Summary: Mr and Mrs X complain about the Council’s handling of their concerns about business units that neighbour their home. There was no evidence of procedural fault in the Council’s handling that allows us to question the merits of its decision-making in relation to planning enforcement and noise nuisance. The Council has agreed to make a payment to Mr and Mrs X in addition to the apologies it had already made for delays in its correspondence.

The complaint

1. The complainants, who I have called Mr and Mrs X, complain about the Council’s handling of concerns relating to the business units that neighbour their home. Mr and Mrs X complain the Council has failed to take appropriate action to enforce planning conditions which prohibit units on the site from being used in a way that causes detriment to the amenity of the residential area by way of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit (formerly Class B1). Mr and Mrs X are unhappy their complaints about the various units on the site have been ignored by the Council for several years. Mr and Mrs X say enjoyment of their home is severely affected by disturbance caused by come units. They have suffered significant distress and inconvenience repeatedly reporting these issues to the Council. Mr and Mrs X want the Council to ensure the units on the site comply with the terms of Class B1 usage under which planning permission was granted.

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What I have investigated

2. I have investigated how the Council dealt with Mr and Mrs X’s concerns from the beginning of 2020. I have explained the reasons for not investigating events from 2002 at the end of this statement.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. The court has considered the role of the Ombudsman in finding maladministration and how this relates to questions of lawfulness. The court said:

“…The Ombudsman has no duty to determine questions of law. He/she is not acting as a surrogate of the court in determining whether there has been unlawful conduct, but rather, investigating a complaint of maladministration…

Maladministration is a different concept than unlawfulness; consequently, in determining whether the conduct complained of amounted to maladministration, the Ombudsman is not constrained by the legal principles which would apply if they were determining whether the conduct was unlawful;

Unlawfulness is neither a precondition of, nor concomitant to a finding of maladministration; there may be maladministration without unlawfulness, and vice versa;

Even if, with the benefit of hindsight, it may seem obvious that the public body got something wrong, the Ombudsman must look at the question of maladministration on the basis of the information the public body had at the relevant time, and not with the benefit of hindsight;

It is for the Ombudsman to decide and explain what standard he or she is going to apply in determining whether there was maladministration…” (R (on the application of DR) v Parliamentary and Health Service Ombudsman [2015] EWHC 1344 (Admin))

7. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

8. If we are satisfied with a council’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

9. I have spoken to Mr and Mrs X and considered the information they have provided in support of their complaints.
10. I have considered information the Council has provided in response to my enquiries, which includes information confidential to other third parties and legal advice that is subject to legal professional privilege (which strictly prohibits disclosure).
11. Mr and Mrs 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

Relevant Guidance

Planning Enforcement

12. 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:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

13. A council may invite a retrospective application to regularise development which has already been undertaken. Councils must consider any such application in the normal way.
14. There are time limits within which councils can take enforcement action. Development becomes immune of enforcement if no action is taken:

• within four years of substantial completion, where there has been a breach of planning control consisting in the carrying out of planning permission of operational development (building, engineering, mining, or other operations) in, on, over or under land; or,
• within four years, where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse; or,
• within ten years, for any other breach of planning control. (Town and Country Planning Act 1990, section 171b)

Statutory Nuisance

15. The Environmental Protection Act 1990 (EPA) states smoke, gases/fumes, dust, steam, odour, deposits or noise emitted from premises, including land, can be a statutory nuisance. If someone living in a council’s area complains about a statutory nuisance, the council must ‘take such steps as are reasonably practicable to investigate the complaint’.
16. 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.

17. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) 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.
18. 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.
19. 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.
20. If a council is satisfied that a statutory nuisance exists, or is likely to occur or recur, it must serve an Abatement Notice on the person responsible for the nuisance, or on the owner or occupier. The Council can prosecute someone if they fail to comply with an Abatement Notice.
21. 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. (Environmental Protection Act 1990, section 82)

Background

22. Information below about the history of the site is intended to provide background and context to Mr and Mrs X’s complaints since the beginning of 2020.

Planning enforcement complaints

23. In 1997, the Council granted planning permission for a change of use to the site next door to Mr and Mrs X’s property. The permission was granted with planning conditions to ensure the development was appropriate for the area, did not impact on neighbour amenity and to maintain the appearance of the site. Part of this included limiting the site to uses within Class B1 of the Town and County Planning (Use Classes) Order 1987. Class B1 allows for light industry business uses which can be carried out in a residential area without detriment to its amenity (replaced with the new Class E from September 2020).
24. Since planning permission was granted, there have been a number of changes in the businesses that have occupied various units on the site over the years. In 2003, Company Y moved to the site. In 2005, various complaints were made to the Council alleging breaches of planning conditions and operation of units outside the hours permitted by the planning consent granted in 1997. The Council undertook site visits and issued warning letters to the businesses involved. The Council decided no further action was necessary as it found the site was operating within the planning conditions.
25. Further complaints were made in 2007 about businesses working outside permitted hours and the unpermitted storage of vehicles. The Council undertook further site visits and issued warning letters to the businesses involved. The Council closed its cases for these matters on the basis the issues had been informally resolved.
26. In 2009, 2015, 2018 and 2019, the Council has received various complaints that uses by businesses on the site were not authorised under the planning permission granted in 1997. On each of these occasions, the Council found, following investigation and seeking legal advice, that no breach of planning permission had occurred. The Council concluded the businesses using the site were operating under Class B1 and any noise created was not sufficient to cause detriment or harm to neighbour amenity.
27. Mr and Mrs X have since continued to raise concerns about the use of the site to the Council, which are the subject of this investigation.
28. Correspondence between Mr and Mrs X and the Council throughout 2020 and 2021 has related to the usage of units on the site and whether the planning condition on the 1997 consent prohibited a change of use.
29. The Council wrote to Mr and Mrs X on 18 September 2020 to explain the wording of the 1997 planning condition was unclear as to whether it permitted or prohibited change of usage on the site. The Council explained Mr and Mrs X’s earlier complaints about this issue had not led to enforcement action as the Council felt the units were still operating within Class B1 usage. The Council explained it was seeking legal advice to clarify the intent of the 1997 planning condition and would reassess any further noise complaints Mr and Mrs X had made to see if these changed the Council’s view on taking planning enforcement action.
30. The Council wrote to Mr and Mrs X again on 30 September 2020 following their concerns about the handling of their planning enforcement, noise and anti-social behaviour (ASB) complaints about the site. It confirmed the change of use from Class B1 to B8 for storage was a permitted change. The Council confirmed that the change of use of the unit by Company Y was immune from planning enforcement by virtue of being in existence for more than ten years. The Council confirmed it was assessing whether other units on the site were operating in accordance with the planning conditions relating to hours of operation and would update Mr and Mrs X.
31. The Council wrote to Mr and Mrs X on 6 November 2020, following a meeting with them about the issue. It explained it was seeking legal advice on whether the change of use (now lawful) for the unit used by Company Y affected all the other units on the site. The Council reconfirmed its previous view that car uses on the site fell into B1 Class usage and had the businesses on site made a planning application for a change of use at the time, the Council was likely to have granted permission. The Council explained how it was not obliged to take formal enforcement action where a planning breach had not caused harm on the neighbour amenity and would most likely be granted permission. The Council said it was still monitoring the hours of operation issue on the site and that its assessment of Mr and Mrs X’s noise complaints was coming to an end.
32. On 14 December 2020, the Council responded to Mr and Mrs X’s complaints about the Council’s handling and provided an update on the legal advice it had received about the usage of the site. The Council apologised for the delay in updating Mr and Mrs X, explaining that further clarification was needed from the legal adviser. The Council’s legal adviser concluded the units occupied by Company Y had changed the usage of the site to mixed use under Classes B1, B2 and B8 and the original 1997 planning condition no longer applied to the whole site. The Council explained that it needed to consider whether use by another company (Company Z) on the site meant the Council could request a planning application for the whole site. The Council apologised for not explaining the technical change of use earlier. The Council said it was keeping the site under review and would seek planning applications if new businesses moved onto the site which resulted in a further change of use.
33. In January 2021, the Council had further correspondence with Mr and Mrs X to explain it would seek a planning application to regularise the use of the unit occupied by Company Z and would obtain further legal advice about enforcement action if the company declined to make an application.
34. Mr and Mrs X brought their complaints to us in February 2021 because they remained dissatisfied with the Council’s handling. Further correspondence between the Council and Mr and Mrs X continued following this.
35. On 19 November 2021, the Council wrote to Mr and Mrs X to explain it had received further legal advice about site. The Council had concluded the mixed usage of the site was lawful and listed the companies and their usage for each of the units on the site. The Council explained it was still investigating concerns about retail usage by one of the units on the site. The Council also confirmed it had no open environmental health complaints for the site.

Noise complaints

36. Since 2016, Mr and Mrs X have made various complaints to the Council’s Community Protection Team about the noise disturbance created by the businesses on the site.
37. One each occasion, the Council has made announced and unannounced site visits to monitor the level of noise and has corresponded with business owners and the site owner about the disturbances Mr and Mrs X have reported where necessary. The Council has also maintained contact with Mr and Mrs X throughout its investigations and sought their views when proposing to close complaint cases.
38. On 3 November 2020, the Assistant Director responsible for the Community Protection Team and the Officer dealing with the noise complaints had an online meeting with Mr and Mrs X. At the meeting the Council explained how it had considered all the complaints Mr and Mrs X had made about noise from the site and concluded on each occasion that these did not constitute a statutory nuisance.
39. The Assistant Director wrote to Mr and Mrs X on 6 November 2020 in response to their complaints about the Officer’s handling of their noise complaints. The Assistant Director confirmed their satisfaction with the Officer’s handling and apologised the Officer’s communication had not been as frequent as expected.
40. Since June 2020, Mr and Mrs X have had access to the Council’s online noise application, which allowed them to record the noise from the site as it happened. Mr and Mrs X have recorded 76 instances of noise disturbance online from the end of June 2020 to the end of July 2021. On each occasion, the Council has either contacted Mr and Mrs X following assessment of the recordings and/or made site visits to witness the level of noise.
41. On 11 June 2021, the Council Officer spoke to Mrs X and asked her to continue logging noise complaints via the online application as they occurred. The Officer also confirmed that while the noise did not amount to a statutory nuisance, the Council may still act on the issues as anti-social behaviour.
42. On 2 August 2021, the Council issued a Community Protection Warning (under the Anti-Social Behaviour Crime and Policing Act 2014) to the owner of Company Y for excessive noise, which warned a formal Community Protection Notice may be issued if the owner did not reduce the noise levels created by amplified music playing at their unit.
43. On 6 August 2021, the Officer considered the noise application recordings Mr and Mrs X had made. The Officer emailed Mr and Mrs X to explain they were considering further action against another business owner for excessive noise from an extract fan and would be contacting all unit occupiers to remind them to be mindful to not cause disturbance to neighbours.

Analysis

Planning enforcement

44. The issues about the use of this site have been of ongoing concern to Mr and Mrs X for several years. It is clear from the evidence I have seen from them and the Council that this has been a complex matter to unpick in planning enforcement terms and, whether the Council can (and should) now take any form of planning enforcement action.
45. The Council has sought legal advice at various points and has informed Mr and Mrs X of the likely outcomes, including that it may not be able to take enforcement action. The eventual view from the Council’s legal adviser was that the original planning conditions imposed in 1997 were no longer enforceable.
46. I understand Mr and Mrs X’s frustration about this, given they have been raising concerns about the use of the site within the ten-year time limit period. However at those times, the Council had decided the changes of use did not create an unreasonable impact or harm to neighbour amenity to justify taking action.
47. The planning enforcement guidance allows councils to reach their own judgement on whether it is expedient to act, even when a planning breach has occurred. The Council was entitled to make these decisions then and now, despite Mr and Mrs X’s understandable distress at the situation. We are not an appeal body and can only consider the procedure the Council followed; we cannot make decisions based on fairness. Nor can we place ourselves into the role of an officer and replace their views with our own. For the period I have investigated (from 2020), I have seen no evidence of fault in how the Council reached its decision not to take further enforcement action, so I cannot question the merits of the Council’s decision.
48. There have been periods of delay in the Council updating Mr and Mrs X on matters during this time. Mr and Mrs X have repeatedly had to chase responses from the Council, which has no doubt added to their frustration. The Council has apologised to Mr and Mrs X for this at various points. I also recognise this has not been an easy issue for the Council to conclude. That said, I consider the Council’s apologies do not go far enough to address the injustice caused by the delay. I have therefore made a recommendation for the Council to provide further remedy to Mr and Mrs X for this fault.

The Council’s handling of noise nuisance

49. There is no evidence the Council has ignored Mr and Mrs X’s complaints about noise disturbance from the site. It has continued to consider complaints and acted where appropriate. The Council has also considered alternative ways of addressing the issue of noise when the threshold for a statutory noise disturbance has not been met. The Council has sought to keep Mr and Mrs X updated throughout and has met with them to discuss their concerns. There is no evidence of fault by the Council in this respect.
50. I have a great deal of sympathy for Mr and Mrs X and their situation. I also recognise how the impact of this will have been greater given the restrictive nature of the periods of lockdown we have all experienced due to the COVID-19 pandemic. While I can understand why Mr and Mrs X believe the Council should have done more, I cannot comment on the judgements the Council has made in absence of fault in the decision-making process.

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Agreed action

51. Within one month of our final decision, the Council has agreed to make a payment of £150 to Mr and Mrs X in recognition of the time and trouble they have been put to in chasing responses from the Council since the beginning of 2020.
52. The Council will provide us with evidence when it has completed this action.

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Final decision

53. I have completed my investigation and uphold Mr and Mrs X’s complaints about delay. The Council has agreed to provide an additional remedy to the complainants for the injustice caused by this fault.

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Parts of the complaint that I did not investigate

54. Mr and Mrs X say the Council’s handling of their concerns has been causing them injustice since 2002. I have not exercised discretion to examine matters from that date for two reasons. First, I do not believe there are good reasons for why Mr and Mrs X could not have come to us sooner. Second, based on the information Mr and Mrs X have shared with us about their correspondence with the Council since 2005, it appears unlikely I would find fault with the Council’s handling.

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Investigator's decision on behalf of the Ombudsman