Summary: There is no fault by the Council. The Council officers considered all the evidence from residents, professional consultees and the developer before making a decision to approve a Construction, Environmental and Management Plan. The Council made the decision not to take enforcement action before the Construction, Environmental and Management Plan was approved without fault.

The complaint

1. The complainant, who I shall call Mr X, complains the Council did not properly consider enforcement action when construction and traffic started before the Construction, Environmental and Management Plan (CEMP) for a large housing development was submitted or approved. Mr X complains the traffic affected the amenity of his home.
2. Mr X also complains there were delays deciding the application which included the CEMP. He says the Council has not published the CEMP on its website after it approved the application.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I read the papers put in by Mr X and discussed the complaint with him.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. Mr X and the organisation 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

Key facts

8. In 2020 the Council granted outline planning permission for over 200 houses on a site close to Mr X’s home. Mr X’s complaints relate to the use of the road he lives in as construction access for the development. His road will be used for residents of the new estate to access their homes.
9. The Council granted planning permission with conditions. Condition 24 said that ‘before commencing the development a construction environmental management plan (CEMP) should be approved’. Condition 26 said that ‘no development in each approved phase until details of access, storage, parking, loading/unloading of contractors plant, equipment, materials and vehicles are approved in writing’.
10. Work started on site in July 2022. The Council contacted the developer to say that it would issue a temporary stop notice if work did not stop before the pre-commencement conditions had been complied with. The Council told Mr X of this.
11. The developer emailed the Council to say it would stop work on 15 July 2022.
12. Work started on site again in September 2022. The Council emailed residents to say they considered it was acceptable for the developer to start work before the pre-commencement of work conditions were approved.
13. The email to Mr X said ‘developments of this scale can give rise to issues such as dust, noise and general disturbance at some point in the construction process. A condition relating to the provision of a CEMP was imposed on the outline consent. The applicant has supplied details, however the condition has not been discharged as part of the CEMP required a liaison group with a select group of local residents and ward members to be set up’.
14. The developer put in a planning application on 16 December 2022 to discharge a number of conditions, including conditions 24 and 26.
15. The planning officer consulted highways in January, February, March and April 2023. The developer proposed to use Mr X’s road as the ‘in’ road to the development, with traffic using road 2 to exit. In January highway officers said ‘officers consider the least impact to residents will be when the access in and out is by road 2. The developer could use an internal road rather than Mr X’s road’.
16. Highways were consulted again in February. They said ‘the access from Mr X’s road should be closed’. In response to the third consultation highways said ‘the reference to Mr X’s road as the main access in the CEMP is not acceptable. The use of road 2, a distributor road, has less impact on residential amenity than the use of Mr X’s road’.
17. There was a fourth consultation with highway officers in April 2023. The highway officers repeated that the use of Mr X’s road as access was not acceptable.
18. The planning officer emailed the agent on the 19 April 2023 asking for an extension of time to the application in order to allow for an internal meeting to take place.
19. The meeting took place on 28 April between planning and highway officers to discuss the CEMP. The main points of the meeting were:
• The planning officer had noted two road sweepers on site permanently, with Mr X’s road free of mud.
• The revised CEMP said a road in front of the primary school was to be avoided for construction traffic and construction deliveries would be limited to outside school drop off times.
• A community liaison group was in place that was required by the planning condition.
• Highway officers said that use of Mr X’s road was not a road safety issue, it was more about minimising the impact on residential amenity.
• Legal advice was that provided a planning condition is imposed which requires the submission of information relating to the details of construction routes, the Council had the ability to enforce against this.
• The planning team leader said that ‘if the Council were to refuse the CEMP and the use of Mr X’s road, then this would put pressure on the Enforcement team should the developer continue to use this route. The enforcement officer said this would be problematic and if officer’s took enforcement action, it would only result in a minimal financial penalty and was likely to be insufficient to deter the developer from using this route. It was therefore concluded that Mr X’s road as a construction route was not detrimental to highway or pedestrian safety. The only issue was the impact on the living conditions of neighbours’.
• The notes say ‘the only issue is whether officers consider that it is reasonable for the developer to access the site from Mr X’s road taking into account the impact on residential amenity. The planning team leader noted that other parcels of the development have construction traffic running past existing properties and so this site was no different. There were strict hours of construction to protect the amenity of residents and measures were in place to clean the roads’.
• The conclusion of the meeting was that ‘it would be unreasonable to refuse the CEMP based on the use of Mr X’s road as a construction route, purely based on the impact on residential amenity. And, if refused, it would be difficult to enforce against the developer if they continued to use the route’.
20. The Council granted planning permission to discharge conditions 24 and 26 on 30 June 2023.

Guidance and policies

21. Government guidance on enforcement and post-permission matters says ‘Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework (NPPF), in particular paragraph 59’.
22. Paragraph 59 of the NPPF says ‘effective enforcement is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate’.
23. The Council has an enforcement plan in its website. Section 2.3 says ‘it is important to note the local planning authority will not always take action when there is a breach of planning control. Government advice requires us to consider the expediency of doing so and the harm being caused by the breach. The advice is clear that action should not be taken solely to regularise a matter that is acceptable and would gain planning permission’.
24. Section 5.3 of the Council’s enforcement plan says ‘In dealing with planning enforcement matters and decisions to take action we will always have regard to:
• planning permissions and consents by ensuring that developments are largely in accordance with approved plans, conditions and obligations.
• protection of residential amenity from undue disturbance resulting from commercial activities and from inappropriate domestic and commercial buildings, for example, noise, dust, overshadowing, loss of outlook’.
25. Section 7 of the Council’s enforcement plan says ‘the government describes in its guidance circumstances when formal action might not be appropriate the service will have regard to this guidance. If a breach has occurred the service will not normally take formal action where, in the view of Enforcement Officers:
• there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area.
• development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development
• in their assessment, the local Council consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed.
26. Government guidance on the use of planning conditions says ‘Paragraph 55 of the National Planning Policy Framework makes clear that planning conditions should be kept to a minimum, and only used where they satisfy the following tests:
• necessary;
• relevant to planning;
• relevant to the development to be permitted;
• enforceable;
• precise; and
• reasonable in all other respects’.
27. The government guidance also says ‘care should be taken when considering using pre-commencement conditions that prevent any development authorised by the planning permission from beginning until the condition has been complied with. This includes conditions stating that ‘no development shall take place until…’ or ‘before any works starting on site. Such pre-commencement conditions should only be used where there is a clear justification, which is likely to mean that the requirements of the condition (including the timing of compliance) are so fundamental to the development permitted that it would otherwise be necessary to refuse the whole permission. A pre-commencement condition that does not meet the legal and policy tests may be found to be unlawful by the courts and therefore cannot be enforced by the local planning authority if it is breached. Development carried out without having complied with a pre-commencement condition would be unlawful and may be the subject of enforcement action’.
28. Councils often impose construction management planning conditions on approvals for major developments. Typically, these conditions aim to reduce the impact and disruption caused by:
• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and
• traffic from construction vehicles.
29. 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.
30. 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.

My analysis

31. There is no fault in the Council’s response to Mr X’s complaints in July 2022. The Council investigated, which resulted in the construction stopping.
32. Mr X complains the Council allowed work to start in September before agreeing the pre commencement conditions and about the length of time it took to approve conditions 24 and 26. Mr X says that during this time the noise and dirt on the road outside his home seriously affected his amenity.
33. I asked the Council how it made the decision to allow work to start before the pre-commencement conditions were approved. The Council said ‘the reason for the imposition of conditions 24 and 26 on the outline consent was “In the interests of the amenities of the surrounding area”. As such, the Council considered the impact upon the amenities of surrounding residents when the CEMP, required by Condition 24, and details of the construction facilities, required by Condition 26 were submitted. During consideration of these details, officers negotiated with the applicant to make improvements to the CEMP and construction facilities in order to help further mitigate the impact of the construction of the development on the living conditions of neighbours. The applicant also sought to work positively with the Council and in response made a number of changes to the construction route, hours of delivery to avoid the nearby school drop off and collect times. Furthermore, it is understood the applicant also met regularly with a Community Liaison Group to listen and address local concerns. The Council also carefully monitored the situation with numerous site inspections by Enforcement Officers to assess the changes and the impact on the amenities of local residents. Officers considered the applicant had put sufficient measures in place to help mitigate the impact of development, such as an increased number of frequency of road sweepers, wheel washing facilities on site, control over the hours of operation and the re-routing of HGVs. Based on the above changes, the Council considered the applicant had done enough to address concerns, and while the Council were negotiating with the applicant to make further changes, the situation was not considered to be significant as to warrant serving a Stop Notice. Indeed, the Council considered that it was not expedient to take enforcement action given the positive changes that had been made, and also mindful of the employment situation and what the implications may have been if work had ceased on what is an allocated housing site in the Council’s Development Plan. In summary, the level of harm caused to the amenities of the surrounding area were not considered sufficient as to warrant taking formal enforcement action’.
34. I asked the Council why officers approved the CEMP against the advice of highway officers. The Council said ‘the Council carefully considered the CEMP which involved the development being split over 4 separate development parcels. Officers within the Council’s Development Management Team discussed the details on a regular basis and in consultation with colleagues in Enforcement and Highways. The Council considered the CEMP and the likely impact upon the living conditions of residents, taking into account the selected routes for delivery, impact of construction activities in terms of noise, dust, mud of the roads and pavements and general disturbance. It must be noted that the reason for Condition No. 24 is “In the interests of the amenities of the surrounding area”.  It must therefore be stressed that the reason for the imposition of the CEMP is not highway safety related. In this regard, officers came to a balanced view that the routes proposed for construction and delivery access were reasonable and had regard to the advice provided to the applicant by the Health & Safety Executive. Officers came to a collaborative view that, following successful amendments made to the CEMP, it could be approved. This decision also had regard to the needs of the developer to develop the allocated housing site and employment generation’.
35. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether people disagree with the decision the organisation made.
36. Mr X complains the Council did not properly consider enforcement action when construction and traffic started before the Construction, Environmental and Management Plan (CEMP) for a large housing development was submitted or approved.
37. I have looked at all the information supplied by the Council and can find no fault in the decision making process. It is clear the Council considered the views of the highway officers, residents and developer before deciding not to take enforcement action in September 2022 and when approving the CEMP. Officers considered evidence from visiting the site and the amount of complaints also. I understand that Mr X objected to the use of his road as a construction access and that highways officers agreed there was impact on residential amenity. But, after getting legal advice, the planning officer decided that enforcement action would be difficult and that refusal of the CEMP would be unreasonable. This was a decision the Council was entitled to take, although I understand it is not a decision Mr X agrees with.
38. Mr X complains about the time it took to approve the CEMP. While I note his concerns, I can see no evidence of significant delay and the CEMP is now on the Council’s website.

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Final decision

39. I have completed my investigation of this complaint. This complaint is not upheld, as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman