Summary: Ms X complained the Council disregarded her objections about the disruption a nearby development would cause and did not consider the planning application properly. She also says the Council missed opportunities to mitigate the impact of construction noise. We have not found the Council at fault for how it considered the planning application. We have found the Council at fault for how it carried out its noise nuisance investigation. We have made recommendations to remedy the injustice this caused. We have found the Council at fault for not opening a planning enforcement investigation sooner, but this did not cause Ms X an injustice.

The complaint

1. Ms X complains about the Council granting planning permission for redevelopment of a nearby property. Ms X says the Council:
1. disregarded her objections about the disruption construction would cause;
2. misunderstood the site location and scale of the proposed development when granting permission;
3. failed to attach conditions to the grant of permission, posing risks to Ms X’s home and the surrounding area because of the extensive construction; and
4. failed to adequately investigate or address Ms X’s concerns;
2. Ms X says the resultant noise meant she could not enjoy use of her home for an eight-month period. This caused frustration, distress and impacted her health.

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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)

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How I considered this complaint

5. I considered information Ms X provided and discussed the complaint with her.
6. I considered the Council’s responses to my enquiries.
7. Both Ms X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.

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Relevant legislation, guidance and policy

Case officer reports

8. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed.
9. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed in the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

Planning enforcement

10. 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.
11. 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)

Construction management conditions

12. 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.
13. Major developments are defined as having specific criteria set out in regulations, related to the number of houses being built, and the size or use of the land.

Statutory nuisances

14. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
15. Typical things which may be a statutory nuisance include disturbances such as:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises; and
• smells from industry, trade or business premises.
16. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.
17. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
18. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
19. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Principles of Good Administrative Practice

20. The Ombudsman published the Principles of Good Administrative Practice (the Ombudsman’s Guidance) in 2018. The Guidance sets out the Ombudsman’s benchmark for the standards expected when investigating local authorities’ actions.
21. The Ombudsman’s Guidance stresses the importance of being open and accountable, explaining the reasons for decision making, and keeping proper, suitable records.

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What I found

Background

22. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every interaction between parties. Where necessary, I have expanded on some of these events in the analysis section of this decision statement.
23. In June 2020, the Council received a householder planning application for works to refurbish and upgrade an existing dwelling, adding an extension.
24. Ms X lives close to the development site. She objected to the application on the grounds of noise, visual impact, and a threat to habitat and wildlife. Concerning the impact of noise, Ms X said her house was directly below the proposed application site. Her household would bear the brunt of any noise and disruption caused by excavation and building work throughout the week.
25. Ms X said work on a nearby site had caused disruption and distress over a four-year period; she was concerned this would happen again. Ms X said this was not normal construction noise, but major noise, such as drilling and groundwork excavation, and constant noise from heavy vehicles.
26. In February 2021, the Council granted planning permission for the development. The accompanying officer report considered the issues of visual impact and biodiversity. On the issue of noise, the report said:

“Concern has been raised by a neighbour about construction work as an adjacent site has been undergoing redevelopment and this proposal will continue the disturbance. Whilst I have sympathy with the neighbour the noise level is unlikely to be beyond that normally associated with work and this application site is slightly further away which may mitigate the impacts of construction. Should the noise or vibration be so obtrusive then correct recourse would be via environmental protection.”

