Summary: Mr C complained about the way the Council responded to his reports of noise, disturbance and breaches of planning control. Mr C says he suffered excessive noise and disturbance and spent unnecessary time and trouble in trying to resolve the matter. We have found delay by the Council but consider the agreed actions of an apology, £300, review of an outstanding enforcement issue and procedural review are enough to provide a suitable remedy.

The complaint

1. Mr C complains the Council has failed to take effective action in response to his reports from September 2019 to December 2020 of noise, disturbance and breaches of planning control from nearby premises. In particular, Mr C says the Council failed to issue a stop notice against an unlawful bar and unreasonably delayed in issuing an enforcement notice. Mr C also says the Council failed to take any action about unauthorised showroom/shop use.
2. Mr C says because of the Council’s fault he has suffered excessive noise and disturbance and threatening behaviour which has caused him stress and anxiety and affected the value and saleability of his property. Mr C also says he has spent unnecessary time and trouble in trying to resolve the matter.

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What I have investigated

3. I have not investigated the parts of Mr C’s complaint about the way the Council granted a premises licence to a drinking establishment in April 2019 or its failure to provide information under the Environmental Information Regulations 2004 for the reasons explained at the end of this statement.

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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 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)
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), 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 read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party information. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Statutory nuisance

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

12. 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.

13. 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.
14. 
    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.
15. 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.
16. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
17. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
18. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Planning enforcement

19. Planning authorities may take enforcement action where there has been a breach of planning control. Government guidance makes clear that enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control.
20. Section 171A of the Town and Country Planning Act 1990 defines a breach of planning control 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.

21. The planning authority may invite a retrospective application to regularise development which has already been undertaken. It should take care not to fetter its discretion prior to the determination of any application and any such application must be considered in the normal way.
22. A Planning Contravention Notice enables a local authority to require detailed information about potential breaches of planning control.
23. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
24. A stop notice can prohibit any or all of the activities which comprise the alleged breach(es) of planning control specified in the related enforcement notice, ahead of the deadline for compliance in that enforcement notice. A person who contravenes a stop notice is guilty of an offence. Compensation may be payable if it is later determined that there was no breach of control (but not if, when there is a breach, that breach is later granted planning permission on appeal or otherwise).

Key events

25. Mr C’s property is within a building that has residential units on the upper floor and a commercial area on the ground floor with a basement area.
26. Mr C emailed the Council towards the end of September 2019 to report a breach of planning control. Mr C explained that a drinking establishment had been operating from the ground floor and basement area of his building for about six weeks. Mr C explained the use had initially been on a Friday evening until 11pm but had been recently extended with noise from customers and music. Mr C said the drinking establishment did not have planning permission and also reported that an illuminated advertisement had been installed on the front of the building. Mr C said he had also made a report to the Council’s noise team. Mr C also wrote to the Council in similar terms.
27. The Council advised Mr C to telephone its noise team when the noise was happening. Mr C did so in October and the Council’s noise team visited his property. The Council noted noise from customers talking below was travelling upward due to poor sound insulation but did not consider the noise witnessed constituted a statutory nuisance.
28. The Council also visited the site in October about the reported breaches of planning control. The photographs from this visit show an advertisement for a bar at the front of the property and the internal layout of a wine store, bar area and basement.
29. The Council issued a planning contravention notice in November seeking information about the alleged breach of planning control through use of the ground floor as a mixed retail use and drinking establishment. The Council received the requested information within the required timescale. This confirmed use as a bar had started at the site and there was a sign to the front.
30. A further visit in November by the Council’s noise team noted loud music which was considered to be a statutory nuisance. The Council issued a noise abatement notice for the playing of excessive amplified music and required any live music or amplified sound to be played at a level that would not cause nuisance to neighbours. The Council provided guidance to the owner that music should not be audible at any time outside of the entrance doors. The Council wrote to Mr C to confirm it had issued a noise abatement notice.
31. Mr C’s log refers to further instances of noise including from loud music but that he is waiting for a copy of the noise abatement notice before reporting the incidents to the noise team.
32. The Council prepared a report recommending a planning enforcement notice be issued for the unauthorised use of the ground floor area of the property as a retail unit and drinking establishment in December.
33. The Council’s report above noted a 1985 planning permission which described the ground floor and basement as a warehouse. There was no record of planning permission for retail use. The Council considered the current mixed use incorporating a bar use was not immune from enforcement action as it had not existed for more than 10 years. However, the use of the unit as a warehouse with a connecting retail unit selling wine appeared to have been in operation for more than 10 years and would be immune from enforcement action. The report further noted there had been consent for an illuminated sign in 1986 but the site at that time was not in a designated conservation area. The current sign did require consent as it was illuminated and now within a conservation area. The report considered the possible use of a temporary stop notice or full stop notice was not appropriate given the sporadic nature of the breach.
34. The Council did not issue an enforcement notice at this time. The Council says this was because the premises were closed over the New Year and the owners had confirmed they would submit a planning application to regularise the breach. The Council says action was then affected by COVID-19 restrictions from March 2020.
35. Mr C reported the bar had reopened and reported one instance of noise from the use of amplified music towards the end of January 2020. The operator contacted the Council to confirm the intention to make a planning application.
36. The use of the premises as a bar was effectively stopped by COVID-19 restrictions towards the end of March. Mr C does not report any further instances of noise from the use of the premises as a bar until August.
37. The Council received an application for a temporary change of use to the ground floor premises at the front of the building from class B8 (warehouse) use to class A4 use to allow public wine tastings in May 2020.
38. Mr C reported amplified music and noise from an event held at the property in August and noise from a piano at the property in September. The noise team were unable to visit due to COVID-19 restrictions.
39. The Council treated the above application as withdrawn in September on the grounds the applicant had not provided enough information. The applicant subsequently appealed the non-determination of this application to the Planning Inspectorate with a scheduled hearing date in July 2021.
40. Mr C contacted the noise team again in September 2020 but Mr C says the bar closed before an officer could attend the premises. Mr C contacted the Council again on 8 October. The Council visited in response to this report and noted music but not at a level that required further action. Mr C contacted the Council again on 16 October but says the Council could not attend due to the volume of reports it was receiving at the time. The Council did not receive any further reports of noise during the relevant period of my investigation.
41. The Council visited the site twice during October and noted the opening times being advertised for the bar and that it was in use. The Council contacted Mr C in October to say it was considering the content of an enforcement notice rather than a stop notice and would let him know the outcome. The Council subsequently confirmed to Mr C in early November that it had passed the matter to its legal team.
42. The Council prepared a new enforcement report and issued an enforcement notice in November 2020 for the material change of use of the land to a mixed bar/shop/warehouse use and erection of an illuminated projecting sign on the front of the property both without planning permission. The notice took effect in December and required the bar use to stop, removal of all bar advertising, removal of music equipment and the illuminated sign. The Council confirmed the serving of the notice and provided a copy to Mr C in in November.
43. This notice was the subject of an appeal to the Planning Inspectorate. During this appeal process the Council confirmed its assessment of the site as a single planning unit in mixed use and provided detailed reasons for this view. The Council also noted caselaw that established a use did not have to be occurring at the time of issuing an enforcement notice.
44. The Council subsequently received a further application for a permanent change of use from an existing wine warehouse to wine bar in January 2021. The Council granted planning permission subject to conditions and noise mitigation measures in May 2021. As a result, the Council has withdrawn the enforcement notice it issued in November 2020 which had been the subject of an ongoing appeal.

My consideration

Noise and disturbance

45. The Council visited Mr C in response to his report in October 2019 but did not consider the noise witnessed constituted a statutory nuisance. The Council visited again in response to Mr C’s report in November and issued a noise abatement notice after witnessing a statutory nuisance.
46. We can only investigate the Council’s response to reports. Mr C did not make further noise reports for a period after the Council had served the notice as he was seeking a copy. It remained open to Mr C to report further instances of noise during this period to allow the Council to witness the noise and decide if it constituted a breach of the notice. I consider it would have been reasonable for Mr C to do so. Mr C did not report any further incidents of noise until one incident at the end of January 2020.
47. Mr C then reported noise from amplified music and noise from an event held at the property in August and noise from a piano at the property in September. The Council was not able to visit to these two reports due to COVID-19 restrictions. Mr C made one further report in September but the bar closed before an officer could attend. The Council responded to a report in October but did not witness a statutory nuisance and could not attend one further report due to the volume being received at the time.
48. Based on the information provided, I consider the Council responded promptly to Mr C’s initial reports and took appropriate action. I also see no obvious fault by the Council in the way it responded to Mr C’s subsequent reports in the context of the situation at the time.

Breaches of planning control

49. The Council’s enforcement policy sets out its approach to planning enforcement and how it prioritises reports. This says that unauthorised development that harms the amenity of an area, listed building or conservation area will be treated as a priority. The policy also says the Council will aim to acknowledge reports within three days and make a decision on 70% of cases within 12 weeks. The policy says officers will try to keep people who have reported a planning enforcement issue updated and will inform them of the outcome of the investigation.
50. I have seen no evidence that Mr C’s report of a breach of planning control made to the Council in September 2019 was acknowledged in line with the Council’s policy. However, it is clear the Council visited the site in October and issued a planning contravention notice in November seeking information from the owner. The Council prepared a report in December after receiving the requested information and considered serving an enforcement notice. The Council was in contact with Mr C during this period about the progress of its enforcement investigation. I see no undue delay or other fault in the Council’s approach to this point.
51. However, I do consider the Council unreasonably delayed taking enforcement action following its decision in December 2019 that the use was unauthorised and it was expedient to take action. The Council did not issue an enforcement notice until November 2020.
52. Whilst noting the impact of COVID-19 and the submission of a planning application to regularise the use during this period, I consider the delay to be excessive and this constitutes fault. I give little weight to whether the use was ongoing as the Council’s own stated view was that a use did not have to be occurring at the time of issuing an enforcement notice.
53. I have to consider the impact on Mr C’s amenity from the unauthorised use and advertising sign during this period. I note the use and associated noise and disturbance was intermittent with extended periods when there was no noise or disturbance as the premises were not in use. I also note the Council has subsequently granted planning permission for the use. However, this is subject to conditions and noise mitigation measures.
54. Based on the information provided, I consider Mr C has been caused unnecessary time and trouble in pursuing the matter and suffered noise and disturbance for longer than necessary due to the delay in the Council serving an enforcement notice. I also note that despite the granting of a planning permission for the bar use that the issue of the advertising sign remains outstanding.
55. The Council has provided cogent reasons for how it has assessed the premises in terms of planning units and why it did not issue a stop notice. These are decisions the Council is entitled to reach. I see no evidence of fault in the Council’s approach which would allow the Ombudsman to question the decisions reached although I appreciate Mr C takes a different view.

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Agreed action

56. The Council has agreed to the following action to provide a suitable remedy to Mr C:
1. write to Mr C to apologise for the delay in issuing the enforcement notice within one month of my final decision;
2. pay Mr C £300 to recognise the impact on his amenity and time and trouble in pursuing the matter within one month of my final decision;
3. review the position in relation to the advertising sign above the bar and decide what, if any, enforcement action to take and provide the outcome of this decision to Mr C within one month of my final decision; and
4. review its enforcement policy to ensure open investigations are regularly reviewed and not allowed to drift and reports are acknowledged in line with the policy within three months of my final decision.

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Final decision

57. I have completed my investigation as I have found fault by the Council but consider the agreed actions above provide a suitable remedy.

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Parts of the complaint that I did not investigate

58. I have not investigated the part of Mr C’s complaint about the Council’s decision in April 2019 to grant a premises licence. This is because Mr C had sought a review of the premises licence with the outcome being in March 2021. I acknowledge that Mr C did not have the opportunity to make representations about the original April 2019 licence decision as he was not aware of the application and did not have a right of review as he did not become aware until use started in the summer of 2019. However, if we had investigated the original 2019 decision and found fault the likely outcome would have been to seek a review without the identified fault which would have allowed Mr C an opportunity to make representations and reinstated his appeal rights. This has now happened albeit through his own action and in effect superseded the original decision. In these circumstances, I do not consider it would be a good use of the Ombudsman’s limited resources to investigate the April 2019 decision now. The outcome of the March 2021 review also had its own right of appeal to the magistrates court which Mr C has confirmed he was aware of at the time. I consider it would have been reasonable for him to exercise this right and have also noted the Ombudsman cannot provide the outcome he is seeking of quashing the decision or revoking the licence. Finally, I also noted the Council had not had the necessary opportunity to consider a complaint about this decision making process in the first instance.
59. I have not investigated the part of Mr C’s complaint about the failure to provide information as he had already made a complaint to the Information Commissioner.

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Investigator's decision on behalf of the Ombudsman