Summary: Mr E complained how the Council has handled matters concerning a nursery at the back of his house. He says the nursery expanded without planning permission and this has resulted in excessive noise. We do not find the Council was at fault.

The complaint

1. Mr E complained how the Council has handled matters concerning a nursery at the back of his house. He says the nursery expanded without planning permission and this has resulted in excessive noise.
2. Mr E says he cannot enjoy using his house because of the noise and lack of privacy from the nursery.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. I considered information from Mr E. I made written enquiries of the Council and considered information it sent in response.
6. Mr E and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Permitted development

7. 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.
8. Not all development needs planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

Enforcement

9. 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.
10. 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.

Statutory nuisances

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
12. 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

13. 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.

14. 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.
15. 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.

What happened

16. This chronology provides an overview of key events in this case and does not detail everything that happened.
17. Mr E lives near to a nursery. The Council is the leaseholder of the building. Mr E says in 2020/2021 he noticed development works were taking place at the nursery. This included new CCTV cameras, a new fence and two new outbuildings in the playground.
18. Mr E contacted his local councillor about the works. The councillor sent Mr E’s concerns to the Council.
19. The Council exchanged emails with Mr E about the works at the nursery. It agreed to investigate the matter further to decide whether there had been a breach of planning control.
20. The Council inspected the nursery. It contacted Mr E after the inspection. It said the CCTV did not require planning permission as it complied with Part 2, Class F of the General Permitted Development Order (GPDO). It said the fence was 1.9 metres high and therefore it complied with Part 2 Class A of the GPDO. It said it would have required planning permission if the fence was higher than 2 metres. It also said the two outbuildings did not have permitted development rights. It said the nursery stated the outbuildings were built at least six years ago. It asked Mr E if he had any information on when they were built.
21. Mr E replied and said he did not understand how the nursery tripling its outside space did not require planning permission. He also said the Council’s plans showed neither of the two structures existed in 2019.
22. The Council wrote to Mr E after further investigation and said the two outbuildings were permitted by Part 12 of the GDPO (development carried out by local authorities). It said it had permitted the outbuilding works. It also said the outbuildings were 1.9 metres high, and Part 12 Class A of the GDPO allows structures no higher than 4 metres. Therefore, there was no breach of planning control.
23. Mr E sent a formal complaint to the Council the following year about noise from the nursery.
24. The Council sent a letter to Mr E and asked him to complete diary sheets so it could investigate the noise. It also sent a letter to the nursery and explained it had received a noise complaint. It said it would monitor the situation.
25. Mr E sent an email to the Council. He explained the noise was coming from the playground. The Council responded and said it needed to witness that a statutory nuisance was occurring.
26. Mr E agreed for the Council to inspect his house to assess the noise. He explained during the visit he uses his kitchen to work and that is where he hears most of the noise.
27. The Council emailed Mr E after the inspection. It said his kitchen was not a habitable area of his house, and therefore it could not carry out a noise assessment from there. It said Mr E could use his living room during the day for work. It concluded there was no evidence a statutory noise nuisance existed. It said the activities of children in the playground was not unreasonable as it occurred outside the noise sensitive hours of 11pm to 7am.
28. Mr E responded and said he disagreed with the outcome. He said it was insulting for the Council to suggest he should use his living room during the day. He also said it did not use a noise meter during the inspection. The Council responded and said its decision remained the same. It said it would contact him to install a noise meter in his house.
29. The Council emailed Mr E the following week and asked when it could install the noise meter. It said it still did not consider a statutory nuisance existed, but it wanted to determine the type of noise he was exposed to. Mr E responded and said his kitchen contains a dining table and therefore it is a habitable room. He also said he did not need a noise meter as everyday he is exposed to children screaming and crying.
30. The Council responded and said officers must evaluate where it is appropriate to carry out an assessment within a property. It said a habitable room includes a room where individuals will rest by sitting or lying down. It said there are competing noises in kitchens. Small kitchens are usually used for cooking and another room is used for dining. It said his kitchen did not meet the definition of a habitable room.

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Analysis

31. The Council inspected the nursery to determine whether there had been a breach of planning control. It decided the works were permitted development, and therefore planning permission was not required. That was down to the professional judgement of officers. I find no fault in the way the Council considered this matter, and therefore I cannot criticise its decision.
32. It is for the Council to decide whether a statutory noise nuisance exists. The test is whether the noise unreasonably and substantially interferes with the use or enjoyment of a home. In Mr E’s case, the Council considered the information he provided, and it visited his house. It decided the noise did not amount to a statutory nuisance because it was outside the noise sensitive hours (11pm to 7am) and it was not unreasonable or excessive. It said the noise from the children playing was audible, but not at a level the officer would consider a statutory noise nuisance. That was a decision the Council was entitled to take, even if Mr E strongly disagrees with it.
33. Mr E says his kitchen is a habitable room as it has a dining room table and chairs. He is unhappy the Council failed to assess the noise from his kitchen. The Council has explained in its view Mr E’s kitchen is not a room for rest and relaxation, and it is a small room where meals are cooked and eaten. It says the kitchen is separate from other rooms at his house. This is to protect the noise sensitive rooms (living room or bedrooms) and to allow for relaxation in them.
34. There is no single legal definition of a habitable room, and the Council is free to assess the matter depending on the layout of a person’s house. The Council has explained why it did not consider Mr E’s kitchen is a habitable room. It considered everything we would expect it to before it made its decision. The Council was not at fault.

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Final decision

35. I have completed my investigation. The Council was not at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman