Summary: Mr X complained the Council had failed to protect his amenity after it approved his neighbour’s planning application. Mr X said that, because of this, his amenity is severely affected. We ended our investigation because the planning enforcement process relating to breach of a planning condition is ongoing. Mr X may come back to us if he remains unhappy at the outcome of the enforcement process.

The complaint

1. Mr X complained about the Council’s failure to protect his amenity when it approved a planning application to change the use of land next to his home.
2. Mr X said that, as a result of the Council’s failure, he is often disturbed by noise from manufacturing processes, often carried on outside workshop buildings.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault cannot be shown to have caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for a council review or appeal.

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

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How I considered this complaint

4. 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, including the plans and the case officer’s report and an update from a planning enforcement officer. I also discussed the case with a planning manager.
5. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
11. Planning applicants may appeal to the Planning Inspectorate in certain circumstances. Planning Inspectors act on behalf of a Government minister. They may consider appeals about:

• delay by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission; or
• a planning enforcement notice.

12. We have no powers to investigate decisions made by the Planning Inspectorate and would not normally investigate any matter it has decided.

What happened

13. Mr X lives next to a site that was used for commercial purposes. Mr X said the planning approval for the commercial purpose included planning conditions to protect his amenity.
14. The Council received a planning application to allow an industrial use. The proposed use was likely to generate noise that might cause disturbance. The Council refused the application and the applicant (the developer) appealed to the planning inspectorate. The inspector upheld the appeal and said that any application should be accompanied by a noise impact assessment, so the Council could properly consider how noise would affect neighbouring amenity.
15. The developer applied for planning permission for the change of use and the Council approved it, subject to conditions. It included a condition requiring a two metre high acoustic fence. It also intended to include a condition to require manufacturing work to be carried out in a workshop on the corner of the site furthest from Mr X’s home. This did not happen, and the Council accepted this was because of an administrative error.
16. The new use began, and Mr X was disturbed by noise from the site.
17. The Council has said that the condition requiring an acoustic fence is in breach. This is because the fence that has been built does not accord with the details approved by the Council before it discharged the condition.
18. The developer has provided the Council with a supplementary acoustic report, which was shared with the Council’s environmental health officer (EHO). The report claims that the fence that exists provides adequate acoustic protection. The Council said that its EHO agreed with the principles of the report.
19. The Council’s planning enforcement officer wrote to Mr X to say he intended to agree the fence, as built, was acceptable.
20. More recently, the Council has said the developer was invited to submit a further application to discharge the planning condition, but this has not happened. The Council said that its enforcement file remains open and if there is no new discharge application, it will decide what action it should take next, if any.

My findings

21. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
22. The Council has admitted it intended to impose a condition to control where manufacturing work took place on the site to protect residential amenity but did not do it. It is likely we would find this omission to be fault, if we were to complete an investigation.
23. However, I cannot complete this investigation because I cannot properly assess or determine the extent of any injustice caused to Mr X. This is because the Council has an open enforcement file relating to the fence, which was also intended as a noise mitigation measure for the site. Planning enforcement action could lead (amongst other things) to:
• a decision to take no further action;
• enforcement for breach of condition in the magistrates court;
• a fresh application and a right of appeal to the Planning Inspectorate; or
• a legal challenge in the high court.
24. Until the planning decision making process along with any subsequent appeal right has reached a conclusion, we cannot know what noise protection measures have been found to be necessary.
25. I should end my investigation now because the Council’s enforcement action is ongoing. We would expect the Council to proceed without unreasonable delay and for Mr X to be kept informed of its progress in line with the Council’s policy and practice. If, when the planning process has run its course, Mr X remains unhappy, he should complain to the Council through its complaints procedure before bringing his complaint back to the Ombudsman.

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Final decision

26. I ended my investigation to allow the Council to continue its enforcement action without undue delay. Mr X may come back to the Ombudsman at the end of the planning process if he feels he is still caused an injustice by what has happened.

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Investigator's decision on behalf of the Ombudsman