Summary: Mrs F complains the Council failed to take planning enforcement action after she reported breaches of planning conditions on a development site next to her home. We have found no fault in the way the Council decided not to take enforcement action.

The complaint

1. Mrs F complains the Council failed to take planning enforcement action after she reported breaches of planning conditions on a development site next to her home. She also complains there were flaws in the Council’s granting of planning permission.
2. Mrs F says as a result her and her family were caused significant disruption, damage to property and distress during the construction works which has affected their mental health.

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What I have investigated

3. I have investigated enforcement since construction started in autumn 2020. I explain at the end of this statement why I have not investigated the granting of planning permission in 2019.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. I spoke to Mrs F about her complaint and considered the information she sent and the Council’s response to my enquiries.
8. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Planning conditions and construction management

9. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Councils often impose construction management planning conditions on approvals for major developments. Whilst these cannot ensure the impact on residents of major development is avoided entirely, they are aimed at reducing the impact and disruption caused by, for example:
• long working hours on construction sites;
• nuisance from noise, dust, smoke and vibration; and
• traffic from construction vehicles.
11. Failure to adhere to construction management plans during the course of the development could constitute a breach of planning control.

Planning enforcement

12. 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.
13. 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.
14. 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)
15. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

What happened

16. I have set out the key events leading to Mrs F’s complaint. This is not intended to show all the correspondence between Mrs F and the Council.
17. In 2019 the Council’s planning committee resolved to grant planning permission to a developer to build houses on land next to Mrs F’s home, subject to conditions and a legal agreement about the number of affordable houses and open space. One of the conditions was that a construction management plan should be approved prior to construction starting.
18. When the legal agreement had been made, planning consent was granted in September 2020 and the Council issued the decision notice. Construction started and the developer submitted a construction management plan in October which the Council approved, discharging the condition, on 11 November 2020. The construction management plan says it must be complied with and compliance would be monitored by the developer.
19. Access to the development site was through land that included Mrs F’s driveway. This land was owned by the developer but Mrs F had a right of access. Mrs F says that when works on the site started, the developer was unaware she had a right of access, had not consulted with her beforehand and informed her she would be unable to use her driveway for 16 weeks as it would be dug up.
20. Once construction started, Mrs F started to raise concerns with the developer and local parish council about problems which appeared to be breaches of the construction management plan. For example:
• Trip hazards outside her home caused by the works on the driveway.
• Dangerous construction traffic, with large vehicles reversing and turning in narrow roads causing a hazard to residents and blocking in residents’ vehicles, in particular Mrs F’s.
• Damage caused by vehicles to pavements, walls and hedges.
• Damage to homes, with cracks appearing.
• Dust, noise and vibrations.
• Health and safety issues.
• Working after 5pm.
• Trespass on her property.
• Replacing fencing outside her home with no warning.
• Trees not being protected during construction.
21. Mrs F says the problems were not dealt with by the developer so she contacted the Council. She also raised possible breaches of planning control, including:
• Work had started before permission was granted.
• Wrong or no fencing.
• Surface water drainage problems.
• Concern about materials being used, as the bricks on neighbouring new houses were a different colour to the approved plans.
• Trees had been felled contrary to the approved plans.
• Bird, bee and bat boxes not installed or were in wrong locations.
• Clearance of vegetation prior to the ecology plan being agreed.
• One plot had possibly been built too close to a neighbour.
• A maintenance gap not on the plans had been left between a neighbour’s home and the development site, causing a concern it would attract rubbish and antisocial behaviour.
22. In April 2021 the Council alerted the developer to the complaints about breaches of the construction management plan. The developer replied with the actions it was taking, for example a banksman would coordinate turning and construction traffic; extra parking off site had been agreed; a water bowser had been put on site to damp down the roads; and workers would be reminded of the working hours.
23. Issues were also discussed at meetings arranged by the local parish council with the developer and residents. The Council attended two of these meetings. Mrs F says the Council did not reply to her or the parish council until July.
24. In July the Council registered Mrs F’s concerns as a complaint. It replied saying that, although construction matters were not covered by the planning process, it was seeking to resolve residents’ concerns with the developer. Continuing problems caused by construction traffic had been reported to the developer, a gateman had been reinstated, and additional barriers had been put in place to prevent kerbing by vehicles.
25. The Council had reminded the developer not to work beyond the approved hours, though it noted to Mrs F that the Government had brought in additional allowances for construction sites throughout the pandemic, allowing some to operate until 9pm.
26. In October Mrs F asked about escalating her complaint and wrote summarising her concerns on 3 November. She sent photos and videos of the lorries outside her home and other issues with the development.
27. The Council replied to the complaint on 7 December. It said it appreciated construction had caused significant disruption and said the site had not been managed as it should. The Council had limited powers in relation to construction site management and construction management plans were difficult to enforce against. It had passed on residents’ concerns to the developer and attended the parish council meetings to discuss what could be done to resolve matters.
28. In relation to the construction traffic, it was for the developer to ensure that any construction route was suitable and any obstruction by vehicles was a police matter. However, the Council had encouraged the developer to address the problems.
29. Issues about Mrs F’s driveway and damage to property were a civil matter between residents and the developer.
30. In relation to the potential breaches of planning permission, the Council said:
• Officers would check if the fencing and drainage was in accordance with the plans. Highway drainage would be dealt with before the road was adopted by the Council.
• The materials used, including the bricks on new houses next to Mrs F’s home, were in line with the condition that had been approved.
• Officers apologised that some trees had not been protected and that bee boxes had been installed incorrectly; it had asked the developer to move these.
• Site clearance was unlikely to have required planning permission and the Council had not considered it necessary to take enforcement action. Any potential harm to ecology prior to the discharge of the planning condition was a matter for the police.
• The maintenance gap had been discussed with the resident and a compromise found.
31. Mrs F remained dissatisfied and came to the Ombudsman. She said the situation had led to them deciding to move house.
32. In response to my enquiries, the Council said not all of the issues raised by Mrs F were breaches of planning control or they had been resolved:
• Acoustic fencing had been put in place.
• The developer had requested some trees were removed as a resident’s insurer was concerned about property damage.
• The location of bee bricks had been addressed by the developer.
• The surface water drainage issue related to a drain within what would become part of the adopted highway. It would be addressed through the technical approval process under S278 of the Highway Act.
33. The Council therefore said there had been no reason to consider the need for enforcement action on these matters. In response to my draft decision, Mrs F said the issues were still not resolved.

My findings

34. I acknowledge that the situation during construction has been very difficult for Mrs F, her family and other residents. They have effectively had to live on a building site and have been caused significant disruption. However, councils are not responsible for the management of construction sites, this is the developer’s responsibility. Councils may take enforcement action against breaches of the construction management plan and other conditions, but enforcement is discretionary. I have therefore considered how the Council decided whether to take enforcement action.
35. I have seen evidence that from April 2021 the Council was aware of breaches of the construction management plan and was in regular contact with the developer about them. The developer told the Council it was taking action to address the problems. I have seen the Council replied to Mrs F in April 2021 and attended a site meeting in July. Following this it corresponded with Mrs F. There is no evidence of significant delays by the Council.
36. In response to my enquiries, the Council said it decided not to take enforcement action about the construction management plan “because at all times there was a willingness of the developer to actively engage (including participation in meetings with the local residents) and in seeking to provide the appropriate information or response to the points raised to them by the Council officers when seeking clarifications.”
37. Similarly, it considered the other potential breaches but found they were either not breaches or that the issues were being resolved by the developer. This includes the issue of the maintenance gap next to a neighbour’s home.
38. These are decisions the Council is entitled to take. The Council was aware of the potential breaches, took informal action by seeking assurances from the developer and considered the harm caused to the public. It decided not to take enforcement action.
39. Whilst I appreciate the frustration caused to Mrs F, the Council followed the decision-making process we expect and so there was no fault in the way the Council decided not to enforce. As there was no fault, I cannot question its decision.
40. In relation to Mrs F’s driveway, it was the developer’s responsibility to notify her of the works, and any trespass or damage would be a civil matter between the developer and Mrs F.

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Final decision

41. There was no fault by the Council. I have completed my investigation.

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Parts of the complaint that I did not investigate

42. I have not investigated the Council’s granting of planning permission. This is because the law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. I consider it would have been reasonable for Mrs F to complain to the Council about the planning permission in 2019 or in September 2020. (Local Government Act 1974, sections 26B and 34D, as amended)

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Investigator's decision on behalf of the Ombudsman