The Ombudsman's final decision
Summary: Mr X complained the Council had failed to deal with noise from a local business and had failed to ensure the business complied with its planning approval in relation to a noise assessment and its hours of operation. There was no fault in the way the Council dealt with Mr X’s noise complaints or in the way it reached the decision to discharge a planning condition.
The complaint
Mr X complained the Council had failed to deal with noise from a local business and had failed to ensure the business complied with its planning approval in relation to a noise assessment and its hours of operation. Mr X says this has caused him and his family distress and sleep deprivation. He wants the Council to take action to abate the noise.
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 have considered the information provided by Mr X and discussed the complaint with him on the telephone. I have considered the Councils response to my enquiries.
I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.
What I found
The relevant law and guidance Environmental health 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 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, or EHO) 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. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
The Council’s procedure When the Council receives noise complaints it will write to the complainant and send diary sheets. It will also write to the alleged offender to make them aware of the complaint. Any diary sheets received back will be analysed to determine whether the likelihood that a statutory nuisance exists. Where the information in the diary sheets is detailed and comprehensive it will arrange to visit in an attempt to witness the alleged nuisance.
If the Council witnesses a noise which it considers constitutes a statutory nuisance it will serve an abatement notice.
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.
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 happened Mr X lives close to an industrial estate. In late 2016 the Council granted planning permission to a business on the site. When it applied for the planning permission, the company stated they operated Monday to Friday. The planning permission had a number of conditions attached including the requirement for a noise impact assessment using the relevant British Standard ‘in the interests of the amenities of adjacent residential properties’. There were no planning conditions related to hours or days of operation. In 2017, the business applied to discharge the noise assessment condition. The Council was not satisfied with the noise impact assessment and refused to discharge the condition.
In January 2021 following residents’ complaints about noise from the site, the Council contacted the business. It considered the noise did not constitute a statutory nuisance but amplified music was not necessary for carrying out the business’s commercial activities. It also requested that workers be respectful of residents when carrying out operations at night.
In February 2021, the business applied again to discharge the noise assessment condition. The Council raised concerns regarding the noise impact assessment and required further revisions.
In February 2021, a councillor contacted the Council on behalf of Mr X and other residents about shouting and loud music from the business during the night/early hours. The Council contacted the business with Mr X’s concerns. The business reported it had taken appropriate action to address this with staff. It confirmed it had been in direct contact with Mr X and had apologised and had advised him of the action it had taken.
The Council analysed the recording. Mr X made 137 recordings and 21 diary sheet entries. A number of the entries were in short bursts (eg, six in 20 minutes). The Council noted commercial activity noise was evident with vehicle noise noticeable and a forklift truck rattling which it considered annoying but not a statutory nuisance. It noted amplified music was evident along with workers laughing and talking loudly. It again assessed this as annoying rather than a statutory nuisance but reported this back to the business.
Mr X complained again in April 2021 about working noise and music from the site. Following this the Council installed noise monitoring equipment at Mr X’s property for a week. Mr X also contacted the business direct and provided it with recordings. It agreed to ask staff to keep noise to a minimum and reiterated that visitors to the business must keep noise levels down.
Between May 2021 and October 2021, the Council received 31 complaints from other residents about noise from the site. It received no complaints between November and April 2022. It received three further complaints in May 2022.
The Council carried out three out of hours visits to the site in late April 2021 and four in May 2021. It did not note any significant noise. It made 13 other out of hours visits to the site between June and December 2021. In mid-December 2021 it visited Mr X’s street out of hours. It noted faint intermittent noise could be heard. It carried out 15 additional out of hours visits to the site between January 2022 and June 2022 and noted no noise.
In June 2021 Mr X complained to the Council the business was operating in breach of planning conditions. In the initial application the business stated it would operate Monday to Friday but it was operating seven days a week.
In July 2021 the Council responded to Mr X’s councillor regarding his and other residents’ complaints. It said it had routinely visited the site and the out of hours service had monitored most weekends and in the early hours when residents raised most concerns. It had not witnessed a statutory nuisance. It had carried out noise monitoring at Mr X and another resident’s properties but the recordings did not indicate statutory nuisance. It advised it intended to close the noise investigation. However, if residents were disturbed by weekend night time noise that they believed may be a statutory nuisance, they should call the out of hours team.
In relation to the planning condition regarding the noise assessment, it advised it was still considering this. It noted the noise from the actual business was not the residents’ only concern. Rather it was noise from workers on breaks using the outside area. It advised it would work with the business to encourage reductions in this type of noise. It advised it would be willing to meet with the councillor and residents to look at how they could work together to allow the business to continue to operate whilst improving the environment for residents.
In November 2021, the Council discharged the planning condition regarding the noise assessment, following the submission of an amended noise assessment report. The report calculated that noise emissions from the site would have a low likelihood of an adverse impact on neighbours.
In early 2022, Mr X complained to us.
Findings
Environmental Health The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process.
The Council took suitable steps to investigate Mr X and other residents’ complaints of noise. It made out of hours visits, carried noise monitoring and liaised with the business to address issues with amplified noise and workers talking. It followed its procedure. The Ombudsman cannot question decisions made by officers where all relevant information has been gathered and there was no fault in the process leading to the decision. There is no evidence of fault in the way the Council has followed its procedure to investigate Mr X’s concerns The Council has provided me with its review of the noise recordings from Mr X’s property. It is the Council’s role, in line with the Environmental Protection Act 1990 to make a judgement about what constitutes a statutory noise nuisance. The Council officer’s analysis of the noise recordings presented in this case is not something the Ombudsman would consider unreasonable. As such, there is no fault with the Council’s decision to find no statutory noise nuisance.
Planning The planning permission included no conditions related to hours or days of operation. The Council therefore has no planning control over the business’s hours of operation. The planning permission included a condition for a noise assessment report. The Council delayed discharging the condition as it was not satisfied calculations contained within the assessment report. Once the Council was satisfied the report’s calculations were in line with the British Standard, it discharged the condition. There was no fault in the way the Council reached this decision. Any delay in discharging the condition did not cause a significant injustice as once it was completed, the Council was satisfied with the report.
Final decision
I have completed my investigation as there is no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman