The Ombudsman's final decision
Summary: Mr C complains about the way the Council’s dealt with Saturday construction work and other matters on a nearby development resulting in noise and disturbance for longer than necessary. We have found fault by the Council but consider the action it has already taken of an apology and improvements to procedure provide a suitable remedy.
The complaint
The complainant, whom I shall refer to as Mr C, complains about the way the Council’s has dealt with Saturday construction work on a nearby development. Mr C says the Council assured residents this would only be in exceptional circumstances and the approved construction environmental management plan also stated there was no intention to work on Saturdays and prior approval would be sought if necessary. However, the Council separately provided consent under section 61 of the Control of Pollution Act 1974 for work every Saturday until completion of the development without advising residents or the planning enforcement team.
Mr C also complains the Council allowed the use and retention of COVID-19 isolation cabins on the site and accepted these were required when the relevant guidance did not say this was the case. Mr C says the Council allowed the cabins to block the approved access route for the site for 14 months.
Mr C also complains the Council failed to provide a satisfactory response to his complaint and contrasts the response he received with that sent to his wife which accepted there had been some fault and provided an apology.
Mr C says because of the Council’s fault, he suffers from noise and disturbance from Saturday working and suffered from noise from reversing alarms and site traffic during the period the approved route was not in use.
The Ombudsman’s role and powers
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) 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) 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)
How I considered this complaint
I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.
What I found
Background and legislation Planning enforcement Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.
Section171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined as: the carrying out of development without the required planning permission; or failing to comply with any condition or limitation subject to which planning permission has been granted.
Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.
Relevant planning history The Council granted planning permission in 2015 for the demolition of existing office space to build a part six and part seven storey mixed residential and commercial development subject to conditions. The conditions included the requirement for method of demolition and construction statements.
Key events Mr C’s home is close to the above application site.
The Council received an application under section 61 of the Control of Pollution Act 1974 in April 2020 in relation to the development. The works were expected to be between May and November. This application stated working hours as being Monday to Friday 8am to 6pm and Saturdays 8am to 1pm. The Council gave approval in April for the works between these hours.
Mr C says work started on site in late April.
Mr C says his local Councillor wrote to residents in mid-August about the development and provided assurances that any Saturday working was only by prior agreement and if absolutely necessary. The Council has not been able to provide the Ombudsman with a copy of this letter but does not dispute it was sent or the nature of its content.
The Council approved a construction environmental management plan (CEMP) towards the end of August. This stated at page 39 under the heading ‘working hours’ that noisy construction work which would be audible at residential properties would generally only take place Monday to Friday between 8am and 6pm and Saturday 8am to 1pm when required. It is noted the developer did not intend to use the Saturday working period during the demolition phase or the new build main building fabric phases and these hours would only be used by prior agreement. It also contained provision the developer would use the section 61 process for any noisy or out of hours working. The Council formally discharged various conditions including the method of construction statement in September.
Mr C emailed the Council towards the end of February 2021 to say there had been a single incident of Saturday working at the site. The Council confirmed to Mr C that it had contacted the developer to remind it of the CEMP and the developer had apologised. The Council took no further action as it considered the matter had been resolved informally. I see no fault in the Council’s approach here. Addressing potential breaches of planning control without formal enforcement action can often be the quickest and most cost effective way of achieving a satisfactory outcome.
Mr C contacted the Council about the placement of COVID-19 cabins affecting the route of construction traffic at the beginning of July. The Council responded to Mr C to explain it had contacted the contractor about the matter who confirmed the use of the rear service lane was restricted because of the installation of the cabins. The contractor had explained it was mitigating concerns by using both two other entrances to the service lane along with a bus lane (after agreement by Transport for London) and this combined with the use of two on site cranes reduced the need for vehicles to enter the site although it had introduced increased marshalling. The contractor also noted there would be a notable reduction in the volume of trucks coming to the site over the following two to three weeks. The Council decided to take no action at this stage.
Mr C contacted the Council in early September to ask about the Saturday working being proposed by the developer. The Council noted the contractor had not started any Saturday construction activity at that stage but explained it was open to the developer to submit a revised CEMP for the Council’s consideration. However, the Council explained that a ministerial statement made on 13 May 2020 confirmed that where there was only a short term or modest increase to construction hours, local planning authorities should not seek to undertake enforcement action. The Council explained that it considered Saturday morning working or a small increase either side of normal construction hours during the working week would constitute a ‘short term and/or modest increase’ to those prescribed by the approved CEMP. The Council provided a link to the relevant ministerial statements. The Council also highlighted that its own website provided standard allowed construction hours as being Saturday 8am-1pm and Monday-Friday 8am - 6pm.
The Council provided an update to Mr C in early October to say that Saturday working was allowed between 8am and 1pm as it had previously granted a section 61 application. The Council apologised for any confusion caused.
Mr C contacted the Council during October about Saturday working and the use of COVID-19 cabins at the site. The Council provided a further explanation about Saturday working, the CEMP and S61 agreement and an apology for any confusion caused to Mr C for conflicting advice towards the end of October.
The Council sought advice from its public health team about the location of the COVID-19 isolation cabins and site layout which was restricting the use of a vehicular contraflow system on the site. It was agreed there was a rationale for placing the cabins in the location indicated in order to achieve infection control.
The Council wrote to Mr C at the end of October to reiterate its previous information about the COVID-19 cabins. There was also a meeting between the Council, residents and the developer towards the end of October which Mr C attended which discussed both the use of COVID-19 cabins and Saturday working and the impact of the section 61.
Mr C complained to the Council in early October about its failure to answer various questions. Mr C says he would be making a separate complaint about the issue of Saturday working. Mr C subsequently complained to the Council in mid-October about the way it had allowed Saturday working at the site.
The Council provided a response to Mr C at Stage 1 of its complaint procedure in early November. This response refers both to Mr C’s complaint about breaches of planning control at the site and his subsequent contact about Saturday working. The Council refers Mr C to the previous responses it had provided about both Saturday working and COVID-19 cabins. The Council accepted incorrect information was provided about Saturday working and noted it had apologised for this.
Mr C sent a reminder to the Council in November as he did not consider it had properly responded to his complaint about Saturday working.
The Council provided a response to Mr C at Stage 2 of its complaints procedure in mid-December. This provided a further response about Saturday working and the use of COVID-19 isolation cabins. This response provided the Ombudsman’s details if Mr C remained unhappy with the outcome.
The Council provided a response to Mr C’s wife about the same matters shortly afterwards. This response refers to section 61 applications in April and October 2020 and accepts officers were not ‘sighted’ on the CEMP but it was reviewing how to keep its Public Protection Service updated on any CEMP. The Council also accepted the CEMP and previous assurances by the developer may have led to miscommunication and provides an apology.
Although I note the slightly different content and tone of the Council’s complaint response to Mr C’s wife, I also note the Council’s previous explanation and apology provided to Mr C. I do not consider there was fault in the way the Council responded to Mr C’s complaint.
The Council sought further advice from its public health team during December about the COVID-19 cabins. It was noted the guidance had evolved including the availability of tests which could be taken at home by construction workers. The Council reviewed whether there remained an ongoing need for onsite isolation cabins and considered the risk of onsite transmission could be mitigated through testing and a smaller room on site may now be sufficient when combined with regular testing and cleaning of infected areas. The Council wrote to the developer in January 2022 about their COVID Health and Safety Procedures and the use of isolation cabins. The developer confirmed the isolation units were to be removed from the site shortly.
My consideration I should explain that councils have no duty to monitor development. They are dependent on members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate. We cannot investigate the actions of the developer only the response of the Council to any reports. Councils have power to enforce but they have no duty to do so. Moreover, if a council decides that enforcement action is appropriate, it is obliged to follow government guidance which says that any action it takes should be proportionate and commensurate with the breach of control to which it relates.
I am satisfied the Council responded to Mr C’s report about COVID-19 cabins affecting the approved access route. The Council confirmed the location of the cabins meant a breach of the CEMP. The Council contacted the developer and considered the action it was taking to mitigate any impact on residents was sufficient. The Council also took advice from its public health team. The Council has provided cogent reasons for allowing the use of COVID-19 cabins at the particular location and not taking formal enforcement action. This is a decision the Council is entitled to take.
In relation to Saturday working, the Council has already accepted there was some miscommunication about this issue. The Council’s initial response to Mr C in September 2021 only referred to the CEMP and how the Council may approach any request to revise this. It was not until October that the Council provided a further explanation to Mr C about the impact of the section 61 application. It is also clear the CEMP and earlier communications in the process providing assurances about Saturday working unreasonably raised Mr C’s expectations.
In its response to the Ombudsman, the Council advised it has completed a review of the complaint and taken the following action. In future, its Public Protection team will consult its Planning Enforcement team on all relevant section 61 applications to ensure Planning Enforcement are aware of their existence for particular sites and can provide Public Protection with any relevant information such as approved CEMPs to assist their determination. The Ombudsman would welcome this action.
I consider the apology already provided by the Council to Mr C together with the action outlined above provides a suitable remedy and we would not seek more.
Final decision
I have completed my investigation as I have found fault by the Council but consider the action it has already taken above provides a suitable remedy and the Ombudsman would not seek more.
Investigator's decision on behalf of the Ombudsman