Summary: Mr X complains the Council failed to consider the effect on his residential amenity when determining a planning application on land behind his property. He also complains about nuisance from the building works. The Council did consider the impact of two storey properties behind his bungalow and took the view the relationship was acceptable in terms of privacy, outlook and overlooking. It did respond to the complaints about noise, out of hours working and dust. While it issued a breach of condition notice it did not take further formal action.

The complaint

1. Mr X complains the Council failed to consider the effect on his residential amenity when determining a reserved matters application for development on land behind his property. He says this has destroyed his privacy. He also complains the Council failed to take action to control the building works in terms of the hours of operation and dust nuisance.

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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. 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

4. As part of the investigation, 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;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and invited their comments.

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What I found

5. The Council approved an outline planning application for residential development on land to the rear of Mr X’s property. The Council says that although the site was outside the settlement boundary, the Council did not refuse the application on a matter of principle because it also had to balance the requirements to have a suitable housing supply.
6. The Council considered the reserved matters application five years later. Mr X believed that bungalows would be built adjacent to his rear boundary but the approved reserved matters application sited two storey properties there. Mr X lives in a bungalow.
7. The Council considered the reserved matters application under delegated authority in consultation with local councillors. A delegated decision report was prepared. This shows that consideration was given to the local plan and relevant planning policy.
8. The Council considered the objections submitted by Mr X and other residents. The report shows the objections made included that the height of the proposed dwellings will harm the residential amenity of surrounding dwellings by virtue of loss of light and privacy as well as that the two storey dwellings will not fit in with the character of the existing bungalows on Mr X’s road.
9. The Council’s delegated decision report noted that third parties had raised concerns about the introduction of two storey dwellings adjacent to the existing bungalows. However, it stated that officers were satisfied there was significant variety in the design and scale of nearby dwellings and took the view that locating two storey dwellings adjacent to existing bungalows would not result in any harm to the character of the area. It said a policy in its local plan requires that development should provide an adequate level of privacy, outlook, sunlight and daylight, and should not be unduly overbearing. The Council’s position was that the garden areas and separation distances would ensure appropriate levels of privacy and amenity for existing and future residents. The Council also decided that permitted development rights of extensions and roof alterations should be removed for the new properties in order to maintain the appropriate levels of privacy and amenity.
10. Development on site began in January 2019. Mr X began complaining about the works in February. The Council said it would treat his complaint as an enforcement issue. In April, an email from the Council to Mr X provided details of the usual permitted hours of work and it asked Mr X to report any problems to it. It also gave Mr X details of how to report problems of excessive noise and dust to its Regulatory Services who have responsibility for nuisance problems that cannot be dealt with as a planning issue.
11. The Council served a breach of condition notice on the developer in May 2019. The notice gave details of several of the planning conditions the developer had not adhered to. This included a condition requiring the submission of an environmental management plan which should provide details of operation hours, contractor parking, noise and mud suppression. This plan should have been submitted and approved prior to work starting on site.
12. The developer did submit the required management plan for approval. The Council asked the developer to reduce the operation hours slightly.
13. Mr X complained about dust issues and in July the developer acknowledged there were dust problems but said it could not control this due to the nature of the work and weather conditions.
14. In August the Council asked the developer to ensure there is a jet wash and brushes on site to control mud as well as dust suppression bowsers during dry weather. It also reminded Mr X that issues relating to dust clouds should be reported to Worcestershire Regulatory Services to determine if a statutory nuisance exists. The Council copied the email to an officer at regulatory services.
15. The Council emailed Mr X on 5 September saying it understood the matter was being investigated by regulatory services to determine if the dust was a statutory nuisance. Mr X had mentioned another resident was also suffering due to the dust. The Council said other residents should also contact regulatory services so it could be included in the investigation.
16. The Council also stated it had received reports of work beginning on site before the approved time. The developer asked the Council for clarification on whether preparatory and enabling works were permitted outside of the approved hours. The Council responded saying this was a matter of fact and degree and that it would judge each occurrence in terms of the nuisance caused to local residents. It said starting vehicles or machinery would not be acceptable and that it would investigate any reports on an individual basis looking at the harm caused.
17. Mr X reported further breaches of the working hours in December. The Council contacted the developer about this. A week later it contacted the developer again saying there had been further reports and it asked it to review this as a matter of urgency. The Council also said it would be passing the matter to its legal team for advice. The developer responded denying any breaches of the working hours and said it had reported the matter to its board for a top level response.
18. Notes provided by the Council show that it decided to wait for the Board response before seeking legal advice. The notes go on to say that as no further reports of out of hours working have been received there is no need to progress to the legal team as it appeared the developer was adhering to the specified hours. The note says the matter will be kept under review.
19. I have not seen any evidence to suggest Mr X reported further breaches after December 2019.

Analysis

20. Mr X complains the Council failed to consider the effect on his residential amenity when determining a reserved matters application for development on land behind his property.
21. I am satisfied the Council properly advertised the reserved matters application and gave Mr X the opportunity to submit objections. The delegated decision report shows that a concern raised was the positioning of two storey properties close to the boundary of existing bungalows. I am therefore satisfied the Council did give specific consideration to this matter.
22. The delegated report shows the Council considered the appropriate policy on residential amenity and took into account the size of gardens and the resulting separation distances between the existing and proposed properties. The Council took the view the relationship would be acceptable. It also added a condition to remove permitted development rights on the new properties in order to maintain this in the future.
23. The Ombudsman is concerned with administrative process and not the merits of decisions properly taken even though people may disagree with them. I appreciate Mr X may not agree with the professional judgement taken by the Council in this case but the evidence shows it did consider the impact of the two storey properties and decided it would be acceptable. In the absence of any evidence of fault in how the Council came to this view, I am unable to criticise the decision made.
24. Mr X also complains about impact on him when the works were being carried out. Mr X says he was affected by noise from the works at unsociable hours and dust nuisance.
25. The information provided shows there were times when the developer did carry out works at times it should not have and had difficulties controlling the dust. I am concerned with the actions of the Council in response to these complaints by Mr X and not the actions of the developer.
26. The information provided shows the Council was in contact with the developer about the breaches of condition. In respect of the noise and dust, there was a condition requiring the developer to submit an environmental management plan prior to works beginning on site. The developer did not do this. In May the Council therefore issued a breach of condition notice as the start of formal enforcement action. This did result in the approval of the plan and confirmation of the operation hours and dust management measures.
27. I have seen evidence that shows the Council did contact the developer when Mr X reported breaches of the permitted working hours. It appears this did have some effect as the complaints by Mr X stopped for a period of time. However, in December 2019, the Council told the developer it would be seeking legal advice because of the continued complaints from Mr X. In the end, no further enforcement action was taken because the Council did not receive any further complaints from Mr X.
28. I appreciate it was frustrating for Mr X when the developer worked outside of the permitted hours and caused a nuisance. However, the evidence provided indicates the Council did act on Mr X’s reports and took action with the developer. I am satisfied the Council has to use its professional judgment on how to deal with such complaints and at what point to move to more formal action. In December, after further reports were made it did indicate it would be moving to legal action but it has explained why this did not happen. I find no fault in how the Council dealt with Mr X’s complaints about out of hours working.
29. Mr X also made some reports of dust on site. I am satisfied the Council did respond to these reports although I appreciate Mr X may not have been satisfied with the response and level of action taken. The information provided shows the Council did raise the issue of dust with the developer and checked there were bowsers on site to damp down. There is an email from the developer indicating the problems that it was experiencing due to the site and weather conditions.
30. The Council also involved Worcestershire Regulatory Services. As well as forwarded emails to this service, it advised Mr X to make complaints about the dust to that service for consideration of whether a statutory nuisance existed. I have seen an email that shows the Council first passed on information about regulatory services in April. I am not persuaded there is fault causing a significant injustice in the way the Council dealt with the dust complaints.

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Final decision

31. I will now complete my investigation as there is no evidence of fault causing a significant injustice.

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Investigator's decision on behalf of the Ombudsman