The Ombudsman's final decision
Summary: Mrs Y complained the Council failed to take enforcement action when the owner of a business premises started work to refurbish it. She said the Council did not properly consider that the owner breached a section 106 agreement. As a result, she says this caused significant distress, and affected her family’s wellbeing. We found no evidence of fault by the Council.
The complaint
The complainant, whom I shall refer to as Mrs Y, complains the Council failed to take enforcement action against the owner when she reported breaches of the section 106 agreement which applied to the premises. In her view the Council ignored the breaches to the legal agreement, and wrongly conflated the planning application and the enforcement of the agreement.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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 have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mrs Y and the organisation had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Law and guidance Planning permission Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
Planning considerations include things like: overlooking and loss of privacy; noise; traffic; and the impact on neighbouring amenity.
Planning considerations do not include things like: views over another’s land; the impact of development on property value; and private rights and interests in land.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
Section 106 agreements Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.
A party to section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force.
If an applicant disagrees with the Council’s decision regarding an application to modify or discharge a section 106 agreement they may appeal to the Planning Inspectorate.
Enforcement 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.
What I found
What follows is a brief chronology, in which I have set out the key issues and events. It is not necessary for me to detail everything that happened.
Mrs Y’s home is within a large housing development. It was built after the light industrial building (“the premises”). When the housing developer applied for planning approval for the housing development, it signed section 106 agreement with the Council and the owner of the premises.
The section 106 agreement set out certain conditions for the owner of the premises, particularly with regard to Area Z, an area of hardstanding to the side of the premises. The conditions for the premises’ owner included: It “shall not make any alterations to the external appearance of the elevation of the premises that faces on to the Land without the prior written consent of the Council”; It “shall not use the premises other than for uses falling within Class B1 of the Town and Country Planning Use Classes Order 1987 which do not generate any more noise, vibration, smell, fumes, smoke, soot, ash, dust or grit than are produced by the use carried on at the date of this Agreement as evidenced by [the noise report]”.
It “shall not use Area Z, other than for the purpose of providing pedestrian and vehicular access associated with the Owner's business on the Retained Land” It “shall not store any goods, materials, equipment, skips, refuse or any other items within Area Z.
all vehicles using Area Z to load or unload any goods, equipment, materials or any other items shall be backed up to the loading doors marked ["X"] on the Obligation Plan before any loading or unloading commences.
In 2020 the owner of the premises submitted a planning application to the Council to refurbish it and add a mezzanine floor with a new window along the side of one elevation. The new mezzanine floor was intended for office use.
The Council consulted adjacent residents regarding the planning application. However, within a few days the owner had started the works on the premises.
Mrs Y complained to the Council that the owner was breaching the section 106 agreement. She said that: A worker had been elevated to a height to work on the premises and had peered into her home for several minutes.
The work to the premises caused significant noise, vibrations and odours.
The owner placed heavy machinery in Area Z and cars were parked there, but it should not be used for storage or parking due to the section 106 agreement.
Mrs Y contacted the Council several times over the next two weeks chasing a response and reporting further noise and disturbance as well as use of Area Z.
The Council opened an Environmental Health investigation file. An officer contacted Mrs Y two days after she asked the Council to consider if noise from the works was a statutory nuisance. He advised her that it was unlikely the Council could take action under The Environmental Protection Act 1990 as Mrs Y suggested, because the noise was temporary in nature. He visited the site 14 days after the first report, but did not witness noise from the works.
The Council also opened a planning enforcement file. An officer visited the site within 14 days of Mrs Y’s report. He noted that the owner was using Area Z to store materials, for parking and it now contained a site compound. He advised Mrs Y that he would reply within a few days.
The planning enforcement officer contacted the premises owner about the use of Area Z for storing items. Referring to the section 106 agreement, he said “this infringement of the legal agreement is a serious matter and I suggest you regularise this infringement as a matter of urgency”. The Council said items could be relocated elsewhere and said that the Council could take enforcement action.
The planning enforcement officer advised Mrs Y that the storage use of Area Z was contrary to the S106 agreement. He said he had notified the owner who had agreed to reconfigure the site in order to comply with the S106 agreement.
The Council’s planning enforcement notes show the owner cleared Area Z. However, a generator was later installed, further items stored and vehicles parked within Area Z. The Council’s officer advised the owner to cease the use of Area Z. The owner agreed to move items within the premises. The Council later visited and confirmed that area Z was cleared.
Mrs Y objected formally to the Council regarding the planning application. She said the plan would cause harm, distress, and loss of amenity and the Council should have consulted more residents. She objected amongst other things to: The loss of privacy from the new mezzanine office windows.
The likely noise impact from the new development such as the use of cars, deliveries, people arriving, people talking and doors being used.
The potential for light pollution from windows, exterior lights and glare.
Mrs Y said that the section 106 had already been breached and the owner started the works before the Council had approved the plan. She asked the Council formally to take enforcement action.
The owner of the premises revised the plans and agreed to include obscure glazing to the new first floor windows. The new plans included moving air conditioning units away from the elevation facing the rear of residents homes and withdrew proposals to use Area Z for parking.
The Council notified the residents who had requested to speak at the planning committee meeting of the revised plans, giving 14 days for comments. Mrs Y objected to the revised plan. She also said he had not been given enough time to comment and other residents should be consulted.
The Council’s consideration of the planning application The planning officer’s report to the planning committee recommended it should approve the plan. He referred to the section 106 agreement and the restrictions it covered. He noted planning permission was not required for the internal works but was required for the external appearance changes. The proposed office use would fall within existing authorised planning use of the building. He said the applicant responded to overlooking concerns by including obscure glazing.
The planning officer’s report summarised the key issues raised by residents, and other consultees. The Council’s environmental health officer did not consider the proposed office use would create additional noise, vibration, smell, fumes, or smoke, than that currently produced. It also noted that air conditioning units were proposed in a part of the building furthest from the residential estate, and so would be unlikely to cause noise impacting the residential amenity. If this was incorrect, any noise complaints could be investigated under the Environmental Protection Act 1990.
The report referred to the planning officer’s assessment of privacy issues. The officer considered that the obscure glazing addressed concerns regarding loss of privacy, but that a condition should be added to the approval that it should be installed to a sufficient level, and it should be retained.
The report considered potential noise and light pollution. It noted the section 106 agreement and the previous independent noise assessment. The previous light industrial use of the premises included HGVs, forklift trucks and existing bay doors opening and closing. The Council considered office use would likely reduce noise levels. The removal of a bay door would also reduce noise levels. The officer considered noise from air conditioning units would not be unacceptable due to their position. The officer considered the scale of the proposed lighting plan would not negatively impact the amenity of residents. The report proposed a condition restricting working hours during construction to preserve residential amenity.
The Council did not consider there were sufficient concerns regarding car parking spaces, and it did not consider there was sufficient evidence of vehicles speeding on adjacent roads, or impacts on highway safety.
The report referred to the section 106 agreement and its restriction regarding changes to the external appearance to the premises. The Council said that if the committee approved the plan, it would issue its written consent.
Prior to the meeting, Mrs Y commented on the planning officer’s report to the committee. As she could not attend the meeting due to the Covid pandemic restrictions, she sent the Council a speaking statement. She said amongst other things that: There was not enough information about the obscure glazing to be sure it was sufficient to protect residents’ privacy.
The committee should consider the planning conditions which had been applied to other development sites which mitigated the potential noise impacts. The Council should carry out an independent noise assessment and a Council officer’s opinion was not sufficient.
The planning committee considered the planning officer’s report. The minutes of the planning meeting show that Mrs Y’s speaking statement was read out. The committee approved the plan with conditions, including that the glazing to the new windows must be obscure to a certain height and must be retained. It also attached a condition regarding working hours during the refurbishment.
Planning enforcement investigation Mrs Y complained to the Council it should take planning enforcement action because the owner breached the section 106 agreement by using Area Z, and because noise, vibration and dust emissions exceeded the levels assessed in the earlier independent report.
The Council replied that it could not take enforcement action regarding these matters because they were temporary events that fell outside of the mitigation measures which were set in place when the housing estate was built. The Council said that it had approved the works and had given its written consent to them.
Mrs Y complained further that the Council failed to take account of the section 106 agreement when it considered the planning application. She also complained the obligations set out in the section 106 agreement were still legally in place, whether the Council approved the works or not. In her view the agreement did not provide an exemption for temporary works.
The Council did not respond to Mrs Y’s stage two complaint within the time limits set out in its complaint procedure, as it was nearly 4 weeks late. It apologised for its delay when Mrs Y chased a response. In its reply the Council asserted it had considered the section 106 agreement in its report to the planning committee and had set out the issues relating to it. The Council noted Mrs Y’s point that the section 106 agreement did not allow any breaches. The Council considered the agreement recognised that physical changes to the building could be made and reasonable short-term use of Area Z could be allowed to carry out the changes. It would only be relevant to consider enforcement action if the Council had refused the planning application.
Mrs Y disputed the Council’s view. She considered the Council could have granted planning approval but still have taken enforcement action. She said the Council should have sought an injunction against the owner because of the catastrophic harm to her amenity. She had seen the planning enforcement officer’s email which confirmed there had been a breach to the section 106 agreement. She also complained when considering the planning application, members had not seen the section 106 agreement, and it was wrong to say no noise report was needed. She said the appropriate planning guidance had not been properly considered.
The Council responded it had broad discretion whether to take enforcement action and it was entitled to have regard to the planning application for the refurbishment works. It considered the degree of harm from the breach, its severity and whether it was irreversible. It sought its own legal advice regarding the section 106 agreement as a contract. It did not consider it prevented any changes. The section 106 agreement was a material planning consideration which the Council took into account in making its decision. The Council could also take account of the approved planning application when considering enforcement action. Its view remained that reasonable temporary use of Area Z was permitted while refurbishment works carried out.
Environmental Health investigation As the owner continued the refurbishment works Mrs Y says the impact on her home and family intensified, particularly from noise, vibrations and smells from demolition works. She said that as she worked night shifts and Mr Y was working from home, they were severely affected. She sent many emails to the Council reporting the noise and attached photos and videos. She advised she was particularly distressed by: flammable gas canisters left overnight on an elevated platform parked close to the boundary to residents’ gardens.
The use of asbestos removal contractor’s equipment, including generators and vents directed towards residents gardens.
Silica dust from contractors cutting blocks The Council responded it had visited the site the next day regarding the gas canisters and had spoken to the manager who confirmed this would not be repeated. Regarding the evidence Mrs Y sent about possible asbestos removal, it was unclear this related to works inside the premises. It was aware the owner carried out an asbestos survey. It stated Mrs Y had not raised the dust issue at the time and it did not consider there was likely harm due to the distance from the development. The Council advised if Mrs Y she considered there was poor practice by the owner she could contact the Health and Safety Executive (HSE).
The Council said its environmental health officer had visited the site 11 times over a period of eight weeks but had not witnessed noise, or there was noise at a low level and not of concern. The officer had discussed best practice measures to reduce the level of noise. The officer had also asked Mrs Y to complete diary sheets for a week to assist in the investigation but Mrs Y did not agree to this because he had advised her that he did not consider the Council could take action in view of the temporary nature of the noise.
Analysis I do not consider there is evidence of fault by the Council in its consideration of Mrs Y’s reports or in its decision making.
Planning application consideration Mrs Y complains the Council did not properly consider her objections and the Council failed to protect her amenity. In her view the Council should have taken account of the section 106 agreement when deciding the application.
I can see the Council referred to Mrs Y’s objections in its planning report. The Council addressed the concerns regarding the impact on residents’ amenity. It did not consider the potential harm to residents’ amenity was such that it should refuse permission. The Council summarised the main concerns and considered them. The Council referred specifically to the section 106 agreement. The Council considered relevant factors including national planning guidance and its own local policies. It considered the likely impact on residents’ amenity but did not conclude the harm would be such that it should refuse. I have not seen evidence of fault in its decision making. Therefore, as I state in paragraph 2, I cannot question the outcome.
The Council’s minutes of the meeting show Mrs Y’s speaking statement was read out. Members were made aware of the concerns raised, particularly relating to the section 106 notice and potential noise impacts. I have not found fault here.
Planning enforcement action and section 106 breaches Mrs Y said a planning enforcement officer told the owner’s agent that the use of Area Z as a storage area to carry out works was a planning breach and he had asked for this to stop, referring to enforcement action. In her view the Council then disregarded this and approved the planning application despite the identified planning breach. I have considered this, and it I can see the Council considered there was a breach of the section 106 agreement, which it may seek to enforce. The owner removed items from the area as a result of this.
However, the Council then considered the planning application and it was approved. It explains it was entitled to have regard to the planning application and considered temporary use of Area Z was permitted while the refurbishment works were carried out. Therefore, it decided it would not take enforcement action. It sought its own legal advice about this and explained that a Local Planning Authority has discretion regarding enforcement action. In my view the Council took account of relevant factors when considering its response to the reported breaches to the section 106 agreement. As I explain in paragraphs 12-13 enforcement action is discretionary, and Councils should consider whether it is proportionate in view of the harm to amenity. The Council considered the harm to amenity and the planning application which it approved. I do not consider there is fault in the Council’s decision making here.
Environmental health Mrs Y complains the Council failed to take appropriate action regarding noise from the refurbishment works, emissions and light pollution. I have not found apparent evidence of fault here.
I have seen evidence the Council’s environmental health officer responded to Mrs Y’s reports regarding noise. The officer visited several times but did not witness unacceptable noise from the works. The officer advised the owner that it must take best practice measures to keep noise to a minimum. The owner agreed to provide noise and dust monitoring information.
The officer also asked Mrs Y to complete a diary sheet to identify patterns of noise but she says she did not wish to complete these because he had advised he would not consider the construction noise as a breach to the section 106 agreement due to it being of a temporary nature.
The officer responded to Mrs Y’s reports of light pollution. Lights were left on at night and movement sensor lights were allowed to stay on for too long. The officer contacted the owner and it made adjustments. I have not found fault by the Council here, as it took steps to address the issues Mrs Y raised.
Final decision
I have not found fault by the Council. I have completed my investigation and closed the complaint.
Investigator's decision on behalf of the Ombudsman