Summary: Mr X complained about the Council’s decisions relating to development on land near his home. We ended our investigation because it is unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome.

The complaint

1. Mr X complained about the Council’s decision relating to development on land near his home. Mr X said the Council:
• ignored his and other residents’ concerns about the proposed development; and
• failed to take enforcement action when he reported breaches of planning condition to planning enforcement officers.
2. Mr X said his outlook, peace and privacy has been lost, both from the development that was approved and construction work to build it.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we have no evidence to show that any alleged fault has caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I have also read a recent update to Mr X sent by a planning enforcement officer.
5. I gave Mr 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.

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What I found

Planning law and guidance

6. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can be made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.
7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. 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.
12. While construction management conditions may help lessen the 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.
13. Where councils consider there is serious harm caused by noise, vibration or dust pollution from work on building sites, a notice to stop or control a nuisance can be served using powers under the Control of Pollution Act 1974.
14. 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.

What happened

15. The Council received an outline planning application for a business development on land near Mr X’s home. The land was designated for industrial and business use on the local plan. The application was approved subject to conditions.
16. The applicant submitted a reserved matters application with further details relating to layout, building design and access.
17. The Council’s planning case officer report included:
• a description of the proposal and site;
• a summary of comments from neighbours and other consultees;
• details of relevant planning policy and guidance;
• an appraisal of the main planning considerations, including design issues, landscape and ecology, impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
18. The Council approved the application subject to planning conditions, including one that required a construction management plan.
19. After development works began, Mr X complained to the Council about breaches of condition, including highway access and construction management issues.
20. The Council responded to Mr X’s complaint, and said:
• it had considered the application properly, had taken account of his objections and its decision and documents it relied on were available on its website;
• issues relating to planning conditions had been considered and addressed. The Council had either found no evidence of a breach, but where it had found breaches, the developer was working with it to resolve the issues.
21. Mr X recently received an update from a planning enforcement officer. The officer explained the outcome of a recent public liaison committee, where the developer had met with local residents to address their concerns. The meeting had discussed a range of issues, including deliveries of materials, mud on the road, the condition of the road surface, dust from construction works and security lights/CCTV issues.
22. The planning enforcement officers said that where breaches of condition were found, the developer was working with the Council to resolve them. Because of this, no further enforcement action was considered necessary.
23. In response to an earlier draft of this decision, Mr X sent me a large amount of information, which included details of his complaints, the Council’s response, photographs taken from a security camera looking towards the site and records of sound recordings.
24. Photos from these cameras are dated and show works from cleared land through to completed structures. The dates on the photos show construction work took place over a relatively short space of time.

My findings

25. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
26. Before we begin or continue our investigations, we consider two linked questions, which are:
• is it likely there was fault?
• is it likely any fault caused a significant injustice?
27. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
28. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
29. I should not investigate this complaint further, and my reasons are as follows:
• Before it made its decision on the planning application, the Council considered the plans, planning polices, and comments from the public and other consultees. This is the process we would expect, and further investigation is unlikely to result in a finding of fault in the decision-making process.
• Mr X alleged breaches of planning condition, but before the Council decided not to take formal enforcement action, it considered his allegations, its planning enforcement powers and the outcome of its enquiries. Where it found evidence of breaches, it considered whether enforcement action was proportionate and justified. This is the process we would expect for planning enforcement decisions, and further investigation is unlikely to result in a finding of fault.
• Though I do not doubt the impact on Mr X’s life from construction works was significant, it was temporary. If construction work had been delayed by planning enforcement action, it may not have been so intense, but it would likely have gone on for longer. Before the application was received, the land was marked for business and industrial development on the local plan, and so a development of this kind was always likely to happen. Because of this, even if I investigated further and found some evidence of fault, it is unlikely to result in a remedy or lead to a different outcome for Mr X or others.

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Final decision

30. I ended my investigation as it was unlikely to result in a finding of fault, a recommendation for a remedy or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman