Summary: Mr X complains the Council has not assessed the noise levels made by a nearby business’s new fans. He says the Council has not enforced a breach of a planning condition about this noise. There is fault here because the Council delayed carrying out the noise assessment of the fans.

The complaint

1. Mr X complains:
• a nearby business has installed noisier external fans than it has planning permission for;
• the Council has not taken enforcement action against the business; and
• the Council has not carried out a noise assessment within reasonable timescales.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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

4. I have considered:
• Mr X’s complaint and supporting information;
• the Council’s response to Mr X;
• the planning committee report;
• BS 4142 methods for rating and assessing industrial and commercial sound.
5. I have considered the comments Mr X and the Council have made about my draft decision.

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What I found

6. BS 4142 is the recognised standard in the UK for accurately assessing noise complaints. It aims to offer consistency across varied practical situations. The standard describes methods for rating and assessing sound of a commercial or industrial nature. It enables the effects on people nearby to be assessed and the associated risks to be minimised.
7. It provides a comparison between the noise from the source which is being assessed (the specific noise) and the background noise that would exist in the absence of that source.
8. It also recognises that noise may need to be measured at certain times in order to get an accurate picture.

Planning Enforcement

9. A breach of planning control is when a person carries out development without the required planning permission or fails to comply with a condition of a granted planning permission.
10. Councils may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (NPPF, 2018). This says Councils should act proportionately in responding to suspected breaches of planning control and take action when it is expedient to do so.

What happened

Planning application

11. In September 2016, the Council received a planning application to install new plant fans to the rear service yard of a business near Mr X’s house.
12. Mr X and his partner objected to the application. They explained the business is close to their home. They said that they already suffer noise intrusion from the existing fans. They said that over the last three years they have repeatedly complained to the business and the Council about the fans. This was because one was faulty.
13. They said the Council had brought about some changes to the fans which had improved the situation. They objected to the new fans on the basis the application showed the three fans to be located closer to their house. They also said that three fans would be louder than one.
14. The application plan drawings showed the fan noise level to be 36 decibel (dbA) each. Mr X said that the cumulative noise of the three fans would be louder. He also said the local conditions e.g. lack of trees and position of buildings would amplify the noise.
15. The Council’s Environmental Protection Unit made comments about the application. These were specifically in relation to the noise of the proposed fans. It said the new fans were likely to be an improvement with a reduction in noise. However, it recognised the new location of the fans would bring them nearer to sensitive receptors (including Mr X’s house). It recommended the Council should require that a new acoustic fence be erected prior to the new fans being operated. This should be a condition attached to the planning application. Mr X complained that the barrier specifications were not based on any technical calculations.
16. In December 2016, the Council approved the planning application. It attached a condition which required an acoustic fence to be in place prior to the fans being brought into use.

Fan noise

17. Mr X said by March 2017, the development was complete and the fans were working. Mr X said the acoustic barrier was not in place at this time. He reported the noise to the Council and the barrier was installed. This improved the noise levels.
18. Mr X said in May 2018, he began to experience excessive noise levels from the fans every day over the summer. He said this continued into October 2018 (when he made the formal complaint to the Council).
19. In August 2018, Council officers met Mr X and Ms Y at their home. The notes from the meeting show the Council, representatives from the business and Mr X and Mrs Y discussed the complaint. They discussed what had already been done to reduce the noise and what could be done in the future. Mr X said he had asked the business to turn up the fans to full flow so the attendees at the meeting could experience what he hears. He said they did not do this and the noise was barely audible during the meeting.
20. In September 2018, the Council visited the site to monitor the noise. The notes show the Council took readings in different locations both inside and outside Mr X’s house. Mr X complained the Council made mistakes with the measurements. The notes show the manager of the business said he had no control over the fan speed and noise levels. This was not a formal BS 4142 noise assessment.
21. In October 2018 Mr X complained to the Council. He said the Council had not carried out a BS4142 noise assessment. He said this placed full responsibility of the Council’s Environmental Protection Unit. He said this was unfair and compromised the officer’s impartiality. He went on to provide details about noise levels recorded when he paid for a BS4142 assessment. He said that all they wanted was the Council to ensure the fans complied with the noise level specified in the planning permission.

Council’s response

22. In November 2018, the Council responded to Mr X’s complaint. It said the Council would carry out a BS4142:2014 “Method of Rating and Assessing Industrial and Commercial Sound” assessment.
23. The Council have said that planning enforcement has said, there is no specific condition which refers to the fan specification. There is only a condition requiring the acoustic fencing which was approved, and installed. There was a further condition requiring compliance with the approved layout drawing, and other approved documents. Officers have said the fans are in accordance with the drawings and this being the case there is no apparent breach. Officers added that there is nothing to prevent the business from changing fans at a later date without planning permission.

Analysis

24. This issue of the business’s fans has been ongoing for several years. Mr X says the Council’s approval of the replacement fans has made the situation worse.

Environmental Protection

25. The Council could have assessed the noise levels before approving the planning application. Mr X and Ms Y had been repeatedly reporting noise issues related to the business over a three year period prior to the application. Therefore it would have been particularly appropriate for the Council to assess current noise levels including background noise. This would have allowed the Council to properly assess the impact of the proposed new fans.
26. The Council accepted a recommendation from Environmental Protection to attach a condition which required the developer to install an acoustic fence. I have seen no technical evidence to support this decision. A BS 4142 assessment could have identified specific noise levels with and without the fence.
27. Once the business had installed the new fans, Mr X reported the noise issues he was experiencing. This was in May 2018. Mr X said the noise levels were worst during warm weather. Although the Council met with Mr X and visited the site, it did not carry out a BS 4142 assessment during the warm summer months in 2018.
28. In response to Mr X’s formal complaint, the Council agreed to undertake a BS4142 assessment. This was in November 2018. Understandably, Mr X did not consider this an acceptable outcome given the colder temperatures meant the fans were not operating at full flow.
29. The Council was at fault for delaying a BS 4142 noise assessment.

Planning Enforcement

30. A condition says that the development shall be carried out in accordance with a specific drawing. This drawing includes text which reads “New plan fans noise level 36dbA@10.0m”. Mr X says that the noise level is above this. It is not clear from the plans whether this is an average noise level or a maximum noise level. Regardless of this, the Council has taken the figure as an illustrative figure provided by the developer rather than an absolute limit. If the Council felt it was important to identify a maximum noise level, it would have included a planning condition specifying this.
31. Planning Enforcement has decided that it is not a breach of condition and will not take enforcement action. Enforcement action is discretionary and should only be carried out when it is expedient to do so. I cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. I must consider whether there was fault in the way the decision was reached.

Agreed action

32. The Council will carry out a full BS 4142 noise assessment. This will be undertaken once the average outside temperature in Mr X’s village is above 20 degrees Celsius.
33. Within 4 weeks of my final decision, the Council will pay Mr X £200 for the time and trouble taken to make this complaint.

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Final decision

34. I uphold Mr X’s complaint. The Council was at fault for not properly assessing the noise levels caused by the fans.

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Investigator's decision on behalf of the Ombudsman