The Ombudsman's final decision
Summary: Mr C said the Council failed to take sufficient action to prevent a business close to his home from disturbing his family early in the mornings. The Council was at fault for a failure to take action against the business for a period of two months. This fault caused Mr C injustice as his sleep was disturbed and his mental health suffered. The Council has already apologised to Mr C and paid him £500 in recognition of the injustice caused. It has agreed to pay £200 more.
The complaint
The complainant, Mr C, says the Council failed to take action to prevent a local business from operating in a premises near his house which did not have the correct planning permission. The business caused unacceptable levels of noise early in the morning for 14 months.
Mr C says this caused him injustice. He has been unable to sleep and this has affected his mental health.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. 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) 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 Mr C. I wrote an enquiry letter to the Council. I considered the information I had gathered alongside the relevant law and guidance.
Mr C 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
What should happen Planning use classes The Town and Country Planning (Use Classes) Order 1987 divides the various uses of land and buildings into various ‘use classes’. These include, for example, Class B2, general industrial, B8, storage or distribution, Class C3, dwelling houses, Class E is for commercial, business and service premises.
If an owner or occupier of a site authorised for one use class wants to use it for another activity, they will often require planning permission to do so.
If a business has no permission to operate in the right use class, councils can take enforcement action requiring them to stop.
One form of enforcement action is for a council to write to a business and ask them to apply for retrospective planning permission for the correct use class.
Enforcement Planning authorities have the power to take enforcement action against those using a site in breach of planning permission to require them to stop. The National Planning Policy Framework says they should only do so if it is ‘expedient’ to do so. Expedient is not defined.
The Ombudsman will not usually find fault with a council for a failure to take enforcement action if it has considered the facts and decided that it is not expedient to take action. However, if it has failed to take such action or has delayed in doing so, we will often find fault.
Councils will often not take enforcement action while there is an outstanding planning application. The Council, on its website, says, when deciding whether to take enforcement action, it will consider the likelihood of success and the resource implications. In effect, this means that enforcement action will seldom be taken when there are pending applications or appeals.
Appeals If the occupier of a site applies for permission to change its use, and the council refuses permission, they have a right of appeal to the Planning Inspectorate. Councils will not usually take enforcement action while an appeal is pending.
Ombudsman’s role The Ombudsman is not a planning appeal body and we do not make judgement on the merits of planning decisions. Our focus is on council fault. Where we find fault, we determine whether it caused significant injustice to the complainant.
Noise nuisance Complaints about noise are governed by the Environmental Protection Act 1990. On receiving a complaint about a noise nuisance, a council must investigate to see whether it amounts to a ‘statutory nuisance’. To do so, it must either: Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or Injure health or be likely to injure health.
The law says a statutory noise nuisance must be sufficient to cause distress to a person of normal sensitivity. A council officer will therefore visit to make an independent judgment as to whether the noise amounts to a statutory nuisance.
Many factors will affect the officer’s decision. They will consider the time and duration of any noise or smell as well as its severity. They may ask complainants to keep a noise diary to help assess the impact on them. Councils may use sound measuring equipment though there is no statutory requirement to do so.
If a council decides a noise or odour amounts to a statutory nuisance, it must serve an abatement notice requiring the perpetrator to stop. If it decides that the noise made does not amount to a statutory nuisance it can continue to use informal intervention to try to solve the problem.
What happened
Background
Mr C lives in the Council’s area on an estate near a business park. In 2016, a business premises near his house, which was owned by a Mr G, received planning permission to change its use to become a garage.
The site was a large one and Mr G sublet units to other companies. In the summer of 2020, a company owned by Mr H, which was not a garage and did not, therefore, have permission to operate on the site, sublet a unit from Mr G.
The complaint
Mr C says this was immediately distressing for family and his neighbours because it caused loud noises before 7am. Mr C reported the noise to the Council.
Having received no response, Mr C emailed again after two weeks asking for an update. A Council environmental health officer, Officer O, told him some action would be taken that week.
A month later, having heard nothing, Mr C wrote to Officer O again asking for an update. Officer O said she had visited the site with officers from the Council’s planning department and spoken to Mr G and Mr H who had agreed to ensure the noise did not begin before 7am in future.
Officer O later suggested Mr C should download the Council’s noise app to support any complaint to environmental health. Three weeks later, Mr C wrote to Officer O again. He sent information gathered using the noise app.
Mr C says he heard nothing from the Council and the noise continued. He wrote to the Council again in October and November 2021 with no reply.
In March 2021, he wrote again. The next day, the Council’s planning department wrote to Mr H saying he was in breach of planning law and saying he should either leave or apply for planning permission to allow a change of use for the site.
The Council did not inform Mr C of this. He therefore contacted his MP who wrote to the Council on his behalf later in March 2021.
Mr H applied for retrospective planning permission to change the use class in May 2021. Mr C received notification of this application. This was the first he had heard from the Council since September 2020. He wrote twice more to the Council about Mr H’s application over the summer of 2021. He also lodged objections to Mr H’s application on the Council’s website.
Mr H’s application to change use class was rejected in September 2021. The Council wrote to Mr C informing him of this a few days later.
Mr H continued to use the site for his business even though permission had been refused. Mr C complained formally to the Council about the lack of action in early October 2021. He received a response in late October 2021. The Council apologised for the late response.
The Council apologised for delay in taking action against Mr H between November 2020 and March 2021. It also apologised for the delay in processing Mr H’s application which had taken four months when the Council’s aim was to complete applications in two months. The Council told Mr C it had now given Mr H a two-month period, ending in November 2021, to cease operations at the site.
Mr C escalated his complaint to stage two. In its stage two response, the Council again apologised for the delay in dealing with Mr H’s case. It offered Mr C £500 in recognition of the distress Mr C had suffered. It has since paid Mr C that money.
Mr C was unhappy with the Council’s response and complained to the Ombudsman in late September 2021.
In early December 2021, the Council issued a planning enforcement notice requiring Mr H to vacate the site by 16 January 2022. However, in late December 2021, Mr H sent notice that he intended to appeal to the Planning Inspectorate to the Council. That appeal is ongoing and Mr H remains in business at the site. Mr C says the noise continues.
Was there fault causing injustice?
The Council is not responsible for any noise emanating from the site. However, it does have a duty to consider complaints about noise within a reasonable timeframe.
The Council says that, after Mr C sent them noise app data in September 2020, it decided this noise did not amount to a statutory nuisance and so it could not issue a noise abatement notice. However, it should have told Mr C and it could still have taken some action to try to resolve the issue. The evidence shows it did neither. It let matters lie until Mr C contacted them again in March 2020.
The Council accepts it was at fault for delay from November 2020 to March 2021. I agree but find that it is also responsible for delay in September and October 2020. This fault caused injustice to Mr C as the processing of Mr H’s planning application and appeal were delayed by two months causing him uncertainty and distress.
Mr C has complained of the Council’s failure to take any action since. However, it is not the Council’s policy to take enforcement action if there is an outstanding application or appeal, which there has been since then. As the decision not to take enforcement action is in line with the Council’s policy, I cannot find the Council at fault for it.
The Council has already apologised to Mr C and paid him £500 for the injustice he suffered. It calculated this injustice by paying Mr C £100 for every month of delay. It found there had been five months. I endorse the Council’s method. However, in my view, there were a further two months of delay. I therefore recommend that the Council should pay Mr C another £200.
Agreed action
The Council has agreed that, within four weeks of the date of this decision, it will pay Mr C a further £200.
The Council has also agreed that, within two months of the date of this decision, it will review this case and, where necessary, amend its processes to ensure that it is more proactive in future, providing training or support as required. It will then write to the Ombudsman explaining what it has done and intends to do to prevent similar fault in future.
Final decision
I have investigated and found that the Council was at fault. It has agreed a suitable remedy. I have closed my investigation.
Investigator's decision on behalf of the Ombudsman