Summary: We found fault by the Council on Mr Y’s complaint about it failing to ensure there was a Method of Construction Statement in place as required by planning consent. The Council delayed deciding the Statement submitted by three months. It failed to show it contacted the developer about some of the concerns Mr Y raised. It also failed to show what Parking Services and Highways did in response to his reports. The Council agreed to send a written apology for the failings, pay £150 to Mr Y for the injustice caused, act to ensure the delay cannot happen on other cases, and remind officers of the need to investigate concerns raised about construction works.

The complaint

1. Mr Y complained about the Council failing to:
1. ensure there was a Method of Construction Statement (MCS) in place for a neighbouring residential development as required by planning consent; and
2. act on his reports and take enforcement action against the developer for breaching planning conditions.
2. As a result, he suffered noise, disturbance, inconvenience, and blocked access to his garage during construction.

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The Ombudsman’s role and powers

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)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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What I have and have not investigated

6. I have not investigated any complaint Mr Y has against the Council about actions that happened after 7 October 2024. This is because this was the date the Council sent him its stage 2 response to his complaint and signposted him to us. The law says the Council must have the opportunity to consider and respond to a complaint. I consider it had this opportunity up to its stage 2 response. It has not had the opportunity to do so for any events Mr Y complained about that happened after this date.
7. References to events after October 2024 were made to put the complaint into context.

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How I considered this complaint

8. I considered evidence provided by Mr Y, the notes I made of our telephone conversations, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of the draft decision to Mr Y and the Council. I considered their responses.
9. Throughout, I refer to the ‘developer’ for ease of reference, but the term includes agent, architect, and project manager, for example.

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What I found

Planning enforcement

10. Councils can take enforcement action if they find planning rules have been breached. Councils should not take enforcement action just because there has been a breach of planning control.
11. 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.
12. As planning enforcement action is discretionary, councils may decide to take informal action or, not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
13. Government guidance says: “Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework December 2024, paragraph 60)

Council’s Planning Enforcement Plan

14. When it receives a valid report, the planning enforcement team will log the details and start an investigation. An initial desk top assessment is done to establish the facts of the enquiry and decide if a site inspection is needed. It does not automatically visit every site subject to an enquiry. It is only done if necessary to further investigate and establish facts.
15. The Council will investigate all alleged breaches of planning control by looking at the site, the planning history, and doing a site inspection if needed. If there are enforcement issues, it will try to settle disputes by coming to an agreement and without taking formal action, unless the matter is causing significant harm, or the parties have had previous involvement with the Council about other breaches of planning control.
16. It is not obliged to take enforcement action and only needs to do so when it is ‘expedient to do so'. A possible outcome of an investigation is to negotiate, as legally required, to avoid formal action. Another option includes formal action, such issuing a Breach of Condition Notice, for example.

What happened

17. Mr Y has lived in his flat for more than ten years. To the side of the block in which he lives is the development site. The Council received a planning application for the demolition of former buildings on it and the construction of a house.
18. The Council granted consent subject to conditions. One of the conditions required its approval of an MCS. The MCS needed to include details of parking and management of vehicles of site personnel, operatives and visitors, loading and unloading, storage of plant and materials, details of traffic management, and the provision of boundary hoarding. Its purpose was to provide documentation for all construction workers involved with the works setting out appropriate working methods and practices.
19. When works on the site began towards the end of 2023, Mr Y complained to the Council about the developer not complying with the condition about having an MCS. He made further reports to the Council about the development works causing him several problems including:

• blocking access to a garage he rented next to the site;
• obstructing the road and pavements outside, especially disabled bays;
• failing to build within allowed hours of construction;
• no safety hoarding/fencing round the site; and
• delivery lorries parking on double yellow lines.

20. Mr Y complained about the Council failing to act and take enforcement action on his reports. The Council denied his claims and explained the actions it took, which included serving a Breach of Condition Notice (Notice) on the developers in February 2024. This was because works continued on site despite the MCS remaining outstanding. This Notice is served by a council when there is a failure to comply with planning conditions. The aim is to require the remedying of the breach within a set period.
21. The Council also explained it arranged a meeting between Mr Y and the developer to resolve the problem of access to his garage. It was a matter for them to reach an agreement. When they could not, it refused to be involved further in what was a private matter.
22. The developer submitted a MCS which was approved. This said:

• Hoarding would be erected round the perimeter of the site to secure and contain demolition and construction works;
• All unloading would take place on the road to the front of the site, or on the garages forecourt with the agreement of owners/tenants. No agreement had been reached so all unloading and loading would be from the road;
• An application for a parking bay suspension to stop parking along the site front was needed to ensure the loading area was kept clear;
• Deliveries and waste collection would be programmed and staggered to reduce the potential for delay and congestion at the site; and
• The hours of operation were 8am-6pm Monday to Friday, 8am-1pm on Saturday, and no activity without the Council’s agreement on Sundays and Bank Holidays.

23. The evidence I have seen shows:

2023:

1. August: In response to his report, officers told Mr Y there was no enforcement breach as no work was in progress. The entrance to the garages would be closed off for the works to commence and the area outside the entrance was approved for use as a loading bay. This meant continued access to the garages could not be expected. The plan sent noted loading on site ‘subject to agreement with owners of garages’.
2. September: The Council replied to Mr Y’s councillor, explaining the consultation used for the initial planning application. No work had yet started on site, but fencing had been erected round it. The Council received the MCS on 28 September which was due to be decided on 23 November.
3. An officer visited the site after receiving a report from Mr Y but found no breach. The case was closed.
4. October: enabling works started (the very first step in construction). It involved site preparation work before the main construction started.
5. December: The Council received comments from its Transportation team on the MCS received.

2024:

6. January: Mr Y said he was threatened by a construction worker and verbally abused by another. He reported the contractors parking on the extended double yellow lines on the road outside. He also said works took place on Sundays from 9am. The Council told Mr Y it wrote to the developer about lack of compliance and would continue to monitor the site. Officers told him threats, abuse, parking, and noise were not planning issues. Parking and highway concerns were passed on to relevant departments.
7. Another planning enforcement case was opened about works starting on site. A few days later, an officer contacted the developer. The developer was reminded of the need to comply with conditions as it received reports of lorries and other machinery going up and down surrounding streets, causing chaos. The Council updated Mr Y explaining the case was open and under investigation. Officers took photographs showing the security fencing the developer erected round the site, copies of which I have seen. The Council was satisfied there was a secure metal security fence around the site from the start. The developer was asked to update it with appropriate solid panel hoarding and was called about discussing how to resolve outstanding conditions.
8. February: Mr Y reported works on the site going beyond 6pm over a couple of evenings. The Council told him the MCS was submitted by the developer months before but had yet to be decided. It was received before groundwork started. The Council could not enforce the breach of condition about the MCS as it may well go on to approve the one submitted. The developer told officers during a visit there was no electricity supply which was why they used a generator. Officers witnessed the generator in use and decided there was no significant noise concern. The Council decided to take no further enforcement action as the breach was not causing enough harm.
9. Records show the Council also contacted the developer about a report of its fence encroaching on a neighbouring property.
10. An email to Mr Y’s councillor said transport planners and a traffic management officer had commented on the MCS but, if it was not progressed by the end of the following week, and work continued, it was expected to move to formal action. It noted there were civil disputes around trespass, rights of way, access, compensation, and deliberately blocking access to the site between Mr Y and the developer. There was also a breach of two planning conditions.
11. The Council asked the developer about reports of blocked footpaths, for example, and asked how this was being addressed. An email from the Council to the developer contained a link to apply for a Traffic Management Order (TMO). At the end of the month, the developer sent an updated MCS.
12. Mr Y’s complaint was also referred to Highways and Environmental Health about obstruction of the highway and parking problems. An internal email stated an officer had not contacted Highways or Environmental Health before but would now do so. The officer had previously told Mr Y where to send these reports. I saw an email sent to these teams.
13. An enforcement manager and case officer met the developer on site to assess the current position. Following this, an email was sent to Mr Y explaining the Council would take no further action at that time as any breach caused insufficient harm. It would monitor the position. Parking agreed to increase surveillance in the area. An email to the developer raised the potential damage to trees as this was a conservation area. It reminded them to ensure all tree treatment areas were covered to prevent any further damage to roots. The Council reminded them to ensure all fencing was not out of place and on another property’s land.
14. Construction works stopped on 26 February. A few days later, the Council served the Notice. This was because of a breach of two planning conditions (failure to get approval of an MCS and appointment of suitably qualified chartered engineer). The developer had one month to comply.
15. March: Officers told Mr Y about the Notice and contacted Highways about the need for a possible skip licence. The developer sent an updated MCS. At the end of the month, construction work resumed as the Council approved the MCS. The delay with approving the MCS was due to getting comments from its Transportation team. When it got comments in December 2023, it then had to get further information about vehicle queuing and unloading, for example, from the developer. This meant the Council then received updated/revised versions of the MCS during February and then in March which it then approved. This was approved before the deadline set out in the Notice.
16. September: Mr Y was told officers referred his report about the contractors pouring waste down the drains to the environmental pollution team.
17. November: Officers told Mr Y about visiting the site and finding no obstruction to the garage. A Traffic Management Order (the Order) was to start the same month. This Order is also known as a Traffic Regulation Order. They are used to create parking spaces, vehicle restrictions, and temporary road closures, for example.
18. The Council told Mr Y the distance of the fencing to his garage was acceptable and the developer agreed to move it any time Mr Y needed access. He was told parking was for its Parking Services to deal with and site hoarding was erected around areas where it was claimed were subject to dust and noise as well as to protect trees. An offer for a meeting was made. Site hoarding opposite his garage was not appropriate as this may not be moveable and could create another obstruction and block views of the access. The developer agreed to erect appropriate hoarding.
19. December: The Council told Mr Y about the Order. This restricted parking on the road. The Council said the developer should have done this before starting works and accepted this had an impact on parking. Lack of parking was not a planning enforcement matter. It also accepted the hoarding did not cover the entire site, but it was in negotiations with the developer about it. It explained there were sometimes valid reasons why it could not be erected in a confined area like this site. The Council would not investigate his blocked access to the garage as neither Mr Y nor the developer could reach an agreement. This was a private matter for them to resolve.