27. Works began on site in September 2021. In January 2022, Ms X submitted a noise nuisance report to the Council. She said there had been drilling on the site throughout the week and she was concerned it would extend over weekends. Ms X said the drilling was causing vibration and noise throughout her home and had been since October 2021.
28. The Council sent Ms X noise diaries to complete. At this time, Ms X was seeking a resolution directly with the site owner, so did not complete the diaries.
29. In March 2022, Ms X made a complaint to the Council. Ms X said:
1. since October 2021, there had been extensive groundwork, with heavy drilling taking place.
2. there had been constant noise from construction vehicles.
3. the noise had been variable and intermittent. Ms X said it had caused vibrations and noise inside her home, to the point she could not watch television, listen to the radio, or have her windows open.
30. The Council again sent Ms X noise diaries to complete, to document the type and frequency of the disturbance. Ms X returned these diaries to the Council in March 2022, detailing disturbances over a two-week period. Ms X said there had been continuous drilling. She said she needed to leave the house on occasion and could not hear the television or radio when the noise was at its worst.
31. The Council reviewed the noise diaries and the original planning consent. It wrote to Ms X, saying the diaries suggested work was taking place within permitted construction hours. It asked for more details to help assess if it could refer the matter to its planning enforcement service.
32. The Council also contacted the site owner about the reports it had received. It asked the site owner to ensure work at the site complied with the relevant building standards for noise and vibration. It offered practical advice the site owner could follow to help mitigate the impact of the work. It updated Ms X as to its actions. It asked Ms X to report any new developments.
33. In April 2022, Ms X complained to a local councillor about the noise and the Council’s decision to grant planning permission. Ms X continued to provide the Council with updates about the noise and impact of the works. She sent pictures of the site to the Council. The Council continued to engage with the site owner and offered further advice on measures to reduce noise caused by construction vehicles. The Council received Ms X’s complaint via her local councillor.
34. At the end of April 2022, the Council’s environmental health team carried out a site visit. It wrote to Ms X after this visit, explaining the measures it had agreed with the site owner to further mitigate the impact of the work. The Council explained it understood the noisiest work would be finished by the end of May, after which works would be less intrusive. The Council said it would be returning to check on some of the agreed noise reduction measures, once the site owner had installed them.
35. In May 2022, the Council responded to Ms X’s complaint at stage one of its complaints procedure. It said it had spoken to the site owner and understood the drilling had now stopped. It said there were no planning enforcement issues and so it would not open a planning enforcement investigation.
36. Ms X asked the Council to escalate her complaint. She also told the Council the mitigation measures set up by the site owner had not been effective and there had been two drills on site, resulting in added excavation taking place. She said the noise was such that Ms X could not go outside during periods of construction. Ms X asked what happened if the site owners did not comply with the Council’s recommendations.
37. In July 2022, the Council responded to Ms X’s stage two complaint. The Council:
1. partly upheld the complaint.
2. said it had reviewed the distances between Ms X’s property and the application site. It said there had been an error calculating the distance and offered an apology for this. It said even if this had not been the case, the outcome would have been the same. It said it noted Ms X’s concerns about construction noise, but it would not have applied a construction management condition in this case. It said the works proposed were not of a scale to warrant such a condition.
3. had reviewed Ms X’s photographs and believed it should explore the scale of the groundwork being carried out at the site, to understand if this was a development requiring planning permission. It said it would investigate whether the works carried out went beyond the permission already granted. The Council said it would open a planning enforcement case.
4. said its environmental protection team had told the developer to erect extra acoustic barriers. The Council said while construction was taking place, these works were temporary, and construction disruption would not have been grounds to reject the planning application. The Council said excessive noise outside normal construction hours could be dealt with by its environmental protection service.
5. accepted it had failed to check the distance to Ms X’s property and upheld this part of Ms X’s complaint. The Council said this would not have led to a different outcome, however. It said it would update its guidance for developers on assessing noise for planning applications. It said officers would be reminded of the need to check any submitted plans carefully.
38. The Council opened a new enforcement investigation and visited the site in August 2022. The Council says it measured the site and took photographs. It sought and received from the site owner copies of reports about the stability and drainage of the work site.
39. Internal Council emails show discussion took place about the development site, as the permissions granted did not comment on the extent of the groundwork being carried out.
40. In September 2022, Ms X referred her complaint to the Ombudsman.
41. In October 2022, the Council wrote to Ms X with the outcome of its planning enforcement investigation. The Council said:
1. it had assessed that the groundwork to the site was outside the scope of the original planning permission granted.
2. it had carried out a site visit and obtained a geotechnical engineers report from the site owner. The Council considered these reports would have been accepted, had planning permission for the works been sought at the outset.
3. the site had seeded netting placed over it, which would lead to revegetation in time, as per the original intention of the permission.
4. it was satisfied that planning permission for the work would have been granted, had it been sought from the outset. It was therefore closing the case and would take no further action.
42. Ms X asked the Council if it would have applied construction management conditions to mitigate against the noise and vibration, had planning permission been sought. The Council said it could not retrospectively confirm whether this would have been the case.

Analysis

Planning application and grant of permission

43. As set out in paragraph 9, officer reports do not need to be overly detailed and should not be subject to hypercritical scrutiny. The Council highlighting Ms X’s objection, and setting out its conclusions, shows the Council had regard to Ms X’s concerns when making its decision.
44. The cover letter for the planning application refers to an enclosed draft construction management plan (CMP). CMPs can be used to help developers minimise potential impacts from work sites on the surrounding environment. I asked the Council about this plan and how it considered it when making its decision.
45. The Council told me although the application cover letter mentioned the draft plan, the Council never received one. It said a CMP was not a validation requirement for householder applications of this size. A review of the Council’s validation requirements confirms a CMP is not necessary for householder applications. I have not therefore found the Council at fault for not requesting one.
46. The Council said the planning officer did not consider a planning condition requiring a CMP was necessary. This was a professional decision the Council was entitled to make, having regard for the information it needed to reach a decision about the application. While I recognise Ms X believes the Council made the wrong decision, there is no evidence of fault in the way the Council reached its conclusion. I have not therefore found the Council at fault for its decision-making.
47. In response to Ms X’s complaint, the Council accepted it had miscalculated the distance between Ms X’s property and the development site. It said it had considered whether this would have made a difference to its grant of permission and concluded it would not.
48. I agree with the Council that this was fault. The Council has taken the appropriate step of reviewing whether this would have made a difference to its overall decision. Given the Council has confirmed it would still have granted the permission, I do not consider this fault to have caused Ms X an injustice.
49. The development site was located within an Area of Outstanding Natural Beauty (AONB) and close to a Site of Special Scientific Interest (SSSI). The officer report confirms the Council consulted with Natural England and the area AONB Unit in respect of the application.

Noise nuisance investigation

50. The Council assessed Ms X’s diaries when she returned them. It wrote to the site owner with guidance and advice, carried out a site visit, and made recommendations to mitigate the impact of any remaining works. These actions were appropriate and timely. I have not found the Council at fault for its initial response.
51. After it completed its site visit in April 2022, the Council told Ms X it would return to assess the effectiveness of the agreed noise reduction measures. In May 2022, Ms X wrote to the Council to say the noise had gotten worse. She said there had been more drilling on site and the site owner had either not put noise reduction measures in place, or the measures were not effective.
52. In July 2022, the Council recorded a formal decision of no statutory noise nuisance on its records and closed the case. It cited the fact it had received no further complaints or reports since May 2022 as the basis for doing so. I have seen no record the Council told Ms X of its decision, or its rationale.
53. I have found the Council at fault for not informing Ms X of its decision. This caused Ms X avoidable uncertainty and frustration. It is also contrary to the principles set out in the Ombudsman’s Guidance.
54. I have seen no evidence the Council responded to Ms X’s reports of further disruption. I have found the Council at fault for this. The Council not replying to Ms X or addressing her concerns caused avoidable frustration and uncertainty, which is an injustice.
55. I have also seen no evidence the Council visited the site again in response to Ms X’s new concerns, or inspected to assess the effectiveness of the noise mitigation measures. It is therefore unclear how the Council could have decided there was no statutory nuisance three months after its first visit, without acting on Ms X’s further reports. It had also not returned to assess the adequacy of the measures set up by the site owner. Given the Council said it would return to inspect the site for these reasons, I have found it at fault for not doing so.
56. These faults caused Ms X an injustice. The Council missed opportunities to gather and assess additional evidence directly related to Ms X’s concerns. If the Council had visited the site again, it is possible any further evidence gathered may have led to a different decision, or to the Council taking further action that could have further mitigated the impact of the construction. The uncertainty this causes is an injustice to Ms X in itself.

Planning enforcement investigation

57. When responding to Ms X’s complaint at stage one of its complaints procedure, the Council said it concluded there were no enforcement issues to address and it would not open a planning enforcement investigation. In its stage two complaint response, it said it had reviewed the pictures Ms X had provided previously. It said it believed it needed to assess the extent of the groundwork carried out, to check if this went beyond the scope of the permission originally granted.
58. I have seen evidence Ms X provided the Council with pictures of the site as soon as April 2022. I therefore consider the Council could have assessed this evidence sooner and reached its decision to open a planning enforcement investigation earlier than it did. I have found the Council at fault for not considering available evidence at an earlier stage.
59. However, I cannot say this caused Ms X an injustice. The Council conducted a planning enforcement investigation and concluded that while the works went beyond the permission granted, the Council would have granted permission had they been applied for. The Council sought relevant information and reports in reaching this conclusion and I have found no fault in its decision making.

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Agreed action

60. Within four weeks of the final decision being issued, the Council has agreed to:
1. Apologise in writing to Ms X for the faults and injustice identified in this statement;
2. Pay Ms X £200 in recognition of the avoidable frustration and uncertainty identified in this statement; and
3. Remind officers conducting enforcement/noise nuisance investigations of the principles set out in the Ombudsman’s Guidance.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman