The Ombudsman's final decision
Summary: Mr X complained about the way the Council’s planning enforcement and environmental health teams dealt with his reports about development and noise. We found no fault in the Council’s actions regarding planning enforcement. We found the closure of initial noise reports about noise was unexplained, and therefore fault. However, this caused no significant injustice as the Council went on to consider noise reports appropriately a short time later.
The complaint
Mr X complains the Council: failed to properly consider and respond to a complaint that his neighbours had breached planning rules when they widened and constructed a new driveway. Also, that his neighbour had committed offences against the road traffic act by driving over a footpath.
failed to respond appropriately to complaints he made about noise and inappropriate construction hours while his neighbour was constructing an extension.
failed to take enforcement action when he complained that his neighbour’s replacement windows constituted a breach of planning control because they did not match the existing windows and others in the vicinity.
Mr X stated the noise caused disruption for the period of construction and the other issues affected the street scene.
Mr X also complained in relation to three other issues at other properties in the area around his property (complaints 4, 5 and 6). These complaints included development by another neighbour in 2011 that had used mismatching materials, an extension and changes to the frontage of a property in 2017 which affected the street scene and a complaint about solar panels erected at a nearby property in 2013.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained; any injustice is not significant enough to justify our involvement; further investigation would not lead to a different outcome; or; there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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)
What I have and have not investigated We are considering complaints 1, 2 and 3 but we will not consider complaints 4, 5 and 6 as these events occurred too long ago and no worthwhile outcome could be achieved by an investigation now.
How I considered this complaint
I spoke to Mr X and his son and considered the information they provided. I asked the Council for information and I considered its response to the complaint.
Mr 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
The Environmental Protection Act 1990 Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
A council may decide that statutory nuisances include, noise from premises or vehicles, equipment or machinery in the street; smoke from premises; smells and fumes from industry, trade or business premises; artificial light from premises; insect infestations from industrial, trade or business premises; and accumulation of deposits on premises.
If a 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 issuing an abatement notice for a short period, to try to address the problem informally.
The Control of Pollution Act 1974 Section 60 of the Act allows councils to issue a notice to someone if they believe works are being or may be carried out at a premises. The Council can impose requirements in the notice about how the works must be carried out. This may be limits on machinery, working hours or levels of noise. If the requirements of the notice are breached, the recipient of the notice is guilty of an offence which the Council may pursue.
The National Planning Policy Framework (NPPF) Paragraph 59 of the NPPF says that effective enforcement is important as a means of maintaining public confidence in the planning system. However, enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.
Permitted Development Rights ‘Permitted development’ rules exist nationally which allow certain building works and changes of use to be carried out without someone having to make a planning application. The works that can be done under permitted development rights are limited and subject to conditions to control their impact. If the works being carried out fall within the limitations set out in legislation, they are deemed to have planning consent.
What Happened What follows sets out key facts for the purposes of explaining our decision on this complaint. It is not intended to be a full chronology of all events in relation to the complaints raised.
Complaint One In November 2022 Mr X reported to the Council that his neighbour was removing planters at the front of his house and widening his driveway. He complained this represented a breach of planning control.
The Council opened a planning enforcement investigation at the start of December 2022. The Council carried out an initial site 16 working days after Mr X’s verbal report. This was in line with its policy (to visit within 15 days). The Council noted works to extend the driveway and alter planting beds had begun.
The Council explained to Mr X that removal of the planters did not require planning permission but to comply with permitted development rules, construction of hard surfaces (the extended driveway) either needed to be built using permeable materials, or provision needed to be made for water run-off to be directed to a porous area on the property to prevent run off onto the highway.
On 12 December, Mr X emailed the Council to express various concerns about development in his area. These included that the materials being used for his neighbour’s driveway would not constitute porous materials.
Mr X provided us with a photograph taken on 12 December 2022, which showed a concrete delivery. Mr X noted this was not a porous material.
The Council carried out a further site visit on 14 December at which an officer noted the materials being used were porous.
At a final site visit, in the new year, the Council found the driveway had been completed using the materials officers had expected. It determined that the materials used had been permeable and complied with permitted development rules. Therefore, the Council determined no breach of planning control was present and no action was required.
As part of Mr X’s complaint, he also raised concerns that his neighbour was in breach of the Road Traffic Act because they were ‘bumping’ over kerbstones to access part of the widened driveway. He stated these were criminal offences. The Council explained to Mr X that this would be a criminal rather than civil issue that the Council could not deal with. It was not an issue the Council would investigate.
In October 2023, Mr X made a formal complaint about the way the Council dealt with his 2022 enforcement reports about his neighbour’s drive and planters. The Council responded in November 2023. It set out the steps taken to consider his reports and how it had decided not to take action. The Council’s response took account of relevant planning law; most notably permitted development regulations.
Complaint Two At the end of May 2023 Mr X made a complaint about noise from construction works being carried out by his neighbour. He also complained that works were being carried out outside of the normal working hours set out (as informative notes) in his neighbour’s planning permission.
In the month that followed, Mr X reported nine instances of alleged noise outside the normal working hours stated in the planning permission. He sent further photographs of alleged breaches at the end of June.
On 30 June the planning enforcement team advised Mr X that the team had no control over working hours or construction practices. Mr X says he was directed to the Anti-Social Behaviour Team (ASB Team). He sent the ASB Team further evidence of alleged breaches of the normal working hours. Mr X asked the council for an assurance that enforcement action would be taken for the breaches of working hours and no more work would take place outside the normal hours. He says the ASB Team ignored his correspondence.
In mid-July, I understand the ASB Team sent a noise warning letter to Mr X’s neighbour.
Mr X made a further complaint to the ASB Team on 24 July. He also raised a formal complaint against the team on the same date.
On 26 July the ASB Team asked Mr X to provide additional information in respect of reports he had made.
In early August, in response to Mr X’s complaint, the ASB Team explained the actions it had taken. It explained following the general warning letter to his neighbour, officers needed to witness noise in person to take things further. It gave Mr X contact details and asked him to report noise when it was taking place. It noted officers may not be available at all times.
I understand the initial reports Mr X sent were closed. The Council did not explain why this happened.
At the end of August following further contact from Mr X, the case was re-opened and a second warning letter was sent. Mr X was also given access to a Noise Application (Noise App) which he could download and use to send the Council evidence of noise.
In September an officer contacted Mr X to ask what noise had occurred over the weekend. Mr X provided some evidence. As a result, the officer issued issue a Notice under Section 60 of the Control of Pollution Act. The notice stated that any works that were audible at the site boundary must only be carried out between certain hours. The officer stated if there were further breaches, a legal case could be considered.
Mr X uploaded various pieces of evidence of noise to the Noise App from 10 September.
In late September an Officer assessed Mr X’s uploads. They found there was not evidence of noise that would constitute a breach of the Section 60 notice. The Council explained to Mr X at this time that the matter was still under investigation, and explained when officers were generally available. It stated, if a there was a persistent problem, officers could attend at weekends.
In early November, the Council closed the file because it had not had any reports of noise in the last three weeks.
Complaint Three While other building work was being carried out by his neighbours in August 2023, they also installed new windows at the property. Mr X stated these were ‘mis-matching’ new replacement windows.
Mr X emailed the Council’s planning enforcement team twice in mid-August and made a formal complaint about the window replacement at the end of August 2023. Mr X complained that the colour of the window frames had been changed and the glazing had a higher level of sunlight glare to the original panes. He provided a detailed explanation of why he considered the replacement windows were not in keeping with other nearby properties.
He complained the windows no longer matched all of the other properties in the estate, which all had the same colour window frames. Mr X cited planning policies which he considered had been breached by the replacement windows. The policies related to development needing to harmonise with the street scene. Mr X considered the windows represented a statutory nuisance due to glare from the glass itself.
The Council wrote to the homeowner in September setting out that the replacement windows represented a breach of planning control. The homeowner did not agree. He stated the replacements were of a similar match and colour.
A planning enforcement officer acknowledged Mr X’s complaint on 2 October. The officer stated the Council had written to the homeowner and an enforcement investigation opened. However, they noted they could not determine matters of Statutory Nuisance. The officer told Mr X that the National Planning Policy Framework (NPPF) required councils to consider what the most appropriate action may be in enforcement cases. It stated councils should usually avoid taking action if there was only a trivial or technical breach of planning control. It also advised against taking enforcement action if unauthorised development would be inherently acceptable on its planning merits, and enforcement action would only be to regularise it.