My findings

24. When reaching my findings on this complaint, I took account of the fact that enforcement action is discretionary. The Council did not have to take formal action. It could decide, as indeed it did, to take an informal approach, which included negotiating with the developer, for example. When it decided to not take enforcement, this was because it considered an informal approach was an appropriate and proportionate response. It took enforcement action as noted when it decided to issue the Notice.
25. I found the following on this complaint:
1. The MCS: I am satisfied there was fault on this complaint. The Council accepted the developer sent the MCS in September 2023. It had until November to reach a decision on it but failed to do so. While it explained comments from Transportation meant further work in terms of asking the developer for extra information, I also note Transportation responded in December, a month after the decision was due anyway.
2. By February 2024, it was clear Transportation had given its comments to the planning team about the MCS and there had been contact between the Council and the developer about it. As no amended MCS was received, at the end of the month, the Council issued the Notice.
3. I am satisfied there was a three-month delay by the Council reaching a decision on the submitted MCS. It should have reached its decision by early November 2023 but failed to do so until March 2024. I have taken account of the fact Transportation had raised queries which would still had to be addressed anyway, which is why I reduced the overall delay from four to three months. I am also satisfied this delay caused some injustice to Mr Y. This caused him some uncertainty about what was happening and some frustration.
4. Working hours: Although I have seen contact between the Council and the developer, I saw nothing about the reports Mr Y made about the hours of work carried out on the site. While I appreciate the MCS, which would have the hours of operation set out, was not approved until March, the Council could have contacted the developer about Mr Y’s reports to remind it about what was acceptable and investigated his concerns. I consider this failure was fault and caused Mr Y an injustice. He suffered some distress as there was a lost opportunity for the Council to raise this with the developer.
5. Highways and Parking Services: Mr Y was told that parking and highway issues were for different departments, not the planning team. This was in January 2024. I have seen no evidence showing Mr Y contacted the other departments when told this by an officer.
6. In February, his reports were sent on to Highways and the Environmental teams by a planning officer. Although the Council said Parking services agreed to carry out more surveillance in the area, I have seen no evidence to support this claim nor evidence showing whether this extra surveillance was done. While the Council said the involvement of Highways led to the TMO, again, no evidence to support this claim was sent. I find fault on this complaint which caused Mr Y some injustice. He had the uncertainty about whether action was taken as claimed as well as experiencing some frustration.
7. The Traffic Management Order: The MCS stated the proposed arrangement would ‘require the suspension of parking bays to prohibit parking directly outside the site, or in the vicinity of the off street loading area.’
8. Although the MCS was approved in March 2024, the TMO did not start until November, eight months later. The Council told Mr Y the following month that the developer should have got this before work started. While the responsibility for applying for the TMO was the developer’s, I have seen nothing in the evidence received, apart from a link in an email sent in February, showing the Council pursued this with the developer further, particularly after receiving Mr Y’s reports. This was despite the MCS directly referring to the need to suspend parking outside the site. This was fault. It caused Mr Y an injustice as he had the frustration of chasing the Council about it.
9. Hoardings: I found no fault on this complaint. The MCS stated there would be a hoarding round the perimeter of the site to secure and contain the demolition and construction works. On balance, I am satisfied the evidence showed the Council pursuing this issue with the developer. While I have not seen evidence of hoarding around the entire site, there was a security fence, which the Council was satisfied with. On this basis, the Council decided not to pursue enforcement action. It reached this decision because there was no significant harm caused.
10. Obstruction of private garage: The Council initially explained to Mr Y that under the MCS, continued access to the garages could not be expected. This was because its entrance would be closed off for work to start and the area outside it was approved to be used as a loading bay. It was for Mr Y and the developer to reach an agreement about access during the works. If none could be reached, it was for Mr Y to seek legal advice about options available to him as this was a private matter.
11. Obstruction of pavements: I have seen evidence of the Council contacting the developer about obstructions when reported by Mr Y. On balance, I found no evidence of fault.
12. Waste down drains: The evidence showed Mr Y was told who to contact about this concern. I have seen no evidence he did so. I found no fault by the Council.

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Action

26. I considered our guidance on remedies.
27. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr Y a written apology for failing to: deal with the submitted MCS in September 2023 promptly; show it had contacted the developer about reports of inappropriate working hours on site and investigated the claims; show what Parking Services and Highways did when alerted to concerns.
2. Pay £150 to Mr Y for the injustice caused.
3. Review why it failed to deal with the initial MCS within the required timescale and act to ensure this cannot be repeated on future cases.
4. Remind relevant officers of the need to investigate concerns raised by neighbours about working hours on sites and put them to developers.
5. Remind relevant officers in Parking Services and Highways of the need to investigate concerns raised by neighbours about development sites.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

29. I found fault on Mr Y’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman