Summary: Mr X complains on behalf of five residents that the Council failed to consider the impact of construction works on them and failed to investigate their complaints about the disruption. The Council is at fault as it failed to record reasons why it discharged a planning condition but this does not call into question its decision. The Council delayed in taking action to ensure a footpath remained open and it has agreed to make a payment of £100 to each complainant to acknowledge the inconvenience caused which is an appropriate and proportionate remedy.

The complaint

1. Mr X complains on behalf of five residents. They complain that the Council:
1. Failed to properly consider the impact of construction works on residents and when granting planning permission for a large housing development which surrounds their bungalows
2. Failed to properly investigate residents’ complaints about the disruption from the works.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’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 have:
• Considered the complaint and the information provided by Mr X;
• Discussed the issues with Mr X and a resident;
• Made enquiries of the Council and considered the information provided;
• Viewed images of the site from the internet.
• Interviewed an officer of the Council to obtain more information;
• Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

6. When deciding a planning application, councils have to consider any material planning considerations raised by the applications. Material planning considerations are matters such as impact on light and privacy. Noise and disruption from construction works are not material planning considerations so councils cannot take this into account when determining the application.
7. The Openness in Local Government Bodies Regulations 2014 requires councils to provide a written record of certain decisions made by officers. The courts have confirmed that the regulations apply to delegated decisions related to planning applications (Shasha and ors v Westminster City Council (2016) EWHC 3283 (admin)). The record should include a record of the decision taken along with the reasons for the decision. These regulations apply to other planning matters such as decisions to discharge conditions.
8. The Ombudsman published guidance in September 2018 entitled ‘Recording planning decisions’ which provides there should be a clear record of a decision and the reasons for it.

What happened

9. Mr X complains on behalf of five residents, Mrs A, Mr B, Mrs C, Mrs D and Mrs E. The complainants live in sheltered accommodation on a residential road and are elderly or disabled.
10. The Council granted planning permission for a large housing development on land which surrounds the complainants’ properties. The planning permission was subject to a number of conditions including:

“Development shall not commence on any phase until details (including a site and compound layout plan) of access, storage, parking, loading and unloading of all contractors’ plant equipment, materials and vehicles for that phase have been submitted to and approved in writing by the local planning authority. The approved facilities shall be provided for the duration of the construction works.

To ensure the free and safe use of the highway”.

11. The developer submitted a construction method statement (CMS) and construction management plan (CMP) which showed the site layout. The CMS set out the working hours for the site including deliveries, that wheel wash facilities would be available for vehicles leaving the site and loads would be covered to minimise dust. It also stated that public walkways would be kept clear at all times unless permission had been given by relevant authorities to close these.
12. Officer 1, transport engineer, considered the CMS and CMP. The Council’s records state:

“The Construction Method Statement and plan have been reviewed and are considered acceptable, condition can be discharged”.

13. There is no record to show why officer 1 considered the information provided by the developer to be acceptable, including the location of the compound, for the free and safe use of the highway.
14. In March 2018 a representative of Mrs E complained to the Council about disruption from the construction works including lorries blocking the road and residents’ access to the shops. The Council’s records show officer 2, a planning compliance officer, contacted the developer by email. Officer 2 said she had visited the site and noted plant vehicles were using the road outside the residents’ properties as if it was part of the site boundary and appeared to have been doing so for some time. Officer 2 said residents should not have to risk life and limb when exiting their properties and this appeared to be the case.
15. Officer 2 had a site meeting with the developer. An email from the developer shows they undertook to provide wheel washing facilities to reduce dust, reduce the number of lorries and plant vehicles using the road outside the residents’ properties and backfill the footpath by the complainants’ properties.
16. Officer 2 notified Mrs E’s representative that the site entrance being used is the entrance intended for use for the early part of the development and the site was laid out as it should be so there was no breach of planning control. Officer 2 said the developer would construct a new road within eight weeks and site traffic would be directed down the new road. There is no evidence to show the developer has constructed a new road. The Council has said it could not enforce the construction of the new road as it was a voluntary agreement with the developer.
17. Mrs E’s representative continued to make complaints during May and June 2018 about lorries blocking the road outside Mrs E’s property and blocking access to the shops for disabled residents. Officer 2 advised Mrs E’s representative that the Council could not prevent lorries from visiting the site.
18. In August 2018 Mr X made a complaint on behalf of Mr B. The Council considered the complaint through its two stage complaints procedure. The Council did not uphold Mr B’s complaint so he escalated it to stage two of the complaints procedure. An officer visited the complainants who raised concerns about the developer starting work earlier than the permitted hours, the access by their properties used as the main entrance for heavy vehicles, the footpath outside the bungalow being closed for a period of time making it difficult for residents to access the shops, noise from the compound close to their properties and a significant level of dust. The Council did not uphold their complaints. But officer 3, regeneration officer, contacted the developer to raise residents’ concerns.
19. Officer 3 sent an email to Mr X following a meeting with the developer. Officer 3 reported the developer acknowledged the location of the compound was ill conceived and would look for an alternative access to it. Mr B continued to raise concerns about construction vehicles accessing the compound from the road outside his property and parking by Mrs A’s property.
20. The Council’s highways department notified officers in the regeneration team that the footpath between the residents’ properties and the shops should have maintained throughout the construction period. The Council contacted the developer and asked it to reinstate the footpath. The developer reinstated the footpath in December 2018 following further meetings with regeneration and compliance officers. The Council has said an alternative longer route was available for residents to use. The Council has provided an undated photograph which I understand Mr B sent to the Council in October 2018. This shows the alternative route was also closed.
21. In response to my enquiries the Council has acknowledged there were a number of issues around construction practices on the site. But it considers it has done all it could within the range of its powers to address the concerns raised.
22. The Council has also said it considered the CMP and CMS to be sufficient to discharge the condition as it contained sufficient detail. A key consideration for the Council is how construction traffic could safely access the site. The Council considered the access on the complainants’ road was acceptable as:

• The access via the complainants’ road was off a main distributor road which meant the traffic was concentrated on a main road.
• Although construction traffic would pass the complainants’ properties, it would affect fewer properties and involve fewer vehicular miles than other routes.
• The complainants’ road is of sufficient width to allow lorries to pass parked cars safely.
• The location of the compound was acceptable as it was close to the main distributor road and other compounds on site would be used as the development progressed.
• Residents had a direct access to the shops and their road is an adopted road so the developer and workforce could legally use the road.

23. The Council accepts the most direct pedestrian route to the shops was not maintained for a period of time during the construction works. It also acknowledges that officers did not deal with the closure as an enforcement complaint until November 2018 when it addressed the matter and the footpath reopened in December 2018. The Council has offered a payment of £100 to each complainant to acknowledge this.
24. The complainants consider the Council has not taken sufficient action to prevent the development from causing significant disruption to them. They say they have been caused distress and have not been able to attend medical appointments, therapy sessions or go to the shops due to the lack of safe access from their properties. Mrs A has said that construction traffic continues to block her access from her property and work is not in accordance with the permitted hours set out in the CMS. In response to my draft decision the complainants have raised further examples of where they consider the developer is not acting in accordance with the planning permission, CMP and CMS.

My assessment

Planning permission

25. The complainants consider the Council should have done more to protect them from the disruption of the construction works when granting planning permission for the development. I acknowledge the works have caused significant disruption and distress to the complainants. However, the Council cannot take into account disruption from building works when considering a planning application as it is not a material planning consideration. The Council imposed the condition for the developer to submit a CMP and CMS which should set out the hours of working and other mitigation measures. So, I am satisfied the Council did as much as it could do to mitigate the impact of the works on the complainants when granting planning permission for the application.

Discharge of condition

26. The Council’s records note it considered the CMS and CMP to be acceptable. So, the Council has a record of its decision but there is no record to show why the Council considered the details to be acceptable including the access and location of the compound on the complainants’ road and in close proximity to their properties. On balance, I consider this is fault. I note the Council’s view that retaining a record of its reasons for discharging conditions would be disproportionate. But an application to discharge a condition is a formal application. In accordance with the regulations the Council should retain a record of its reasons for its decision to discharge the condition together with the record of the decision.
27. The question for me is whether the Council’s failure to record its reasons for the decision to discharge the condition calls into question that decision. The Council has retrospectively explained its reasons why the CMP and CMS were adequate and why it considered the access and location of the compound on the complainants’ road to be acceptable. I note the comments by officer 2 and the developer regarding the impact of the construction traffic and location of the compound. But the Council’s explanation of why the location of access and compound persuades me that it properly considered whether the location of the access and compound met the purpose of the condition. I therefore do not consider the fault calls into question its decision to discharge the condition.

Footpath outside the complainants’ property

28. The developer closed the footpath outside the complainants’ properties which meant they did not have their usual direct access to the shops. Correspondence between the developer and officer 2 following her site visit in April 2018 refer to the closed footpath. The closure was also not in accordance with the CMS which provided public walkways would be kept open unless the relevant authorities had given permission to close them. So, the Council should have pursued the closure of the footpath with the developer in April 2018 and its failure to do so is fault.
29. The Council has acknowledged it did not address the closure of the footpath until November 2018. It has said this was due to a lack of staff resources. The Council has undertaken to apologise and make a payment of £100 each to the complainants. The question for me is whether this is an appropriate and proportionate remedy.
30. On balance, I consider it is likely the developer would have reinstated the footpath sooner if the Council had challenged the developer on its closure. However, I have to take account of the fact the developer provided an alternative route to the shops during this time. I acknowledge this route was longer and the complainants had to cross the road used by construction traffic to use it but they had access to the shops. But I also note there is photographic evidence to show the alternative footpath was also closed on at least one occasion between April and December 2018. So, I consider the complainants were caused inconvenience by the closure of both the usual footpath and the alternative route. The Council’s offer of £100 each is appropriate and proportionate to acknowledge the time and trouble caused.

Complaints about other breaches of planning permission

31. The Council properly investigated the complainants reports of dust and nuisance caused by construction traffic. However, the complainants continue to complain that the developer is carrying out work outside of the permitted hours set out in the CMS and have raised a number of other new issues about the works. The complainants should report any breaches to the Council for it to consider investigating if the developer is carrying out the construction works in accordance with the CMP and CMS. The Council may also wish to check whether the works are being undertaken in accordance with the CMP and CMS.

Agreed action

32. The Council should:
1. Send a written apology and make a payment of £100 each to Mrs A, Mr B, Mrs C, Mrs D and Mrs E for the inconvenience caused by the Council’s delay in dealing with the developer wrongly closing the footpath outside the complainants’ properties between April and December 2018. The Council should send the written apologies and make the payments within one month of my final decision.
2. Review its procedures to develop as simple and efficient way to succinctly record reasons for approving applications to discharge conditions. The Council should take this action within three months of my final decision and explain to the Ombudsman the action it will take to improve its performance in this area.

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Final decision

33. The Council is at fault as it failed to record reasons why it discharged a planning condition but this does not call into question its decision. The Council delayed in taking action to ensure a footpath remained open and it has agreed to make a payment of £100 to each complainant to acknowledge the inconvenience caused which I consider to be an appropriate remedy. I have, therefore, completed my investigation.

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Investigator's decision on behalf of the Ombudsman