In response to further contact from Mr X, the Council advised him that the Town and Country Planning Act (General Permitted Development Order) allowed for the installation or replacement of windows subject to conditions. The Council stated a planning enforcement investigation was ongoing but it reiterated what the NPPF stated about taking proportionate enforcement decisions.
The Council responded to an informal complaint from Mr X in September 2023 while it was still investigating the issue. It noted it had raised the matter with his neighbour and if no action was taken it would consider whether it was expedient to take formal action.
The Council carried out a site visit and a conducted a case review in October. It determined there was a difference between the existing and new windows which meant they were non-matching and did not benefit from permitted development rights. So, the works were a breach and required planning permission. They had further correspondence with the homeowner as a result.
Because the planning enforcement team had not been able to resolve the matter via informal correspondence with the homeowners, officers sought advice from its urban design team in January 2024. This was with a view to deciding whether it was expedient to take formal action.
On 1 February the Council told Mr X, after consultation with the design team, it had concluded that the replacement windows did not warrant formal enforcement action. The design team noted the colour was mismatched but considered it was not significant enough to be concerning.
In further correspondence in February 2024 Mr X set out his view that the Council should take planning enforcement action due to replacement windows not meeting the permitted development rules because they were not of similar appearance to those used in the existing dwelling. He repeated concerns that the changes did not harmonise with the other properties in the vicinity. Mr X also restated the window panes themselves produced glare and this was such as to render his neighbour’s property ‘prejudicial to health’, and a statutory nuisance.
The Council told us there was no further correspondence from the Council to Mr X about the matter.
Was there fault by the Council Complaint One In response to Mr X’s complaint about his neighbour’s driveway the Council carried out a number of site visits and sought information from his neighbour about the materials being used. The Council satisfied itself at the site visits that the driveway works would meet the requirements of permitted development rights regarding materials and drainage. As a result, it found there had been no breach of planning control. The Council’s decision not to take action was one it was entitled to reach, having found no breach.
Linked to this complaint, Mr X raised concerns his neighbour was in responsible for breaches of Road Traffic Act. The Council directed Mr X to the police as they would be the appropriate authority to take action about issues such as this, if appropriate.
There was no fault in the way in which the Council considered Mr X’s reports.
Complaint Two Mr X first made reports to the environmental health team about noise at unreasonable hours at the end of June 2023. The Council sent a warning letter and asked Mr X for some more information. It appears that during August the files on Mr X’s reports were closed. The Council could not tell us why. In the absence of an explanation, I found this was fault.
However, following further contact from Mr X a fresh case was opened. In response to the further reports it received, the Council issued a warning letter and invited Mr X to supply evidence of his concerns via a Noise App. When Mr X reported continued breaches of the Councils standard construction hours, the Council issued a formal notice under Section 60 of the Control of Pollution Act. There is evidence the Council considered numerous reports and evidence that he submitted to the Council. It found there was no evidence of noise that had breached the requirements of the Section 60 Notice that required action. It closed its files when it was receiving no more reports of noise and disturbance.
I found the reasons for closing Mr X’s original noise reports were unclear, and this was fault. However, a file was re-opened promptly when Mr X made additional reports. The Council took the action we would expect to follow up on and consider noise reports it received. The Council did not find the reports being made by Mr X were such that warranted formal action. This is a decision officers made, applying their professional judgement. The law says that a potential nuisance must be judged on how it affects the average person.
Overall, I found the actions the Council took were appropriate. I do not consider there was any significant injustice to Mr X from the initial closure of his reports because of the subsequent steps it took to consider the matter further. Also, when the Council assessed the evidence Mr X supplied via the noise app it did not consider there were grounds to take any action.
Complaint Three There was no fault in the way the Council dealt with Mr X’s complaint about mis-matching windows. The Council established the work done was a breach of planning control because the work did not meet the requirements of permitted development. Officers attempted to resolve the matter informally at first. This is appropriate. When officers found it was unlikely Mr X’s neighbour would seek planning permission or remedy the breach in another way, they considered whether to take enforcement action. While they noted this was a breach they decided the impact was not significant enough to make planning enforcement action expedient. As a result, they decided they should take no action.
Councils are not obliged to take formal planning enforcement action to resolve a breach of planning control. There was no fault in the way the Council decided not to take enforcement action in this case.
Final decision
There was fault by the Council, but this did not lead to significant injustice to Mr X.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman