Summary: Mr Y, who complains on behalf of Mr X, says the Council has failed to act on reports of noise nuisance and breaches of planning control at a site near his home. However, the Ombudsman has not seen any evidence of fault in how the Council dealt with the matters raised by My Y.

The complaint

1. Mr Y, who complains on behalf of Mr X, says the Council has failed to act on reports of noise nuisance and breaches of planning control at a site near his home. Mr Y says the Council has not:

• understood the nature of the noise problems encountered by Mr X and other residents;
• considered information showing that noise from the site has breached permitted levels;
• taken action against breaches of planning control;
• not addressed all aspects of his complaint and made inaccurate statements; and
• not considered the impact on Mr X.

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What I have investigated

2. I have investigated matters which have occurred within the last 12 months. I have not investigated matters occurring before that time and the later parts of my statement explaining my reasons for not doing so.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. 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

7. As part of my investigation an investigator discussed the matter with Mr Y and considered information he provided. I considered information provided by the Council. A draft version of this document was sent to both parties and their comments considered.

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What I found

Legislative and policy background

8. Councils must look into complaints about noise that could be a statutory nuisance (covered by the Environmental Protection Act 1990).
9. For a noise to be 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; or
• injure health or be likely to injure health

10. Whether a noise is a statutory nuisance is a subjective decision taken by a qualified environmental health officer. The level of noise, its length, timing and location may be taken into consideration in making this decision.

Planning enforcement

11. Councils can take enforcement action if they find planning rules have been breached. However councils should not take enforcement action just because there has been a breach of planning control. Government guidance 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.” (National Planning Policy Framework July 2018, paragraph 58)

Background

12. In 2008 the Council granted planning permission allowing a site near Mr X’s home to be used for the processing, storage and administration of steel.
13. The planning permission was subject to conditions intended to control noise levels and the hours of operation.
14. The processing building was completed in 2012.

Noise Matters

15. The Council received its first complaints of noise nuisance from residents living near the site in late 2012. Mr X first complained to the Council in March 2013.
16. As part its investigation, the Council:

• asked residents to keep a noise diary and considered the information these provided;
• installed noise recording equipment in Mr X’s home;
• carried out spot checks at the site to see if excessive noise could be witnessed;
• liaised with the business about its findings and agreed new procedures and equipment to address the noise issues identified are in use; and
• arranged a liaison meeting with residents and the business to discuss matters.

17. The Council continued to receive noise reports from residents. It carried further monitoring and then complied a report on the matter. This concluded that, although incidents of excessive noise had been recorded they did not amount to a statutory nuisance.
18. Residents received a copy of the report albeit with the personal details of residents redacted. I understand that residents were unhappy with the report and considered it flawed. They told the Council about their misgivings but the Council maintained it had properly considered the matter.
19. The Council has continued to monitor noise at the site. It says that:

• it continues to investigate reports of noise and to liaise with the business to investigate them;
• conducts a review of matters every three months to see if the reports of noise nuisance suggest matters have altered at the site. It says that since 2015 complaints have reduced;

• in recent months it has considered data from a nearby noise monitoring station when considering reports of noise nuisance; and.
• continues to liaise with the business and to seek improvements to their practice where possible.

20. To date the Council has not found evidence of a statutory nuisance.

Planning matters

21. Reports of breaches of planning conditions attached the planning permission have occurred. These include the following:

The premises shall be used only for processing and/or storage of metal products in transit through the Port and not for any other purpose

22. It is alleged that business is not complying with this condition. The Council has investigated and says the business agrees that there has been some internal movement of steel but this is limited and would not cause a nuisance to nearby residents.
23. The Council has concluded that these activities do amount to a breach but it is not expedient to take enforcement action. The breach does not cause any harm owing to the low level of movement of this kind.

Movement of steel around the site

24. It is contended the business is in breach of planning controls regarding the movement of steel around the site including the use of conveyors to move steel inside the processing building. The conveyors were not included on the approved plans.
25. The Council says the conveyors do require planning permission. However, they do not consider it is expedient to take enforcement action as the conveyors allow for steel to enter the building from the west of the site (as required under the planning permission granted to it).
26. The Council accept that conveyors are used to move steel, as are cranes. However, it says the cranes were in place before the planning application was received and therefore do not require planning permission, and that it considers that movement of steel by means other than conveyor would likely increase noise levels.

Storage of steel at the site

27. Concerns have been raised regarding the storage of steel at the site. The Council says that storage of steel is something that is allowed as it is a port related activity and therefore not something controlled by the planning permission.
28. It is however aware that storage of steel might be preventing areas designated for parking and it is investigating to see if the storage of steel is preventing this area being used for the agreed purpose.

Complaint

29. Unhappy with the Council’s actions on both matters Mr X complained to the Council in early 2018. He raised concerns about the Council’s 2015 report into noise which he said was flawed and about the planning permission granted for the site.
30. The Council replied saying that it did not uphold Mr X’s complaint. It said that it had properly investigated the noise reports that were the focus of its 2015 report and that potential breaches of planning control at the site were being investigated. The reply also said that Mr X and other residents had refused to attend liaising meetings from August 2016 onwards.
31. Mr X escalated his complaint. He said he and other residents had not refused to attend liaison meetings but were unwilling as they had misgivings about the 2015 report. Mr X reiterated his views that this report was flawed.
32. The Council did not alter its view on the substantive matters raised.

Analysis

Noise issues

33. It is not for the Ombudsman to substitute our judgement for that of the Council’s officers. Instead he examines the process leading to the Council’s decisions for evidence of fault.
34. I do not consider there is fault in how the Council has considered reports of noise nuisance in the last 12 months. This is because the Council has continued to investigate reports of noise and to monitor the site.
35. The Council has provided evidence showing that when it considered reports of noise, it did so have regard to data from a variety of sources, including from the Port Authority and from the steel company. It accepts that historically the steel company did not always provide data when requested but has shown that in the last year it has complied with these requests. The Council has also continued to liaise with the business to make ensure it is doing all it reasonably can to reduce noise.
36. Mr X says the Council only investigated average noise levels, rather than the impulsive noises of crashing and banging on the site.
37. The Council say that due to the sporadic nature of the noise complaints, Mr X was offered the option the contact the out of hours noise service. Which would have allowed Council officers to witness and assess noise. However, it says Mr X has never used this option.
38. Having considered this point, I am unable to find fault with the Council for relying on the noise monitoring data. This is because, the service which would have allowed it to witness the sporadic noise was not used.
39. The Council has provided evidence showing that it recorded reports of reported noise nuisances and said that it reviewed this data every 3 months.
40. I appreciate that Mr X says the Council is wrong to conclude noise from the site is not a statutory nuisance. However, I have found no evidence of fault in how the Council considered matters and so cannot question its decision.

Planning enforcement issues

41. I understand that Mr X wants the Council to take enforcement action against the breaches of planning control it identified. The Council has considered the relevant matters and concluded that it would not be expedient to do so. This is a decision the Council is entitled to make as set out in national guidance on planning enforcement. I do not find the Council at fault in this matter.

Mr X’s complaints

42. I understand that Mr X feels the Council’s replies to his complaints did not address all the matters raised. I do not agree. The Council’s replies addressed the key issues and explained its position on these issues.
43. Mr X also says the Council was wrong to say that residents refused to attend liaison meetings.
44. The Council say that historically, residents have refused to attend the meetings, but more recently the steel company has refused to attend if Mr X is in attendance, due to the poor relationship between the two parties. However, the Council has said it will continue to try to arrange future meetings including both parties.
45. The substantive fact is that residents have not participated in the liaison meetings and this is reflected in both the Council’s and Mr X’s view of events. However, it does seem that the Council has been proactive in trying to facilitate a meeting and has said it will continue to do so in the future. I do not consider there to be any evidence to suggest the Council are at fault in how it dealt with this matter.

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Final decision

46. I have concluded my investigation, with a finding of no fault by the Council in the matters I have investigated.

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Parts of the complaint that I did not investigate

47. We normally expect a person to approach us within 12 months of knowing something has happened which affects them. Mr X has been aware of the details of the planning permission since it was granted in 2008 and of the contents of the noise report since he was told the outcome and given a copy of the report in 2015. For these reasons Mr X has been aware of both matters for significantly longer than 12 months. While I appreciate that he has pursued his concerns with the Council during the intervening period, it was open to him to approach us sooner and it would have been reasonable for him to do so. For this reason, I do not consider these matters should be investigated now.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman