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Tameside Metropolitan Borough Council (17 001 638)

Category : Environment and regulation > Noise

Decision : Not upheld

Decision date : 23 Mar 2018

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to act against noise caused by a neighbouring car wash, delayed in assessing the noise, and did not take action against the business on planning grounds. The Ombudsman has not found fault by the Council.

The complaint

  1. Mr X lives near a petrol station. His rear garden shares a boundary with the site. The site includes a car wash, on land next to the shared boundary.
  2. Mr X complains the Council has:
      1. failed to take action against noise caused by the car wash;
      2. delayed in assessing the noise nuisance before making its decision;
      3. failed to act against the car wash under planning rules.
  3. Mr X wants the Council to act under either planning or environmental health powers to stop the business causing noise and odour nuisance to his house and garden. Mr X says the nuisance from the business means he and his family cannot use their garden for the six warmer months or the year, or open any windows at the rear of the house.
  4. Mr X does not want the business to move or close. He considers noise-reducing screens, moving the jet wash and vacuuming equipment away from residents’ properties, and limiting the opening hours, may all improve the situation.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mr X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the issues with Mr X;
    • issued a draft decision, inviting replies from Mr X and the Council.
  2. Mr X has written on behalf of himself and some of his neighbours. I am investigating the complaint as solely from Mr X.
  3. Mr X’s complaints about environmental health enforcement and planning enforcement came to the Ombudsman as two separate complaints. I have dealt with them here as one complaint, because they are both about the same site and the business activities happening there.

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What I found

  1. Mr X complained to the Council in January 2017, primarily about the noise from the car wash jetting and vacuum machines, car radios, and the use of a portacabin on the site. Mr X said the car wash use had intensified and was now using its machinery three metres from his garden boundary, from 8am to 7pm.
  2. Mr X explained in his complaint to the Council that officers had installed noise monitoring equipment inside his house during a previous complaint. The Council did not identify a noise from the car wash which warranted further action. Mr X said the noise had worsened since the Council last investigated. Mr X asked if he was entitled to be able to use his property’s external space in spring and summer.
  3. One of the Council’s Environmental Officers, Officer A, replied to Mr X on 18 January. Officer A advised Mr X he had written to the site’s owner Mr Y, asking him to abate the reported noise. Officer A said the Council was considering how best to investigate the impact of noise on the outside spaces near the car wash. Meanwhile, Officer A offered further internal noise monitoring equipment to Mr X. Officer A advised Mr X he had sent his letter to colleagues about issues he had raised about planning for the site.
  4. Mr X wrote to the Council again on 15 February. He had identified a planning application for a car wash the Council had refused, which the Planning Inspectorate (PI) had also refused at appeal in 2015. He wanted the Council to use this “precedent” to enforce against the car wash near his house. In response to Officer A’s offer of more internal noise monitoring, Mr X said he would prefer to await the Council’s findings on external noise monitoring. He said he wanted to do this particularly now he had found out about the Council’s 2015 refusal of permission for the other car wash.
  5. Mr X chased the Council’s reply by email on 20 February. He stated he had mobile phone recordings of the noise, made in his outdoor space. The Council replied the same day to advise they would respond more fully in due course. Mr X sent further emails in March, including some photographs of activity at the car wash.
  6. Mr X brought his complaint to the Ombudsman in May. As Mr X had not gone through the Council’s complaints process first, the Ombudsman referred the complaint to the Council in June.
  7. The Council contacted Mr X on 22 June to arrange noise monitoring in his back garden. The Council emailed Mr X again on 10 July to chase the matter up as officers had received no reply. By arrangement with Mr X, the Council did external noise monitoring on 12 July.
  8. The Council assessed the recordings made on the 12 July and determined there was no evidence of a statutory nuisance. They decided not to enforce against the car wash. Mr X considered the Council could enforce against the car wash on either environmental health or planning grounds. Dissatisfied with the Council replies to his complaints, Mr X brought the matter back to the Ombudsman.

Assessment

Noise – noise monitoring

  1. Mr X says the Council delayed in conducting external monitoring of the noise. I have considered whether there was fault in the way the Council responded to Mr X’s request for noise monitoring.
  2. The Council had done noise monitoring inside Mr X’s property in 2015 and found no statutory noise nuisance from the car wash. In reply to Mr X’s January 2017 letter, Officer A offered more internal noise monitoring, in response to Mr X’s report the car wash noise had got worse since the last recordings. Mr X declined this offer, preferring instead to have the Council record the noise from his outside space. Mr X’s main concern was the car wash making his garden unusable in the spring and summer months. The Council explained to Mr X that its external noise equipment could only be used in fine weather.
  3. The Council offered Mr X the external noise monitoring in June, by which time Mr X had complained to the Ombudsman. Mr X did not reply to the Council. Officers contacted Mr X again in early July, and they did noise monitoring in Mr X’s garden on a warm and dry weekend day two days later.
  4. While it took about four months, I do not consider the time taken or the way the Council monitored the noise here amounted to fault. I say this because the Council responded to Mr X’s specific concerns about when he considered the car wash’s operations would affect him most: on evenings and at weekends on fine weather days. The basis of Mr X’s complaint and concerns meant the Council could not do relevant noise monitoring until the finer months. Officers also sought to manage Mr X’s expectations that the external monitoring machine they had could only work in fine weather.

Noise – enforcement

  1. Under the Environmental Protection Act 1990, councils must “take such steps as are reasonably practicable” to investigate complaints about noise that could be a statutory nuisance. For a noise to count as a statutory nuisance, it must:
    • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
    • injure health or be likely to injure health.
  2. The statutory nuisance must be witnessed by an Environmental Health Officer (EHO) and they will come to their own professional judgement. The process of deciding what level of noise constitutes a nuisance is subjective. The officer takes account of the level of noise, its length, timing and location in deciding whether a nuisance has occurred.
  3. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined. Those served with a notice can appeal to a Magistrates Court, so councils must have strong evidence against the person or organisation causing a nuisance. If a council loses a case at appeal, they would expose the public purse to claims of costs from the appellant.
  4. It is open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.
  5. The Council investigated Mr X’s complaint by conducting then considering the results of the July 2017 external noise monitoring. Officers determined the recordings did not identify a statutory noise nuisance which would need them to take formal enforcement action against the site or business owners.
  6. I have not found fault by the Council here. Officers were entitled to make this professional judgement. They gathered appropriate and relevant information about the noise in deciding whether the Council should take formal action. There are no grounds for the Ombudsman to go behind the officers’ professional judgement here. I recognise Mr X disagrees with the Council officers’ views. But it is not fault for a council to make a decision with which a complainant disagrees.
  7. I note that in March 2017 Mr X told the Council he had made mobile phone recordings of noise events as evidence of the nuisance. While such recordings may help officers to decide whether to do monitoring recordings of their own, they are not accepted as evidence by courts, because the recordings are not calibrated. There is no way to decide whether the noise recorded is a statutory nuisance. If a council decides to use its powers to prosecute someone over noise, the evidence they put before a court must be robust and properly gathered. Only noise recordings made on officially calibrated and maintained monitoring machines, or formal witness reports by an EHO, fulfil the courts’ needs for statutory nuisance evidence.

Planning – breach of conditions and change of use

  1. The Council granted planning permissions for the site in 1991 and 1995. Mr X says the Council has failed to enforce against the site’s owners for not complying with these permissions. In particular, the March 1991 permission required the site’s developer to erect a three-metre high screen in line with and inset from the boundary with the house which would later become Mr X’s. There is no screen in place. Mr X says the Council should enforce on the basis that the screen was not built, when the 1991 permission required one, or has been removed.
  2. The Council says in the 1990s, there was no formal process to monitor the discharge of planning conditions as there is now. The Council cannot confirm if the screen was installed and later removed, or never installed. Officers cannot find out whether the screen was required to reduce spray from the jet washes, or to reduce noise from the machinery.
  3. I do not consider it is fault for the Council to not try to enforce conditions from the 1990s. If the Council chose to enforce now, the car wash owners may challenge that action because they have conducted a car wash on the site, with no screen required, for almost 30 years. The business could defend any such enforcement by lodging a Certificate of Lawfulness, to regularise the business operating without a screen, arguing the matter is immune from enforcement.
  4. Mr X considers the Council should enforce against the car wash’s current owners for change of use. He says the way the business is now being conducted, as a hand car wash instead of a mechanised one, is so different from the original permission as to require a new permission. Instead of a mechanised car wash and single coin-operated vacuum machine, the hand car wash runs with several staff, jet wash and vacuum machines. He says the jet wash has not operated long enough to be immune from enforcement.
  5. But the Council considers the earlier mechanised car wash and jet wash amount to the same use in planning terms. For planning enforcement, the issue is not how the business is conducted, with jet washes or a single mechanised car washing machine, but how long a car wash of any kind has been on-site. I understand Mr X’s view that the use of the site as a car wash has intensified as more people and machinery to conduct the business is now being used. But while that amounts to a change of working method, the Council considers it does not amount to a change of use, because the use remains as a car wash. In reaching their decision they have assessed how the car wash is now run, and the 1990s planning permissions. The business use in planning terms has not changed. I have no grounds to go behind the Council officers’ professional judgement on this point.
  6. I recognise Mr X considers he may get some decrease in impact from the car wash with a screen in place. But officers have considered the relevant planning background in deciding not to enforce using the 1990s permissions. I have no grounds to go behind their professional judgements.
  7. The Council’s officers visited the car wash site on their travels around the area, and made two specific visits, one in March and one in June 2017. Officers visiting on those occasions did not identify any breaches or improper use of the site for the intended business. They noted the vacuum cleaner used on the cars was being used in the same place as the original coin-operated machine.
  8. Officers had the relevant information about the site’s uses and permissions when making their decision. I have not seen any fault in that process which would allow the Ombudsman to criticise that decision.

Planning – intensification

  1. Mr X makes a further argument that the garage and associated shop is now subordinate to the car wash. From his observations, Mr X says the car wash is the main reason customers attend the site.
  2. The Council considers the car wash is and has always been an ancillary use to the main permission, which is for the garage. The Council considers a car wash is a common ancillary use for any garage site.
  3. It is for officers to determine whether a site’s use has altered in such a way to need different planning permission. Officers consider the car wash business remains ancillary, and changes to working practice or relative popularity of the services on the site do not give grounds for them to challenge the car wash’s planning use. Officers consider the current site uses are regularised and permitted by the existing planning permissions. That is a professional judgement for officers to make, and a decision they are entitled to reach. The Ombudsman has no grounds to go behind that decision.

Planning – 2015 refusal of another car wash

  1. Mr X has argued the Council and PI’s refusal of another car wash on a different planning site amounts to a precedent. The Council refused the permission and the PI dismissed the appeal because it would have an unacceptable impact on the amenity of nearby residents. Mr X says this means the Council should have acted against the car wash near him, to be consistent in the way it deals with car washes.
  2. It was not fault for the Council to not use that 2015 planning refusal as a precedent for the site near Mr X. The two sites and their previous planning uses and permissions were different. Each planning matter is dealt with on its own facts and circumstances. The car wash near Mr X benefits from permission from the 1990s. A planning authority cannot use the refusal of another car wash under the planning system in 2015, at a different location, as grounds to revoke or alter a permission granted over 20 years earlier.

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Final decision

  1. I have not found fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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