appear to have happened.

Communication

31. The Council provided evidence that the contact details of the developer were made available to residents and that letters had been sent to residents about various stages of the work, and use of Gate B. It also held meetings for residents at the outset and during construction and sent newsletters.
32. The Council noted since the complaint we are investigating, Mrs X has raised new issues about noise from the operation of the new leisure centre. These are separate issues to those raised in the complaint about issues during construction that we are investigating.

Was there fault by the Council

33. The Council was both the client for the development and the local planning authority and responsible for environmental health issues. Our role is not to determine if there was disruption to local residents during construction. We consider if there was fault by the Council. Our focus is whether the Council took action or responded appropriately when issues were raised about the actions or conduct of the developer carrying out construction on its behalf.
34. The Council was satisfied that Gate A remained the main gate for the development site throughout the construction process. The planning permission allowed Gate B to be used for part of the process due to the logistics of the site. There is evidence that the developer sent letters to inform residents when these key uses of Gate B would take place. Mrs X explained that, during construction, Gate B was also used for deliveries, at times, that should have been taken through Gate A. She explained this caused some disruption. The developer confirmed that on occasions deliveries did arrive at the wrong gate, However, this was often out of its control. Overall, I am satisfied that there were no grounds for the Council to take any formal action against the developer regarding the use of Gate B or any breach of the requirements of the CMP in this respect.
35. Mrs X also raised issues with dust. However, the CMP contained appropriate measures to damp down and prevent dust where possible. The developer would be unable to completely prevent dust from the site. Based on the correspondence I have seen, the developer took action to prevent dust and responded to complaints appropriately.
36. There was an issue with mud on the pavement and the road. Mrs X had to raise this a number of times because it was a recurring problem. However, I found the Council took appropriate action to try to remedy and improve the issue. It raised the issue and arranged for an increase in cleaning by the developer. When this did not address the matter, it escalated it further and it began very regular inspections. While I understand it was frustrating for Mrs X that the issue reoccurred, I did not find fault in the way the Council addressed the issue. The actions it took were proportionate and it clearly wished to prevent complaints and disruption. While I appreciate the Council’s actions did not achieve lasting results from the outset, the Council did address the problems Mrs X was raising and did what it could to hold the developer to its contractual and planning obligations. It was not fault that the Council decided against taking planning enforcement action, in my view.
37. While the Council has evidently followed up with the developer to ensure cars affected by the paint spraying exercise have been cleaned, it appears there has been no follow up to assess whether Mrs X’s house was also affected and required clearing. Mrs X expected this to follow on from the cleaning of the cars. This was fault and I have recommended the Council contacts Mrs X, assesses the situation, and takes appropriate action to clean the property. Alternatively, the Council may arrange for the developer to do so.
38. The CMP set out the hours during which construction work could take place. This allowed Saturday working between 8am and 1pm. This is not uncommon. While I note Mrs X says she was given to expect prior communication of Saturday working, this was not a requirement of the planning permission. As Saturday working was permitted, I found there were no grounds for the Council to stop or curtail this.

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Agreed action

39. Within five weeks of my final decision, the Council, or the developer on its behalf, should follow up with Mrs X to assess whether the paint overspray issue also affected their house. If the house has been affected, the Council should arrange for the damage to be rectified.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. There was fault by the Council. Subject to the Council completing the recommended actions I have completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman