Summary: There was no fault by the Council. It is taking much longer than expected to complete work to reduce noise from the main road outside Mrs X’s house, and to discharge a condition relating to contaminated land risks. However, this is not due to fault by the Council. It has considered all the information it has gathered, and has made decisions based on this. There is no fault in the Council’s decision making and so there is no basis for me to criticise its decisions.

The complaint

1. Mrs X complains that the Council has failed to provide the remedy it agreed to in response to the Ombudsman's findings in 2022 in that:

• it has proposed secondary acoustic glazing rather than replacement windows based on advice which assumed the wrong type of existing windows in the property; and
• failed to provide the acoustic fencing a further year after the Ombudsman accepted its reasons for two years' delay from the original decision.

2. Mrs X also complains that the Council failed to enter the land on the contaminated land register; allowed occupation before discharging a planning condition dealing with contamination; and it has failed to deal properly with the remediation of the contaminated land.
3. Mrs X says that the Council’s failings have caused her extra injustice of prolonging the unacceptable noise disturbance that the original remedy was intended to resolve, as well as avoidable distress, time and trouble in pursuing the matter first with the Council then with the Ombudsman. Mrs X says the Council’s failings have also meant that she has been put at risk from contamination.

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The Ombudsman’s role and powers

4. 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)
5. 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(1), as amended)

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What I have and have not investigated

6. Ms X’s complaint involves ongoing issues and the Ombudsman investigated the earlier events in 2022 and 2024. I have investigated the Council’s actions from late 2024 to December 2025.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The law and guidance

9. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
10. 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.
11. 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.
12. 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)

What happened

Background

13. Mrs X brought a complaint to the Ombudsman in November 2021. She complained the Council failed to properly discharge conditions about noise and contamination on planning consent for the house she bought earlier that year. In July 2022, we found fault with the Council and the Council agreed to a list of actions. These included that the Council would:
• Draw up an action plan for the mitigation works already identified by both noise assessment reports (particularly glazing, ventilation, and measures for the garden), along with any further measures that might have since been recommended.
• Ensure the works in the action plan are done at no expense to Mrs X within six months. Should the developer/builder refuse to pay or arrange or contribute to the mitigation measures, the Council agrees to fund and do the mitigation measures instead. The Council should provide updates to Mrs X about progress every month.
14. During 2023 and 2024, Mrs X reported that the Council had not implemented the agreed remedy. An independent noise assessment had recommended that the Council install acoustic windows, and erect an acoustic fence between Mrs X’s home and the road. However, the Council had not done this.
15. We opened a new investigation in 2024. We found that the Council had not foreseen that the work would take longer than six months to implement when it agreed the remedy with us. We also found that the Council had worked continuously toward doing the mitigation work, but there had been unavoidable delay. This was because a number of assessments and feasibility discussions had to take place, as well as negotiations with Mrs X and other residents. We found that although the work was taking a long time, there was no fault by the Council.
16. As part of the 2021 complaint to the Ombudsman we investigated how the Council had made sure the site was decontaminated. The development is on the site of a former petrol station. The Council imposed a planning condition that before the developer started work, it must investigate contamination of the site and complete any decontamination work.
17. Mrs X complained that the Council had not taken enforcement action when the developer failed to do the survey or decontamination work before she moved in. In July 2022, we found that it was the developer’s responsibility to discharge the planning condition and they ran the risk of the planning permission being invalidated if they did not. However, we did not find fault with the Council failing to enforce any breach of the planning condition.

The current investigation

18. I cannot investigate any matters we have already decided. I am investigating the Council’s actions from late 2024 to December 2025.
19. Mrs X has complained that the Council still has not installed the acoustic glazing or erected the acoustic fence. She also complains that the Council failed to enforce the planning condition that required the developer to deal with risk of contamination, failed to enter the site on the contaminated land register, and failed to make sure the remediation work was done properly.

Windows

20. There was a specialist environmental survey and report in 2021. This measured the noise inside the house and said this was broadly in line with recommended levels, but maximum noise levels exceeded these. The report said that as the windows needed to be closed to achieve this, there would need to be some kind of mechanical ventilation of the house and this in itself, would make some noise. And so, there was a need for an overall reduction of noise entering the house from the road. It recommended secondary glazing to protect the residents from noise.
21. The Council asked the specialist to refine these proposals. At the beginning of 2024, acoustic specialists recommended secondary glazing would be better than acoustic glazing because it would not disturb the existing brickwork. They said this is important as external noise primarily intrudes at acoustic weak spots which would be likely if the whole casement is replaced (as with the installation of acoustic glazing).
22. Mrs X told the Council that she would prefer to have acoustic glazing as she considered this would be more effective than secondary glazing. The Council offered to pay for acoustic glazing to be installed according to Mrs X’s preference, if she signed an agreement that she would not make further complaints against the Council about noise from the road. Mrs X has now signed the agreement.
23. Mrs X says that the acoustic specialists’ advice to the Council in 2024 was flawed because it assumed she had a certain type of glazing, when in fact the developer had installed another type. Mrs X says that the type of glazing already installed has lower noise damping properties than the type used by the specialists in their assessment.
24. The Council referred to the 2021 assessment and explained that this did not assume any type of glazing was installed. Instead the specialists took actual noise readings from inside the house. This means the recommendations are based on the glazing already installed at Mrs X’s house.
25. The Council has also decided that it will not reglaze the front door. Mrs X says that her front door has a large, glazed part and so noise will travel into the house. The Council has explained that the front door services the hallway but this is not a habitable room and so does not need the same level of protection. The Council says that this is generally recognised in building regulations and standards. The Council says it has based its approach on the current door but it can review this when Mrs X has decided on the glazing she would like.
26. I have considered the 2021 report, and the 2024 advice to the Council. The 2024 advice is based on an indicative assessment. While it might assume that Mrs X has a type of glazing installed, it does not specify what this is. The Council has explained that it has relied on an assessment of the actual noise levels inside the house, and so it has not assumed any type of glazing. It’s proposal to install secondary glazing accords with the recommendations of the specialist advice.
27. There is no fault by the Council. It has shown that it has taken into account the specialists’ advice. The Council has explained to Mrs X the reasons for its approach, and has offered an alternative as preferred by Mrs X. It is for the Council to decide what work to offer and as there is no fault in the Council’s decision making, I cannot criticise its decision.

Acoustic fencing

28. The Council had agreed to install an acoustic barrier to help protect Mrs X’s house from the noise of the nearby road. We found in 2024 that it was taking a long time for the Council to decide what work it would do, but this was not due to fault by the Council. It had encountered difficulties in the practical and logistical aspects of this, especially in the exact position of the barrier and existing utilities.
29. The Council commissioned a specialist to assess where best to position an acoustic fence. In May 2025, the specialist sent the Council a report with recommendations. The Council is concerned with the feasibility of the fence in terms of the costs and benefits of this, as well as safety aspects and ongoing maintenance.
30. The Council asked the specialist to explore more feasible options and it produced a report at the beginning of December 2025. The Council says it will now be able to give the residents a proposal for the noise reduction. The Council says it accepts that it has taken a long time to reach this stage but there was significant uncertainty around the impact on utilities and the developer’s initial plans had not given enough detail to allow it to decide how to approach this sooner.
31. I appreciate that it is taking a long time for the Council to decide how best to approach this part of the noise reduction measures. However, some of the time taken has been outside its control and we cannot criticise the Council for making sure that it has properly assessed the impact on existing utilities as this is essential for safety and feasibility.
32. The Council has effectively taken a further year to assess and then reassess the most feasible and effective means of reducing noise. This is a long time, but it needed the specialist reports and to review and discuss the recommendations. Overall there is no significant avoidable delay by the Council.

Contamination issues

33. When Mrs X bought the house her conveyancer would have been able to see from the usual searches that the Council had not discharged the planning condition, and so it was for her to decide whether she wanted to continue with the purchase.
34. The Council does not have to enforce the planning condition, and must consider whether it is effective to do so. It has to take into account what enforcement would achieve, and what the developer is doing to discharge the condition. The Council taking enforcement action would not necessarily stop someone from buying the house.
35. We found there was no fault by the Council up to July 2022 because the onus is on the developer to meet the requirements of the planning condition. Following our 2022 investigation, the Council warned the developer that it was considering enforcement action. It gave the Council details of top soil it had used and a survey of the site. The Council considered these but later found that the details the developer had given it were false. This meant the Council had to start again with checking how the developer had dealt with the risk of contamination.
36. The Council did its own survey and in 2023, it wrote to residents to say that there was possible contamination which could be a risk to health if a person is exposed to it. It advised residents to avoid excavations and tracking soil from the garden into the house. Mrs X was very worried because she had grown vegetables in the garden and eaten these. Also her grandchildren had played in the garden.
37. The developer replaced the topsoil and in 2024, it applied to the Council to discharge the planning condition. The Council has not discharged the planning condition and so remains in control of how the developer meets these requirements. The Council asked for more information about what remediation work had been done.
38. In June 2025, Mrs X raised concerns that the soil under the garden fences had not been treated, nor had a strip of land next to the highway. The Council said that the land next to the highway is the responsibility of the highways authority. The Council asked the developer to explain how it had treated the soil under the fences.
39. The correspondence between the Council and the developer suggest that the developer had overlooked the Council’s contact about this and so there was some delay. But in December 2025, the Council’s own specialists and the developer’s consultant met on site to discuss the work. The Council decided that the developer had not ensured the soil under the garden fences had been replaced.
40. The Council says that this represents a small uncertainty about whether there remain contamination risks, but it has not discharged the planning condition and has asked the developer to address the remaining risk first.
41. The Council, on the advice of its specialist, has asked the developer to either remove the fences to replace the soil or provide further samples from around the site. The developer has also said it will treat the strip of highway land. The Council will monitor the work before discharging the planning condition.
42. I can understand that Mrs X is frustrated with how long the work is taking, especially when this was supposed to be done before the house was built. However, within the scope of this investigation (late 2024 to December 2025), there is no fault by the Council. It has sought specialist advice, acted on Mrs X’s concerns, and properly considered the information the developer has sent. It has not discharged the planning condition, and so it is meeting its responsibilities to only do so when it is satisfied the condition has been met. There is no fault by the Council.
43. The government has published statutory guidance for Local Authorities in line with the Environmental Protection Act 1990. This sets out the action a council can take where contaminated land cannot be dealt with through planning processes and contamination poses an unacceptable risk to human health. The Council has reviewed all the information it now has and considers that the risk is low, and that it can be controlled via the planning process. There is no reason for it to take separate enforcement action under environmental protection laws.
44. The strip of highway land is outside of the development area and so not covered by the planning condition. But the developer has agreed to decontaminate this area too, and to provide samples from it so the Council can assess the contamination levels. The Highways Authority can only be responsible for the decontamination if it had caused the pollution or allowed this, or if it is the owner or occupier of the strip of land. The Council could consider the Highways Authority to be the occupier of highway land. But the Council remains responsible for ensuring it is safely managed.
45. As the developer has agreed to include the highway land in its decontamination work, there is no need to take separate enforcement action under environmental protection laws. However, the Council should consider this if the developer does not safely manage the strip of highway land.

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Investigator's decision on behalf of the Ombudsman