Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Selby District Council (18 009 681)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 15 Mar 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council has not acted to stop noise from a nearby industrial estate. He says the noise interferes with his enjoyment of his home and affects his sleep. The Ombudsman finds fault in how the Council investigated a breach of planning conditions. The Council has agreed to apologise to Mr B, make a payment for uncertainty and investigate further.

The complaint

  1. The complainant, who I refer to as Mr B, complains the Council has not properly investigated his noise complaints about a nearby industrial estate. He says the Council has not carried out effective investigations into the noise, which interferes with his sleep and enjoyment of his home. Mr B says the Council should not have granted the planning permission it did for the businesses. He says it should do more to ensure the businesses stop making noise and comply with planning conditions.

Back to top

What I have investigated

  1. I have investigated Mr B’s complaint about investigations by the Council’s environmental health and planning enforcement teams.

Back to top

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)

Back to top

How I considered this complaint

  1. I reviewed the information provided by Mr B and the Council. I spoke to Mr B about the complaint then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments.

Back to top

What I found

  1. Councils must investigate complaints about issues that could be a ‘statutory nuisance’. This may include noise from industrial property. If they agree a statutory nuisance is happening, has happened or will happen in the future, councils must serve an abatement notice
  2. For the issue to count as a statutory nuisance, it must do one of the following:
    • unreasonably and substantially interfere with the use or enjoyment of a home or other premises
    • injure health or be likely to injure health
  3. There is no clear definition of a statutory nuisance. It is for councils to decide whether an issue is significant enough to amount to a statutory nuisance.
  4. Where there has been a breach of planning control, councils may take enforcement action. A breach may include failing to comply with a condition or limit of the planning permission.
  5. Government guidance sets out how councils should approach enforcement action. It is for the council to decide whether it is expedient to act. The guidance says, a crucial first step is for the council to contact the owner or occupier of the site and engage with them to resolve the matter.
  6. The statutory nuisance and planning enforcement procedures are separate. Any complaint about one or the other will be investigated by different teams. However, professionals from both teams may be able to help each other with their respective investigations.

Background

  1. Mr B has made complaints over several years about noise from an industrial estate near his home. There are two businesses on the estate, in particular, that Mr B says make noise that interferes with enjoyment of his home. I refer to these as Business 1 and Business 2.

Environmental Health (“EH”) investigation into Business 1

  1. Between October 2016 and June 2017 Mr B raised several concerns about noise coming from Business 1. The Council investigated the matter between June and November 2017.
  2. The Council’s EH team considered whether the noise amounted to a statutory nuisance. The planning enforcement (“PE”) team was also aware of the complaint but did not investigate in June 2017 because the EH team were handling the matter. The PE team did, however, provide the EH team with details of planning conditions for Business 1’s site.
  3. The planning conditions for the site said the previous owners must submit a noise scheme. The scheme said, ‘silencers will be installed in the ductwork prior to exhaust to atmosphere. These silencers will be designed to allow typically no more than 45-50dBA at the site boundary.’
  4. The Council monitored noise several times at the site in between June and July 2017. In July 2017, it took readings with noise measuring equipment. It found the noise monitored would not amount to a statutory nuisance in day time but may have a more significant impact at night. It recommended Business 1 employ a noise consultant to investigate.
  5. The Council also asked Mr B for permission to install a noise meter in his home. It asked Mr B to operate the meter when he heard noise and complete a diary of the disturbances outside working hours. Mr B said he had raised complaints about this many times and told the Council of many occasions when he heard noise. He agreed to have a meter installed but said he would not operate this or make a diary as this was onerous given how long the matter had been ongoing.
  6. Business 1’s noise consultant investigated in August 2017. The EH officer found criticisms with how the consultant measured noise from the site compared to background noise. However, the consultant’s readings were consistent with the Council’s. It showed noise levels were slightly above the 45-50dBA condition both at day and night.
  7. The Council found it did not have sufficient evidence of a statutory noise nuisance. However, the noise appeared to breach a planning condition. The officer notified the Council’s PE team and continued to discuss works with Business 1 to reduce noise.
  8. Business 1 took further actions to mitigate the noise. It changed the direction of its air vent to point away from Mr B’s home. It also reduced the speed of its fan to lessen the noise. The Council monitored in November 2017 and found noise levels had reduced. It wrote to Mr B who said the noise levels appeared to have improved but he was now keeping his window closed, as it was late autumn.
  9. The EH officer closed the statutory nuisance complaint and referred the matter to the Council’s PE team. Mr B then raised further concerns about noise. The officer told Mr B he had referred the matter to PE and chased the PE team for a response. However, the PE team does not appear to have responded or investigated the referral from the EH officer.

Planning Enforcement investigation into Business 2

  1. In March 2018 Mr B complained he had seen external forklift truck movements from Business 2 on a Sunday, which breached a condition of the planning consent. He asked the Council to put a stop to the activity. He also raised complaints about other activities that breached planning conditions. He said there were HGV movements before 08:00 and after 18:00, and more than two movements in and out per hour.
  2. The Council’s EH team logged the complaint. The EH officer said it did not appear to be a statutory nuisance issue but may become so later. She asked the PE team to keep her up to date. There is no record the PE team took any action to respond to or investigate the complaint.
  3. Mr B made a formal complaint about the Council’s handling of the matter in late May 2018. From June 2018 onwards, the PE team did then investigate.
  4. An officer from the PE team visited Business 2’s site several times between June and August 2018 and did not note any noise. In August 2018, she noted some noise from forklift and HGV movements but it was difficult to hear over background noise from a nearby main road. The manager said workers had operated forklift trucks on a Sunday outside the boundary several months before, as a one off, and would not repeat this. The officer did not find a breach in relation to HGV movements.
  5. In September 2018, an EH officer visited the site. This was as part of the PE investigation. The EH officer became involved because she had the measuring equipment and know how to measure noise from the site.
  6. The EH officer found a clear breach of planning conditions in terms of the noise from Business 2’s fan. The PE officer contacted the manager who outlined work it had and would do to mitigate noise. In November 2018, after the works, the EH officer conducted further monitoring. The monitoring showed no breach of the planning condition.
  7. The Council closed the PE case as the evidence showed Business 2 was no longer breaching planning conditions.

Planning Enforcement investigation into Business 1

  1. The Council has provided little information about how it investigated a breach of planning conditions by Business 1. The only records I can see that it considered Business 1 are where the PE officer has visited Business 2 and, in passing, mentioned the Business 1 site seemed quiet. The Council seems to have focussed on the planning conditions for Business 2.

Findings

Environmental Health investigation into Business 1

  1. It is not my place to question the merits of a decision, if the Council made this decision properly. I can only assess whether there is fault in how the Council carried out its investigation and considered the various factors.
  2. In this case, I cannot see any evidence of fault in how EH officers investigated Mr B’s complaint about noise. The officers monitored the site on multiple occasions and engaged with Business 1 to reduce the level of noise.
  3. It is clear EH officers accepted they could hear noise from Mr B’s garden. They accepted that, at night, this may cause a loss of amenity and could constitute a statutory nuisance. However, after monitoring, a report from a consultant and works to reduce noise, the officers did not have enough evidence of statutory nuisance.
  4. The fact the noise readings were slightly higher than the planning conditions does not, in of itself, mean there was a statutory noise nuisance. These two areas of law are separate and the officers acted correctly in referring the matter to the PE team.
  5. I note one point of contention is around the Council asking Mr B to operate noise monitoring equipment in his home and make a log. I cannot criticise the Council for taking this course of action. It is clear the officers had some concerns about the noise but not enough evidence to find a statutory nuisance. They asked Mr B to do this so they could gather further evidence of whether the noise was more regular and louder than they had heard on other visits.
  6. I understand Mr B’s reluctance, given the time spent bringing complaints in the past. However, it would not have been practical or feasible for council officers to conduct that level of monitoring from Mr B’s home. They had already visited several times. Without more evidence from logs and an internal measuring device, I cannot question the officers’ decision that they did not have enough evidence of a statutory nuisance.

Planning Enforcement investigation into Business 2

  1. Again, I cannot question a decision the Council made properly, only whether there was fault in how it reached the decision.
  2. In this case, the PE officer visited Business 2 several times. She obtained information on how the business complied with its planning conditions. She also asked an EH officer to monitor noise.
  3. The officer found the business had breached conditions on forklift truck use on one occasion. It was also in breach of noise conditions during monitoring. However, Business 2 assured her it would not breach the forklift conditions again and took steps to reduce noise. Further monitoring showed it was now compliant with its planning conditions.
  4. The Council’s actions were appropriate and in line with the law. I cannot criticise its decision to close the case after it had evidence the planning conditions were being complied with.
  5. I therefore can see no evidence of fault in how the Council investigated the possible breach of planning conditions from June 2018 onwards. However, Mr B made his complaint in March 2018. The Council did not investigate the matter from March to June 2018 and this delay is fault. The fault caused an injustice to Mr B as it led to uncertainty about how the Council was dealing with his complaint.

Planning Enforcement investigation into Business 1

  1. My main concern with the Council is how it handled the issues around a breach of planning conditions by Business 1. The Council apologises for not responding to Mr B’s planning query between November 2017 and June 2018. I do not consider it is as simple as not responding to his query.
  2. The EH officer found a clear, albeit small, breach of the noise levels set out in the noise scheme. This scheme was part of the planning conditions for use of the site. It was the EH officer who referred this matter to the PE team in November 2017. He made clear he had found a breach of planning conditions.
  3. In the Council’s response to our investigation it says a breach of planning conditions is not itself an offence. Officers must consider whether it is expedient to issue enforcement proceedings. In this case the thresholds were not met for either enforcement case.
  4. However, the Council did nothing until at least June 2018. Even after this point, the officer only mentions twice in emails that Business 1’s site appears quiet. The Council did not conduct any noise monitoring of the site, as it did for Business 2.
  5. There is no record of any rationale for why the Council felt it was not expedient to investigate the concerns raised by the EH officer about Business 1 in November 2017. This is fault, which again creates uncertainty about what the outcome of an investigation should have been. This causes an injustice to Mr B.

Agreed action

  1. The Council has agreed that, within a month of this decision, it will:
    • Apologise to Mr B for the delays investigating his complaints about breaches of planning conditions by Business 1 and Business 2;
    • Pay Mr B £100 for the distress and uncertainty these delays caused; and
    • Conduct a further investigation into whether there is a breach of planning conditions at Business 1’s site in relation to noise.

Back to top

Final decision

  1. The Council is at fault in how it investigated a breach of planning conditions. It has agreed to apologise to Mr B, make a payment for the resulting uncertainty and investigate further.

Back to top

Parts of the complaint that I did not investigate

  1. I have not investigated Mr B’s complaint about the Council’s approval of planning permission for the businesses. This is because it granted planning permission several years ago. It is therefore unlikely we could complete a meaningful investigation into whether the Council considered all factors properly at the time.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page