Summary: We found fault in the way the Council carried out its planning enforcement investigation for the complainant (Mr X), in the delays with dealing with Mr X’s complaint and the Council’s failure to carry out recommendations of the stage two complaint response. Some of the Council’s fault caused injustice to Mr X. We did not find fault with the remaining issues of Mr X’s complaint. The Council agreed to complete its stage two complaint recommendations and to carry out some service improvements in its planning enforcement team.

The complaint

1. Mr X complains about the Council’s failure to:
1. Ensure compliance with all planning conditions for the school built close to his property and the grounds which are used for sporting activities;
2. Protect him and his neighbours from the excessive noise and light pollution caused by:
• The school and pavilion situated nearby;
• Changes in the use of the playing fields;
• Changes in the lighting of the tennis club.
2. Mr X says the Council’s failings affected his and his neighbours’ health and the quality of life.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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

8. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files. I reviewed the documents provided by the Council in response to my enquiries.
9. I referred to the Council’s Local Enforcement Plan, the Council’s Noise Nuisance Fact Sheets and the Council’s Corporate Complaint procedure.
10. Mr X 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

Legal and administrative framework

Planning permission and enforcement

11. Councils may grant planning permission for the development of land (including its material change of use), subject to conditions.
12. Breaches of planning control are defined in S171A of the Town and Country Planning Act 1990 as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
13. 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. Government guidance says planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. (National Planning Policy Framework July 2021, paragraph 59)

The Council’s Local Enforcement Plan

14. When planning permission is granted subject to conditions some of these conditions may require action by the developer either before development starts (pre-commencement conditions), at certain stages during the development or at the end of development. It is important that these conditions are complied with and discharged at the appropriate time to ensure that potential harm caused by a proposed development/use is mitigated.
15. The Council’s power to take enforcement action is discretionary, and only to be used when it is 'expedient' to do so. Any action taken should be appropriate to the seriousness of the breach of planning control and the harm caused or harm that may be caused.
16. The Council will acknowledge all complaints of potential breaches of planning control in writing within five working days. The complaint will be given a reference number and the contact details of the appropriate enforcement officer. In all cases an investigating officer will conduct an initial site visit and respond to the complainant within twenty working days. This response will include the result of the initial investigation and the priority afforded to the case.
17. After an initial assessment the Enforcement team will aim to complete the investigation and determine whether a breach of planning control has occurred within eight weeks for the category A cases, within 13 weeks for the category B cases, within 26 weeks for the category C cases and as soon as practicable for the category D cases. These timescales can be affected by a number of factors outside the Council’s control.
18. The Council will keep complainants informed about the progress of investigations and will notify them of the final result. When a breach of planning control has occurred but the Council does not deem formal enforcement action to be expedient or appropriate, the Council will provide the complainant with its reasons.

Statutory nuisance

19. 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:
• Artificial light emitted from premises;
• Noise emitted from premises.
20. 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.
21. 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.
22. 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.
23. 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.
24. A member of the public can also take private action against an alleged nuisance in the Magistrates’ Court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82 of the EPA.

What happened

Background

25. The Local Planning Authority (LPA) granted planning permissions for:
• Two form entry primary school (the School) to be built with associated landscaping and multi-use games area – August 2018. The LPA’s decision was judicially reviewed and upheld by the court.
• Amendments to the planning application for the School – February 2019. These needed full details and specification of the floodlighting for the multi-use games area to be submitted and approved by the LPA.
• Landscaping works to the playing fields – April 2019;
• Multi-use games area floodlighting – April 2020. The number of floodlighting columns was reduced from six to four due to concerns about light spill and the impact on bats;
• Erection of six floodlighting columns supporting lamps in addition to the existing ones for two courts in the tennis club – August 2019. In February 2021 the LPA refused to change permitted hours of use for the floodlights.
• Refurbishment and extension to the pavilion building – December 2019;
26. The School opened in September 2021.

The Council’s investigation

27. in the second week of December 2022 Mr X contacted the Council with his and other residents’ concerns about the lighting and noise from the School, multi-use games area, pavilion and the tennis club next to their properties. The Council started investigating these issues, looking at the possible breaches of the planning conditions and whether the noise and light amounted to statutory nuisance.
28. At the beginning of January 2023 the Environmental Health officer (Officer 1) and the Council’s manager (Manager 1) visited the residents who had complained. The planning process as well as the specific concerns around lighting and noise were discussed. Following the visit Officer 1 opened a noise investigation and sent diary sheets to the residents, asking them to complete them in the next few weeks. Some of the residents accessed noise applications and started sending recordings.
29. Officer 1 visited the site again two weeks later. He installed noise measuring equipment and made some observations on the noise witnessed during his visit. After a few days Officer 1 collected the equipment, recording his observations of what he heard.
30. At the end of January Manager 1 responded to Mr X’s concerns raised in December 2022. He explained the Council had been investigating the levels of noise from the beginning of January 2023. Manager 1 provided the results of his and Officer 1’s observations of the lighting from the multi-use games area, pavilion and the tennis club:
• Two out of four floodlighting columns in the multi-use games area had been fitted with cowls which, he said, reduced the light spill;
• The lights at the tennis club closest to the residents were observed to turn off at the specified time;
• Manager 1 also explained why he did not consider the lighting on the pavilion was problematic.
31. A few days later Mr X received response from the planning officer (Officer 2). Officer 2 said that as the planning permission for the School had no conditions for the use of the playground areas, there had been no planning breach. The School’s planning permission had a condition, however, the lighting for the multi-use games area needed planning application. This happened in June 2019. The application first referred to six flood lighting columns, but after consideration the number was reduced to four.
32. Having reviewed the noise recordings and diary sheets as well as referring to the noise assessment completed during the planning application for the School, in mid-February 2023 Officer 1 told Mr X the noise from the School and multi-use games area did not amount to statutory nuisance. When making his decision Officer 1 considered impact, locality, time of day, duration, frequency, convention, importance and avoidability. Officer 1 also gave his reasons for not considering the lighting from the School and near grounds a statutory nuisance. Officer 1 told Mr X he could take the civil action under Section 82 of the Environmental Protection Act 1990.

Complaint handling

33. At the end of March 2023 Manager 1 responded to Mr X’s complaint raised at the beginning of February. The complaint was not upheld. Manager 1 provided detailed reasons for the Council’s position.
34. In mid-May Mr X asked the Council to consider his complaint at stage two. In June a manager from a different team in the Council (Manager 2) visited the site to get a better understanding of the issues complained about. She also talked to Mr X and various Council’s officers with the involvement in the case. Responding to Mr X’s complaint at the end of July Manager 2 partially upheld some of the issues complained about:
• Light nuisance from the tennis club. Manager 2 found Officer 1’s investigation limited and recommended a further assessment to decide the impact of the floodlights in winter months between the hours of 20:00 and 22:00;
• Noise nuisance from the external company’s use of the multi-use games area outside the school hours and during holidays; Manager 2 recommended writing to the external company using the multi-use games area and to the School about the use of whistles to minimise unnecessary disturbance to the residents;
35. In addition Manager 2 made some further recommendations:
• For the Planning Enforcement team to investigate why only two out of four light for the multi-use games area had been fitted with cowls;
• To carry out further checks on a replacement planting;
• For all noise assessment to record the weather during the assessment period.
36. Mr X also received a letter from one of the Council’s directors, who backed the stage two complaint response findings and recommendations.
37. In response to my enquiries the Council provided details of how it carried out the stage two recommendations. There is no evidence that following the stage two recommendations the Council:
• contacted the School and an external company using multi-use games area trying to minimise the noise impact on the residents;
• carried out a further assessment to decide the impact of the floodlights in winter months between the hours of 20:00 and 22:00;
• investigated why only two out of four lights for the multi-use games area had been fitted with cowls.

Analysis

Planning enforcement

38. The Ombudsman is not a planning authority and cannot decide whether a breach of planning control has occurred and, if so, what action should be taken to resolve the breach. Instead, we investigate how the Council has considered matters and whether it has acted in accordance with the law, guidance and its own enforcement objectives.
39. We expect councils to carry out thorough investigations into enforcement complaints and consider the full range of enforcement choices open to them. Even if a council decides not to take enforcement action, we expect it to record its reasons and explain its decision to any complainants. We would expect the council to do so without unnecessary delay.
40. When carrying out its planning enforcement investigation the Council failed to follow the process laid out in the Local Enforcement Plan. Specifically:
1. Officer 2 failed to visit the site;
2. An initial assessment was delayed by two weeks:
3. There was no final response with the result of the Council’s investigation.
41. I do not consider, however, the Council’s fault caused significant injustice to Mr X for the following reasons:
1. In the initial assessment Officer 2 stated there was no breach of planning, so no enforcement action was needed. On the balance of probabilities it is unlikely the site visit would have changed the Council’s position on the absence of the planning breach. This is because Officer 2 liaised with Officer 1 who several times visited the site. Besides the Council reinforced its position on the planning enforcement aspect of Mr X’s complaint during the complaint process. Both managers responding to Mr X’s complaints at stages one and two visited the site. Finally, the Council’s position was mainly based on the planning documents;
2. The delay was not significant enough to cause injustice to Mr X;
3. The Council provided Mr X with the result of its enforcement planning investigation in its stage one response to Mr X’s complaint at the end of March 2023.

Statutory nuisance

42. The evidence shows when dealing with Mr X’s noise and lighting disturbance reports the Council followed the legislation and its noise nuisance procedure. In particular it:
• Logged and reviewed all Mr X’s and his neighbours’ noise reports and reports on lighting from the grounds and properties near to the School;
• Advised Mr X and other residents on the methods of gathering and sending evidence;
• Installed a noise measuring equipment;
• Communicated regularly with Mr X and other residents;
• Observed the lighting and gathered evidence;
• Reviewed the evidence, applying its professional judgement;
• Contacted the School and advised on the measures it should put in place to mitigate the impact of noise on the neighbouring properties;
• Advised Mr X on the alternative ways of dealing with the disturbances from the School, multi-use games area, pavilion and tennis club through the private court proceedings.
43. When assessing evidence sent by Mr X and other residents Officer 1 exercised his professional judgement in deciding the noise and lighting did not amount to the statutory nuisance. We cannot criticise the Council for its decision if it followed the right process when reaching it. Any shortcomings of the investigation process found by Manager 2 when responding to Mr X’s complaint were discretionary and not enough for us to find fault with the Council. They were unlikely to change the result of the Council’s investigation.

Complaint handling

44. Mr X said the Council’s responses to his complaints did not include reasons for the Council’s position, were dismissive and contained inaccurate and contradictory comments. His complaint, Mr X said, had been dealt with by the same officers throughout except for the investigating officer.
45. Having reviewed the Council’s responses to Mr X’s complaints at stage one and two I found no fault in the content of the Council’s complaint responses or the individuals who responded on the Council’s behalf. The investigation for potential statutory nuisance was carried out by Officer 1. Manager 1 responded to Mr X's complaint at stage one and Manager 2 with no involvement in the case responded at stage two. The complaint process ended with the letter from one of the Council’s directors to Mr X. This is in line with the Council corporate complaint procedure.
46. I found some delays in the Council’s responses to Mr X’s complaint. The Council should send its response at stage one within 20 working days and at stage withn 30 days. At stage one the Council delayed sending Mr X its response by three weeks and at stage two by six weeks. These delays were fault but they were not long enough to cause significant injustice to Mr X.
47. I found fault in the Council’s failure to carry out some of the stage two recommendations, as listed in paragraph 37 of this decision. This is fault which caused injustice to Mr X. Although most of the issues of Mr X’s complaint were not upheld, the Council identified some actions necessary to put things right for Mr X and to try to mitigate the impact of the new developments near Mr X’s property. Even if not a statutory duty but an informal action, once identified by the Council and accepted by its senior leader, Mr X could legitimately expect the Council to follow this through. Failure to do so increased Mr X’s distress, already noted by the Council throughout the process.
48. In its comments to my draft decision the Council suggested that some of the actions identified as necessary at the stage two complaint response, had already been completed before the Council dealt with Mr X’s complaint. I cannot accept this justifies not acting upon the Council’s own recommendations. The Council recommended certain actions at the end of July 2023, so they should be completed after this date.

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Agreed action

49. To remedy the injustice caused by the faults identified, the Council agreed within four weeks of my final decision to complete the recommendations of its stage two complaint response. The Council will provide us with the evidence it has done so.
50. The Council also agreed within three months of the final decision to:
• review its planning enforcement process to ensure it acts in compliance with the Council’s Local Enforcement Plan;
• provide its staff dealing with planning enforcement with the training on the procedure to follow when investigating potential planning breaches.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

I uphold part of Mr X’s complaint. I found fault in the way the Council carried out its planning enforcement investigation, in the delays with dealing with Mr X’s complaint and the Council’s failure to carry out recommendations of the stage two complaint response. Some of the Council’s fault caused injustice to Mr X. I did not find fault with the remaining issues of Mr X’s complaint. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman