Summary: Mrs X complains about the Council’s failure to resolve her complaints about a neighbouring development, causing her to suffer loss of enjoyment and stress. The Ombudsman finds the Council failed to follow its planning enforcement policy, causing Mrs X injustice. The Ombudsman recommends the Council provides an apology, makes a payment and takes action.

The complaint

1. Mrs X complains the Council:
• Has not properly dealt with her complaints of noise nuisance;
• Has failed to enforce planning conditions;
• Delayed dealing with her complaints;
• Has not explained the legal status of a marquee on neighbouring land.
2. Mrs X says she has suffered loss of enjoyment due to noise and access issues on neighbouring land (the “Site”). She has also suffered stress.

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What I have investigated

3. I have investigated the complaints set out above. At the end of this decision I have set out why I have not investigated other matters.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I 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. I 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)
5. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended)
6. 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)
7. 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)
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 spoke to Mrs X and I reviewed documents provided by Mrs X and the Council. I gave Mrs X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Noise nuisance

10. The Environmental Protection Act 1990 (“EPA 1990”) sets out the law on statutory nuisance.
11. Noise may be a statutory nuisance if it unreasonably and substantially interferes with the use or enjoyment of a home or other property.
12. Where a complaint of a statutory nuisance is made to a council by a person living within its area, it must take such steps as are reasonably practicable to investigate the complaint.
13. If the council agrees that a statutory nuisance is happening it must serve an abatement notice.
14. For noise nuisances from a property, the council can delay issuing a notice for up to seven days while the council tries to get the person responsible to stop or restrict the noise.
15. If someone does not comply with an abatement notice the council may pursue a prosecution and fine.

Council noise policy

16. The Council publishes its noise complaint policy on its website. This explains when it receives a complaint of persistent noise (not a one-off event) it will send a letter to the person affected enclosing a Witness Report form to keep a record of the problem. It will also write to the person who is being complained about, making them aware it has received a formal complaint. During an investigation, its officers assess how unreasonable the noise is to the average person. It may set up equipment in the home of the person who has complained to record the noise or it may visit to hear the noise first hand. The success of its action relies on the complainant helping to gather evidence by keeping the diary log forms, allowing access and carefully following instructions on noise monitoring devices.
17. If the officer witnesses the noise and is satisfied it is a nuisance in legal terms they will serve a noise abatement notice. If the noise continues to cause a statutory nuisance this is an offence an offence that may lead to prosecution and / or seizure of noise making equipment.
18. The officer who investigates the case will keep the complainant updated of any developments regarding the complaint.

Planning enforcement

19. Planning enforcement action is discretionary. A council may serve an enforcement notice if it considers it is expedient to do so. It is for the planning authority to decide whether it is expedient to take action: a council does not have to carry out enforcement action simply because the public wants or expects it to.
20. Government guidance, “Ensuring effective enforcement”, says councils should act in a proportionate way. They have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations, which include the National Planning Policy Framework. This 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. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.”

Council enforcement policy

21. The Council publishes its planning enforcement policy on its website. This explains it may decide to take no further action in response to a complaint if: there is no breach, the breach is minor or, because it is not expedient to act.
22. It may decide it is not expedient to act because the harm caused is not significant, and in its opinion formal action would not be in the public interest. In deciding it will balance the harm caused against the likely success of any formal action, the availability of resources, and other cases causing a greater level of harm but whose progress might be delayed as a result.
23. The time to resolve an enforcement investigation varies but it will keep complainants informed at key stages.

What happened

24. Mrs X lives next to a Site where the Owner holds various events.
25. In early 2018 the Planning Inspectorate granted planning permission for the Owner to use the Site as a wedding venue. This was subject to planning conditions to protect Mrs X’s amenity. This included conditions on the number of events each year and the timings. The Owner had to submit and implement a noise management strategy, put up acoustic fencing and have automatic closers on doors. There were also conditions on parking and access.
26. Mrs X complained to the Council about noise from the Site and the failure of the Owner to comply with planning conditions limiting this. She also complained the Owner had failed to discharge or comply with most of the planning conditions, in particularly those about parking and access. Mrs X said she was disrupted by noise from events on the Site and by visitors who struggled to access the Site.
27. In response to enquiries, the Council provided copies of correspondence exchanged with Mrs X and a summary of its actions in response to her complaints of noise nuisance.

Noise

28. The Council explained it monitored the noise following Mrs X’s complaints, from September 2018 and through to January 2019. It also carried out unannounced monitoring during temporary events in June, July and August 2019. On each investigation it found no evidence of noise nuisance. Rather, it found any noise was very low level and did not amount to a nuisance.
29. The Council decided there were no further investigations it could take under environmental health, rather its planning enforcement team would take the lead regarding any breach of planning conditions. It told Mrs X it would not investigate further noise complaints unless there was a material or significant change in circumstances. However, she could take her own action under section 82 of the EPA 1990 if she wished.

Planning

30. The Council explained key officers had left and it had limited records of their actions in response to Mrs X’s complaints.
31. The documents provided show the Council received a significant amount of correspondence from Mrs X about breaches of planning conditions from July 2018 onwards. However, there is a lack of evidence to show the Council investigated each complaint, decided whether to take enforcement action in line with its policy and, then informed Mrs X of its decision on each occasion.
32. The documents show Mrs X asked the Council whether the marquee on the Site was permitted development or needed planning permission. The Council told Mrs X it had spoken to the Owner but this discussion was private. It did not address her query.
33. In July 2019 the Council told Mrs X all planning conditions had been or were in the process of being discharged. However, it did not provide any further details or explanation.
34. The Council says it agreed the Owner’s scheme for acoustic fencing in March 2019 and the Owner agreed to erect this by 31 October 2019. As this did not happen it considered whether to take formal enforcement action. On 21 November the Council served a Breach of Condition Notice (”BCN”) on the Owner. This says the Council may seek prosecution in the Magistrates’ Court if the Owner fails to comply within 56 days of the notice.
35. The Council says it is considering what action to take in relation to the planning conditions concerning highways.

Findings

36. The Council investigated complaints of noise nuisance, found no evidence of noise that amounted to a statutory nuisance and, told Mrs X it would not take further action. I appreciate Mrs X may have a different view as to whether the noise amounts to a nuisance. However, I consider the Council met its duty by investigating and, it reached an evidence based conclusion that no nuisance exists. The Council has followed a proper decision making process and therefore I cannot find fault.

37. However, there is a lack of evidence the Council investigated Mrs X’s planning enforcement complaints in line with its policy.
38. The Council should be able to demonstrate it investigated Mrs X’s planning enforcement complaints, decided whether to take action in line with its policy and, kept Mrs X informed. I cannot say the Council’s decision on whether to take enforcement action or not is right or wrong, simply because Mrs X disagrees. Rather, I must consider whether the Council followed a proper decision making process on each occasion.
39. The Council has provided a brief overview of its actions and further details of the BCN served in relation to acoustic fencing. However, it has not provided a sufficiently detailed chronology or evidence of its decision making on each of Mrs X’s complaints to show it followed a proper decision making process. There is also no evidence it kept Mrs X informed at key stages. In the absence of such, I am not satisfied the Council followed its planning enforcement policy and I find the Council at fault. While I recognise officers have left the Council I consider it should nevertheless hold records of its actions and reasons for its decisions in response to enforcement complaints. I find the Council’s failure to keep adequate records is also fault.
40. The documents demonstrate the Council did not address Mrs X’s complaints about planning matters adequately or, in a timely manner. And, it did not address her query about the legality of a marquee. This is fault.
41. I cannot say the Council would have decided to take enforcement action sooner, or at all, if there was no fault. However, the Council’s fault has caused Mrs X distress and uncertainty about what should have happened. Mrs X has also been put to time and trouble in corresponding with the Council over a lengthy period, with few meaningful responses in return from the Council.

Agreed action

42. To remedy the injustice set out above I recommend the Council take the following actions:
43. Within one month of the date of my decision:
• Provide Mrs X with a written apology for its poor handling of her planning enforcement complaints;
• Pay Mrs X £300 for distress and uncertainty;
• Pay Mrs X £300 for time and trouble;
• Write to Mrs X and the Ombudsman setting out, for each separate planning condition:
1. whether the Council considers the Owner is acting in compliance or, if not,
2. what action, if any, the Council has taken or will take to address the breach, including reasons for its decision.
• Write to Mrs X and address her query concerning the legality of the marquee.
44. Within three months of the date of my decision:
• Review its record keeping procedures and take action as necessary to ensure it keeps adequate records of officer actions on planning enforcement complaints;
• Review its handling of Mrs X’s complaint, identify why it failed to respond to her correspondence on occasion and take action to prevent recurrence.
45. The Council has accepted my recommendations.

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Final decision

46. I find the Council at fault in how it dealt with Mrs X’s planning enforcement complaints. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

47. I have not investigated Mrs X’s complaint that the Council has not yet decided whether her neighbour should pay business rates. This is because any fault has not caused Mrs X injustice.
48. I have not investigated Mrs X’s complaint about the Council’s decision to grant event licences to her neighbour. This is because she had a right to appeal such decisions to the Magistrates’ Court.

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Investigator's decision on behalf of the Ombudsman