Summary: X complained about the Council’s decisions not to take planning enforcement action against a developer who is building on land next to X’s home. We completed our investigation because we found no fault in the way the way the Council made its decisions.

The complaint

1. The person that complained to us will be referred to as X. X said they are disrupted by noise and dust from the building site next to their home.
2. X complained the Council has failed to enforce planning conditions to protect their amenity.

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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 complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning enforcement files, including delegated officer reports and advice from Environmental Health Officers.
6. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

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 over another’s land;
• 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 environmental protection legislation.
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.

What happened

15. X lives next to a site that is being developed. The Council’s planning approval included planning conditions, requiring:
• a construction management plan; and
• hours of work controls.
16. The Council received complaints about work on the site, some of which were from X. X complained about noise and dust, and breach of working hours limits.
17. The Council shared its enforcement records with me. Its records show that, before decisions were made on enforcement matters, the Council:
• considered what was alleged;
• was aware of its enforcement power; and
• carried out investigations, including site visits and collecting diary sheets.
18. The records show that after considering the allegations the Council decided to close its enforcement cases, and the main reasons were as follows:
• Though contractors arrived on site before the time limit, generally they began work after it. The condition only controls work times, not the presence of workers on site.
• On some visits, dust was found to be prominent, and the site manager agreed to do more to suppress it. The Council also took account of very dry weather, during which roads dried soon after they were dampened by water bowsers.
• Environmental health officers visited the site and found no noise nuisance.
• The location of materials near X’s home was for operational reasons and the materials were not accessed daily.

My findings

19. 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.
20. Before it made its decisions relating to planning enforcement matters, the Council took account of the allegations, its powers and the circumstances found on site during its investigations. The Council followed the decision-making process we expect and so I find no fault.

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Final decision

21. I found no fault in the way the Council made its planning enforcement decisions, and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman