The Ombudsman's final decision
Summary: We did not find fault with the way the Council investigated Mrs X’s reported noise nuisance and breach of planning control.
The complaint
Mrs X complained about the Council’s response when she reported planning control breaches and noise nuisance from a neighbouring property.
Mrs X said this caused her a loss of amenity and significant distress. She also said the delays in the Council’s complaint handling caused her additional time and trouble.
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 spoke to Mrs X and considered the information she provided with her complaint. I made enquiries with the Council and considered its response with relevant law and guidance.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and guidance Planning Planning permission is required for the development of land (including its material change of use).
Planning permission may be granted subject to conditions relating to the development and use of land.
Planning permission may be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.
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.
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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
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) Noise nuisance Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
Typical things which may be a statutory nuisance include: noise from premises or vehicles, equipment or machinery in the street smoke from premises smells from industry, trade or business premises artificial light from premises insect infestations from industrial, trade or business premises accumulation of deposits on premises 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.
There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) 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.
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.
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 What happened What follows is a brief chronology of key events it does not contain all the information I reviewed during my investigation.
Mrs X lives near a business premises. The business premises applied for planning permission in 2018. The Council granted planning permission with conditions.
In 2020 Mrs X reported alleged planning breaches and noise nuisance to the Council. She complained about the operating hours, noise and disruption caused by vehicles coming and going from the premises.
The Council wrote to the business owner and reminded them of the condition relating to the operating hours. It was satisfied with the owners response and closed the case.
In March 2021 Mrs X reported noise nuisance from the business. The Council’s environmental health team opened a case, spoke to Mrs X and sent her diary sheets to record the dates/ times and details of the alleged noise nuisance. The officer wrote to the owner about the noise complaint. The planning enforcement team opened another case to investigate the alleged planning breaches.
Planning enforcement found that two of the planning conditions had not been discharged. These related to a loading/ unloading area and noise. It wrote to the owner about compliance.
In April Mrs X returned the diary sheets and the officer arranged to attend her property. They did not witness a noise nuisance.
In May the planning enforcement team asked Mrs X to complete diary sheets for the alleged planning breaches of operating hours. It also explained why it could not amend the conditions.
In June Mrs X wrote to the Council about the ongoing issues since the officers visit. She also asked for an update on the outcome of the enforcement investigations. She complained about the delays responding to her emails.
Between July and September there was ongoing correspondence between Mrs X and the Council about the planning enforcement and noise nuisance issues. In September environmental health suggested they install noise monitoring equipment at her property.
In October planning enforcement issued a planning contravention notice (PCN) to the owner with a series of questions for them to answer.
In October environmental health asked Mrs X if she would like to have the noise monitoring equipment installed for another two weeks because Mrs X told the Council it had been unusually quiet when it was previously installed. The Council decided there was no evidence of a statutory nuisance from the first set of recordings it reviewed.
The business owner responded to the PCN and answered all the questions.
The Council installed noise monitoring equipment in November and December. It did not find any evidence of a statutory noise nuisance and closed the case.
In January 2022 Mrs X emailed the Council with a list of days and times where she said they experienced noise nuisance from the business. Mrs X complained about the outcome of the environmental health investigation. Mrs X also complained about the planning enforcement investigation into the alleged planning control breaches.
The Council’s complaint response explained what it considered and why it did not find evidence of a statutory noise nuisance. It acknowledged Mrs X said it had been quieter than usual and it offered to install the noise monitoring equipment for a fourth time.
Planning enforcement also responded to Mrs X’s complaint. It explained that although there was some activity outside of the operating hours it ‘did not consider it was appropriate or reasonable to instigate formal enforcement action’.
Mrs X was unhappy with the responses and asked for her complaint to be considered at stage two of the Council’s complaint process. The Council did not uphold Mrs X’s complaint. It explained the findings from the planning and environmental health investigations. It agreed it was not expedient to take any action in relation to the minor breach that was identified.
Mrs X remained unhappy with the Councils actions and response. She complained to the Ombudsman.
My findings
Planning control breaches I did not find fault with the Council. Mrs X reported alleged breaches of the planning conditions that were imposed on the business owner when planning was approved.
I asked the Council for evidence the planning conditions had been discharged. The Council found there were several conditions that had not been discharged. This does not automatically result in action against the landowner because the Council considers the proportionality and necessity of any action it takes.
The main condition relevant to this complaint was in relation to the noise management. In its response the Council explained: ‘… given the information regarding operational protocols provided in response to the Planning Contravention Notice, and the outcomes of the investigation by Environmental Protection (that the evidence from locating a sound monitor at site did not demonstrate a statutory nuisance), we have concluded that the absence of a “noise management scheme” and formal discharge of the condition is not so serious as to warrant formal enforcement action’.
It investigated the alleged breaches. It found evidence of minor breaches but decided it did not warrant formal action. The Council is entitled to make this decision providing it has properly considered all the relevant information. Where there does not appear to have been fault with the way the decision was made we would not question the professional judgement of the decision maker.
Noise nuisance I did not find fault with the way the Council investigated Mrs X’s reports of alleged noise nuisance.
The Council investigated the noise complaint. It installed noise monitoring equipment on four separate occasions over an eight-month period. It considered all the information Mrs X provided. It did not find evidence of a statutory nuisance.
I understand Mrs X is unhappy with the Council’s decision but as there was no fault in how the decision was reached, I cannot question the professional judgement of the officers involved.
Complaint handling and delays I did not find evidence of unnecessary delays. The noise and planning investigations were carried out over a period of months but there was ongoing correspondence between the Council, Mrs X and the business owner during this time.
When Mrs X complained following the case closure decisions the Council responded at stage one and two within the period set out in its complaint process.
Final decision
I did not find fault with the Council. I completed my investigation.
Investigator's decision on behalf of the Ombudsman