Summary: We found fault on Mrs J’s complaint about the Council failing to ensure planning conditions for works on a site near to her home were complied with, including for a Construction Environment Management Plan. It delayed reaching a decision on the submitted Plan for nine months and delayed dealing with her formal complaint. The agreed action remedies the injustice caused.

The complaint

1. Mrs J complains the Council failed to ensure planning conditions for works at a site near her home have been complied with, including the failure to approve a Construction Environment Management Plan, from July 2020 to the present date: as a result, her amenities are affected by the volume of construction vehicles using her road to turn, queue, park, and unload.

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The Ombudsman’s role and powers

2. 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)
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)

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Planning guidance

4. 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)

5. 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.

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Council enforcement policy

6. The Council is committed to providing a timely, robust, and proportionate, regulation and enforcement system for issues it is responsible for. When carrying out enforcement activity, it will do so fairly, according to nationally recognised set of principles.
7. Reports of potential breaches receive an initial assessment to decide whether an urgent response is needed, whether possible offending is occurring, and who should lead any investigation. Where necessary, it will carry out investigations to decide if the law is broken and to gather an appropriate amount of evidence.
8. It will only take formal action, and legal action, where this is necessary, proportionate and in the public interest. Informal action involves giving verbal advice and accepting voluntary undertakings, for example.
9. A council can issue a Stop Notice. This prohibits any or all of the activities amounting to a breach of planning consent set out in an enforcement notice before the deadline for compliance is reached (section 183, Town and Country Planning Act 1990)
10. A council can also issue a temporary Stop Notice which allows it to act very quickly to address breaches of planning consent when expedient to do so. It requires the activity which is breaching consent to stop immediately. (section 171E, Town and Country Planning Act 1990) It does not need an enforcement notice before it can be issued.

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How I considered this complaint

11. I considered all the information Mrs J sent, as well as the Council’s response to our enquiries, a copy of which I sent her. I sent a copy of my draft decision to Mrs J and the Council. I considered their responses.

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What I found

12. Mrs J lives near a site on which construction of a housing development started in July 2020. As the Council refused the planning application for the scheme, the developer successfully appealed its decision to the Planning Inspectorate. When giving consent, the Planning Inspectorate included various conditions. One of these said the developer had to send a Construction Environmental Management Plan (the plan) to the Council for its approval before any development started.
13. The aim of these plans is to set out how a construction project will avoid, minimise, or lessen, its effects on the environment and surrounding area. This is done by setting out certain arrangements which includes the parking of vehicles of site operatives and visitors for example, the turning of vehicles, and the routes used to the site by construction traffic.
14. Some of the houses are now built and sold, but other phases of the development continue. During construction works, Mrs J was disturbed by the volume of heavy goods vehicles and other construction traffic using her road and surrounding roads. She complained to the Council about vehicles using her road to turn, park, queue for access to the site, and to unload. She also complained about the developer leaving generators running all night. She says the Council failed to ensure the planning condition about the plan was complied with and it also failed to enforce other conditions.
15. In January 2021, the Council confirmed it received details for the plan from the developer (draft plan). It had 8 weeks to decide whether it was happy with the proposals but says because of the number, and complexities, of conditions, it missed the deadline. It said there were further negotiations with the developer about it to ensure its details were clear and robust for it to consider.
16. The same month, Mrs J and other residents complained to the Council about: a generator running overnight; the filling in of drainage ditches which contributed to flooding; lorries blocking her road; the impact the traffic.
17. In February, the Council told her while it identified breaches of predevelopment conditions, without an agreed plan it had nothing against which it could enforce. The Council sent the developer an email about the concerns raised. It also explained it was looking at documents to check the site and conditions.
18. It later told Mrs J it had required the developer to formally stop works. If works did not cease until conditions were signed off, it may need to move to a Stop Notice.
19. In response to our enquiries, the Council confirmed an officer took legal advice about issuing a Stop Notice. The advice to the officer was the Council could not issue it as the law excluded the use as a dwelling house for such a notice.
20. The Council received an email from the developer confirming: only ‘enabling works’ (site preparation works before main construction starts) were being carried out; its agreement to tell construction workers about deliveries, engines running while stationary, sweeping mud off the road, and turning the generator off overnight.
21. The same month, the developer said it would start using a traffic marshal.
22. The following day, the Council emailed Mrs J to saying ‘enabling works’ do not trigger breaches in predevelopment conditions which it agreed can continue.
23. In March, the Council told her it could now enforce against the plan which meant the officer would now visit the site. It asked her to complete a log sheet recording activities. Officers visited the site and found no breaches in March or April.
24. In May, the Council told Mrs J the plan had not been signed off (agreed) by the Council so it had nothing to enforce but had chased the planning officer.
25. In June, the Council again contacted Mrs J. It explained until a plan was agreed, there was little it could do in terms of enforcement. It also explained the plan the developer sent had ‘been with the planning side of the department for some time’. This meant it could not stop the works under the predevelopment part of the condition. It was waiting for the planning team to agree the plan. It also sent an email to the developer about lorries and stones on the road.
26. A new site manager called and asked for images of the lorries concerned, so he could raise the issue with the companies. The site manager also emailed the Council about lorries speeding and muck on the roads.
27. There was an internal meeting at the end of June. It also arranged a meeting with the site manager.
28. The Council sent the developer an email the following month. This covered proposals about working hours in the draft plan which it found unacceptable. A meeting also found development was ‘substantially on its way’ with some outstanding work meaning it was in breach of conditions. Part of the reason for not processing the plan sooner was due to delays receiving consultee comments.
29. The Council sent Mrs J its stage 1 complaint response in August. This apologised for the delay with dealing with the developer’s submitted plan. It explained enforcement officers were in contact with the developers about addressing her problems. It also explained some of her concerns would not have been covered by the plan anyway, such as weight restriction of vehicles. It explained as the developer sent a draft plan, it could not take enforcement action about any failure to have the details agreed.
30. Evidence shows the enforcement team asked for a decision on the plan as soon as possible as this affected the enforcement options for the team. The evidence also shows it was not appropriate to issue a Stop Notice because of the length of time passed since the draft plan was sent to the Council. After further reports of construction starting at unreasonable hours, the Council met with the developer.
31. I have seen an email from the developer in response to issues raised by the Council. This involved: installing a section of road to Mrs J’s road to make traffic access easier and faster; it contacting all transport to the site about the need to follow the highway code; erecting signage on the site reminding drivers/suppliers to be considerate; it looking at alternative access to the site; claiming work noises were not always from its site.
32. A site visit later that month found a breach of the proposed working hours. I have seen the site manager’s response who had acted when told about it. At the end of the month, the Council also carried out two site visits on Saturdays at different times of the day but found no breaches.
33. In October, the Council told Mrs J that after meeting the developer, certain measures about queuing, deliveries, and working times were agreed. Information about progress on the plan would be sent by a different team.
34. An email I have seen to various parties states the Council has several undischarged pre-commencement conditions which it was now considering taking formal enforcement action on. The Council sent an email to the site about further problems with lorries and warned it would be looking at a Stop Notice because of the drivers. The site manager confirmed it would put in place a ‘gateman’ for eight weeks.
35. Evidence shows the gateman turned away a lorry which arrived too early one morning. The Council decided formal action about working hours was not appropriate at this time.
36. In a letter later that month, the Council apologised to Mrs J for not meeting its stage 2 complaint timescales. It also confirmed it approved the draft plan the week before.
37. In December, the Secretary of State for the Ministry for Housing made a statement to the House of Commons which came in to immediate effect. This also dealt with deliveries connected to construction. The statement said;

‘Many commercial activities in England are subject to controls which restrict the time and number of deliveries from lorries and other delivery vehicles, particularly during evenings and at night. These restrictions may be imposed by planning conditions, which are necessary to make the development acceptable to local residents who might otherwise suffer from traffic, noise and other local amenity issues. However, this needs to be balanced with the public interest, for all residents, to have access to shops which are well stocked.

The National Planning Policy Framework already emphasises that planning enforcement is a discretionary activity, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

Local planning authorities should not seek to undertake planning enforcement action which would result in unnecessarily restricting deliveries, having regard to their legal obligations.

Construction output has also been inconsistent in recent months and not returned to pre-February 2020 levels. Construction sites in England may also be subject to controls which restrict the hours within which they can operate. Wherever possible, local planning authorities should respond positively to requests for flexibility for operation of construction sites to support the sector’s recovery.

The Government recognises that it may be necessary for action to be taken in relation to the impacts on neighbours of sustained disturbance due to deliveries and construction outside of conditioned hours, particularly where this affects sleep. In this case a local planning authority should consider any efforts made to manage and mitigate such disturbance, taking into account the degree and longevity of amenity impacts.’

38. The same month, the legal team decided a temporary Stop Notice could not be used to stop occupation of dwellings.
39. No further breaches were seen by officers during a site visit in January 2022. Following further reports, officers met the developer on site. This led to more signage about no waiting or parking, further work with delivery companies about being considerate, and agreeing to do a leaflet drop to nearby residents when disruptive works or deliveries were to take place. The developer was again reminded about delivery hours.
40. The Council served a planning enforcement notice about drainage which became effective the following month. Officers prepared a breach of condition notice for queueing lorries for the legal team.
41. In February, the Council served the developer with a breach of condition notice for failing to comply with the plan.
42. In response to our enquiries, the Council said:

• enforcement action against the developer, while an option, was discretionary;
• any action needs to be expedient, proportionate, and reasonable. Its own enforcement policy says it will try to regularise matters before taking formal action where possible. It decided other options were not expedient, proportionate, and reasonable;
• it also explained the claims made of breaches of condition related to details not being sent by the developer and approved when they should. It found breaches with the drainage conditions and the plan conditions. It considered what action it could take for each breach;
• various issues were not for the planning team to consider, such as breaches of weight limits on roads; and
• officers responded to a large number of correspondence from third parties while it had just two investigating officers covering the entire district with one line manager with a current caseload of just under 900 active investigations.

43. Mrs J is also unhappy with the way the Council dealt with her formal complaint about its handling of her reports. She says she first complained in July 2020 although the Council’s stage 1 response refers to receiving her complaint on 12 July 2021. It explained her initial complaints were not registered until November 2020 because she had sent it to officers who were no longer employees.
44. She asked for it to go to stage 2 on 5 September 2021 and the response was due on 3 October. She agreed its request to give it more time to reply by another week but was unhappy when it asked for a further two-week extension.

Analysis

45. Councils can take enforcement action if they find planning rules have been breached. Councils should not take enforcement action just because there is a breach of planning control.
46. 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.
47. 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.

48. While construction management conditions may help reduce 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.
49. I make the following findings on this complaint:
1. Starting work on site without meeting the requirement of the condition to have an agreed plan in place was done at the developer’s own risk. The risk was of the Council taking formal enforcement action for it breaching this condition.
2. The Council says it received the plan from the developer in January 2021. It was not agreed until October, nine months later. It explained it took this long because of an exceptional rise in workload and several vacancies within the planning team. It accepts the delay was unacceptable. While I appreciate the impact these two factors had on its ability to process this plan promptly, these do not excuse the delay. They are issues it needed to resolve to ensure such delays were eliminated. I am satisfied taking nine months to reach a decision on the draft plan amounts to fault.
3. The delay considering and deciding whether the draft plan was acceptable had important consequences. Not only was there no agreed arrangement covering the site but, it meant the planning enforcement team would find it difficult to take enforcement action against the developer for breaching the planning condition. While the draft plan should have been submitted for approval before works started, the developer could defend any subsequent enforcement action by arguing it was waiting for the Council to consider it.
4. The evidence shows the Council approved the plan in October 2021 and in February 2022, just four months later, issued an enforcement notice for breaching it. On balance, I am satisfied the delay dealing with the draft plan meant it was more than likely to have also caused a delay taking enforcement action against the developer.
5. There is a record of the Council telling Mrs J in March 2021 that it could now take enforcement action against the plan. I fail to see how it could have done as it did not agree it until October, seven months later. This is fault.
6. When the Council agreed the plan in October 2021, it could now properly consider enforcement action as a serious option. This is because it had an agreed approved plan against which it could hold the developer to account against. To prove a breach, the Council would need to investigate allegations and gather evidence, all of which would take more time.
7. In December, the Minister’s statement told councils to respond positively to requests from developers for flexibility on sites and to consider measures taken on site by developers against the likely time residents would suffer. Even taking this advice into account, the Council went on to issue an enforcement notice two months later.
8. I am satisfied the identified faults caused Mrs J injustice. The distress she suffered is in the form of uncertainty, lost opportunity, inconvenience, uncertainty about whether the outcome might have been different but for the delays, and frustration.
9. The Council accepts it delayed dealing with her formal complaint at stage 2 as it sent it on 22 October 2021, almost three weeks after its own deadline. While the Council had told Mrs J about the need to extend the time for its response, I am satisfied the delay amounts to fault. It caused Mrs J an injustice as she experienced distress in the form of frustration.

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Agreed action

50. I considered our guidance on remedies.
51. I also took account of the following:

• In its stage 2 response to Mrs J, the Council apologised to her for the delay; and
• It also explained it had arranged for some actions, including changes in working practices, to be taken to help reduce the likelihood of this failure from happening again in the future.

52. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mrs J a written apology for its failures to deal promptly with the draft plan.
2. Act to ensure its processes are robust and adequately resourced to ensure the identified delays are not repeated on future cases.
3. Confirm what actions, and changes to working practices, it took in response to the delays on her stage 2 complaint.
4. Pay £250 to Mrs J for the avoidable injustice caused by the fault.

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Final decision

53. I found fault on Mrs J’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman