Summary: Mrs B complained about the actions of the Council when she complained about disturbance from construction traffic near her home. On the evidence available we find fault with the way it dealt with the possible enforcement concerns and the way it communicated with Mrs B. We also find it delayed excessively in responding to her queries and complaints. We have asked the Council to apologise, pay Mrs B £300 and improve its procedures for the future.

The complaint

1. Mrs B complained that Wiltshire Council (the Council), in respect of the construction traffic near to her home failed to:
• properly consider or communicate the degree of disturbance likely to be caused to residents on the route;
• properly consider an alternative route, including failing to visit the site to fully understand what was being proposed; and
• respond to Mrs B’s queries and complaints about the issue promptly and in a transparent way.
2. The resulting numbers of lorries passing Mrs B’s property on a daily basis has caused and continues to cause significant stress and inconvenience. The lack of an adequate response from the Council has exacerbated her frustration.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, 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(i), as amended)

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How I considered this complaint

6. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.

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What I found

7. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
8. 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.
9. 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 July 2021, paragraph 59)

Council complaints procedure

10. The Council says it will acknowledge stage one complaints within two working days and respond within 20 working days, although it may extend this to 30 working days if more time is needed.
11. At stage two it will respond within 30 working days unless it needs more time and can then extend this to 40 working days.

What happened

12. The Council granted planning permission for a development of houses on land near to Mrs B’s property. The permission contained a condition requiring the developer, before commencing development on the site, to provide a routing plan and photographic pre-condition highway survey. It also required the developer to submit a post-condition survey after a number of the houses had been occupied and to rectify any damage.
13. In early November 2021 the developer submitted an application to discharge several conditions including the routing plan. From late November several residents (including Mrs B on 13 December 2021), complained to the local councillor about lorries accessing the site through unsuitable residential roads causing obstructions, disturbance and hazards for residents. The councillor raised the possibility of the developer creating a new temporary access road which would avoid using the smaller estate roads.
14. The Council responded to the councillor confirming that the building work should not have started as the conditions had not been discharged. It would consider whether a breach of the planning condition had occurred and whether an alternative access route was possible. The councillor provided further information supporting his view that work on the site had started, beyond preparatory groundworks. The Council responded on 9 December 2022 explaining why the alternative access route was not possible.
15. The Council opened an enforcement case.
16. Mrs B contacted the Council’s enforcement team to question why a new service road had not been created, why work was ongoing even though the condition had not been discharged and what action the Council was taking. She sent further emails and photographs saying the lorries were causing chaos and requesting a site meeting. The enforcement team responded saying that there was a large backlog of work, the officer had been off for a prolonged period of sick leave and there would be no visit or response before Christmas. Mrs B sent further evidence of problems. She also complained to the highways team about a broken manhole cover outside her property.
17. The developer submitted a construction route plan on 20 December 2021. On 4 January 2022 the Council contacted the developer to report that it had received a large number of complaints about lorries not keeping to the route plan. On 6 January 2022 it informed the developer that works should cease as the condition had not yet been discharged. Mrs B advised that lorries were accessing the site again.
18. On 14 January 2022 Mrs B informed the Council that the lorries appeared to be using a temporary access off the main road. Another resident complained that this was dangerous for pedestrians and other road users.
19. On 19 January 2022 the developer sent some further details regarding the discharge of the conditions. The Council requested some more information which the developer provided on 24 January 2022.
20. In February 2022 Mrs B chased up the Council about the lorries and the manhole cover. The Council said it was still considering the application to discharge the conditions.
21. An internal email between Council officers expressed frustration at the lack of progress on the routing plan and the construction plan, particularly the lack of detailed information from the developer. The Council was aware that the information should have been submitted and approved before building work commenced.
22. On 7 February 2022 Mrs B submitted a formal complaint but it was never acknowledged by the Council. The manhole cover was repaired the following day.
23. On 10 February 2022 the developer provided further information regarding the construction traffic route and parking.
24. Mrs B chased the council at the end of February for a response to her complaint. She also continued to provide details of residents’ concerns about lorries and questioned why the construction method statement and route plan were not on the website.
25. She submitted a further complaint on 8 March 2022 including a complaint from another resident and the general lack of communication from the Council since December. The Council acknowledged the complaint and said it would respond by 6 April 2022.
26. A highways officer responsible for the site contacted Mrs B to say she was aware of the lorry issues (which now included speeding) and would be liaising with the developer about the agreed construction route not being adhered to. They said the Council would ensure all damage was repaired post-construction.
27. The Council was still requesting details from the developer in respect of the conditions, including the routing plan. It had also not yet taken pre-construction photographs of the condition of the roads. The developer said that residents were obstructing the agreed route with parking. Mrs B disputes this was happening in her road.
28. On 15 March 2022 the officer sent a copy of the construction route plan to another resident. The officer said that lorries were not using the correct route. Mrs B questioned why the Council was satisfied that the route through the estate was adequate and whether the conditions had been discharged yet. If not, she asked why the site was still open.
29. On 16 March 2022 Mrs B met with two people from the developer and a Council officer. She said she was assured by the developer that they would let her know when a large number of lorries were expected on site. The developer never contacted her and she had problems contacting the site manager.
30. On 21 March 2022 the highways officer gave Mrs B a detailed explanation as to why the alternative access road suggested in December 2021 was not suitable. Mrs B was unhappy with the explanation and sent a series of emails questioning the decision. A more senior officer said the officer should stop communicating with Mrs B on this issue while her complaint was being dealt with.
31. On 21 March 2022 the Council formally discharged the conditions.
32. On 6 April 2022 the Council requested a 10 day extension to reply to Mrs B’s complaint ,with a new deadline of 21 April 2022.
33. On 7 April 2022 internal emails show the Council had installed signage to direct lorries to the correct route, had raised concerns about lorries parking on the estate, exceeding the weight limit on some roads, not following the construction route and damage to the kerbs. The developer had appointed a spokesperson to liaise with the residents when large numbers of lorries were due on site and another officer was due to meet the developer on site the following day. The officer raised the possibility of issuing a ‘stop’ notice if the situation did not improve.
34. On 19 April 2022 an officer noted the damaged kerbs had not been repaired and a lorry was not following the signs. Another highways officer expressed frustration at the lack of compliance with the signage and the number of resident complaints.
35. The Council responded to Mrs B’s complaint at stage one of the Council’s complaints procedure, on 21 April 2022. It apologised for the lack of response to her initial complaint in December 2021. It said this was due to staff sickness.
36. It said the conditions had been discharged on 6 March 2022 (although the date of the decision notice on the website is 21 March 2022). It said it considered the access route through the existing road network was appropriate and that the documents were now available on the website.
37. It acknowledged that the development should not ‘technically’ have proceeded without formal discharge of the conditions but said that officers had been in contact with the developer to ensure vehicles used the approved route. It agreed there should have been more communication from the developer about the route but felt the situation had now improved with the signage. It explained the Council did not always take formal enforcement action because issues could usually be resolved informally.
38. The Council apologised for not responding to the request to mend the broken manhole cover, but repairs to that and the damaged kerbs would be done by the developer.
39. Mrs B remained unhappy and escalated her complaint to stage two on 26 April 2022. The Council responded on 1 July 2022.
40. The Council said the enforcement team had responded to her stage one complaint in line with requested 10 day extension. It confirmed it had opened an enforcement investigation, but formal action had not been necessary because the issues had been resolved informally.
41. In respect of the work starting on site before the conditions had been discharged, it said the initial works related to site clearance, erection of security fencing and remediation of contamination.
42. The Council said the routing plan had been available online by searching the relevant address although it was under a new planning number and the route was technically assessed as ‘fairly and reasonably related in scale and kind to the development’. It said it had considered the alternative access suggested by the councillor and Mrs B but this was rejected and explained to the councillor in an email in December 2021. It said site visits were carried out to assess the proposed route and again when the enforcement team became involved.
43. The Council agreed that it would consider Mrs B’s request to remove some traffic -calming measures on the route as they were creating a lot of problems with the extra construction traffic.
44. The Council said it had followed all necessary procedure and guidelines and could not find any evidence of fault. It recognised the traffic-calming measures were adding to the problems with the construction traffic and the Council would request an inspection to see if they could be removed or altered.
45. On 15 August 2022 the Council contacted Mrs B to explain why it had not yet taken action over the traffic-calming issue: the Council could not simply remove them without providing a replacement and this required extensive consultation, which was ongoing. Mrs B has received an update on this issue in December 2022.
46. Mrs B complained to us in July 2022.

Analysis

47. One of the purposes of planning conditions is to protect residents from disturbance and nuisance during construction. Such conditions should usually be discharged before development begins so residents are clear what they can expect during construction. In this case the Council did not reassure Mrs B in a timely way that the system was effective at protecting her and provided no information for about what she could expect to endure, until the work had been ongoing for over four months.

Enforcement

48. The Council took over four months to discharge the conditions including the condition relating to a construction route and construction management plan. The Council should have discharged these conditions before the development work started, but it did not.
49. I am not clear when the Council considered the building work actually started, but there is no evidence it reached a conclusion during this period as to whether a breach was occurring or considered whether the harm being caused was sufficient to take any further action.
50. It said in the stage one complaint response that the developer was technically in breach of the planning permission, but the situation had been resolved informally and there was no requirement to take enforcement action. But the Council did not say this to Mrs B until 21 April 2022, a month after the conditions had been discharged and five months after the initial complaints had been raised. This delay was fault which caused Mrs B significant frustration and distress. She repeatedly raised concerns about the lorries but received no substantive response from the Council or any explanation as to what was happening and why.
51. It is clear from the records that various officers during this period expressed concern over the lack of compliance from the developers with the construction route and questioned whether a stop notice could be issued. But there is no evidence this was considered as an option, or any explanation given to officers let alone residents, as to why it was not done. Neither is there any evidence that the Council assessed the level of harm being caused to the residents or communicated to them why it did not merit any formal action.
52. I accept that individual officers were engaged in frequent contact with the developers trying to secure improvements and some success was achieved with signs being erected. But none of this was communicated to Mrs B in a timely way. In fact, when one individual officer, in March 2022 tried to provide some of the detail Mrs B had been seeking, they were instructed to stop as there was an ongoing complaint. There appears to have been no urgency or wish to engage with Mrs B constructively during this period which was fault.
53. Mrs B endured months of frustration and disturbance with no adequate response from the Council.

Alternative route

54. The Councillor raised the possibility of an alternative access route with the Council in December 2021. The Council responded that it had concerns that the route was not viable, but it was considering it further. The Council has provided evidence that it did send a detailed response to the councillor on 9 December 2021. Although it did not communicate this directly to Mrs B I would have expected the councillor to have done so.
55. The Council should have provided Mrs B with the proposed construction route supplied by the developer in December 2021. She asked for this document on numerous occasions but the Council did not send a copy until March 2022 or provide the correct planning reference so she could find it online. This was fault which caused frustration and uncertainty as to what the correct route was and whether the lorries were following it.

Complaint-handling/communication

56. Mrs B first complained about the lorries on 13 December 2021 and requested information about the process and the route. She did not receive a substantive response to any of her queries. So, she submitted a formal complaint on 7 February 2022 via the online complaint form but the Council did not acknowledge it. So, she had to complain again on 8 March 2022. The Council responded on 21 April 2022, over four months after her initial complaint. This was fault which caused Mrs B frustration and uncertainty. She also had to chase up the Council on numerous occasions.
57. The Council exacerbated the fault by insisting the stage one response had been sent within the published timescales. It had not. Even taking the time from Mrs B’s first formal complaint on, 7 February 2022, the Council took over 11 weeks to respond, five weeks over its own maximum time frame.
58. The response did not give any detail as to why the construction route was acceptable, why the alternative had not been agreed, why neither the route or the construction method plan had been made available to residents or why the work had continued when the conditions had not been discharged.
59. The stage two process was also delayed taking over nine weeks when the maximum was eight. Mrs B also had to chase this up on several occasions.
60. Despite the delays, the poor communication and the lack of transparency with Mrs B since December 2021, the Council said it could find no evidence of errors. This was fault, exacerbating Mrs B’s sense of frustration and confusion.
61. I also note that the suggestion of removing the traffic-calming measures was not progressed until very recently and has not resulted in any changes to the road. As the development work is nearly finished, this seems to have been an impractical suggestion, which has provided no respite to Mrs B.

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Recommended action

62. In recognition of the injustice caused to Mrs B, I recommend the Council within one month:
• Apologises to Mrs B and pays her £300 for the distress caused and the time and trouble she has been put to.
63. I also recommend that within three months the Council reviews its communication with people regarding enforcement issues and introduces service standards for responding to queries and complaints, which will be effectively monitored.
64. The Council should provide us with evidence it has complied with the above actions.

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Draft decision

65. Subject to further comments by Mrs B and the Council, I intend to complete my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman