Summary: There was no fault by the Council in considering a planning application for a garage. There was a delay in offering to install a noise monitor. The Council’s apology and offer to appoint a noise consultant remedies the injustice from this fault.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has not considered his concerns about noise and spray nuisance from a garage site when granting planning permission.
2. Mr X also complains the Council's response to his complaints to the environmental health department about nuisance from a garage site has been inadequate.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I read the papers put in by Mr X.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. I gave the Council and Mr X the opportunity to comment on my draft decision.

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What I found

8. Mr X sent a first letter of objection to the planning application to the planning officer on 20 February 2017. This mentioned his objections to the planning application, including his concerns about noise from pressure washing and nuisance from outdoor paint spraying.
9. Mr X’s second letter of objection of 22 May 2017, repeated his objections and asked that if paint spraying operations were to continue at the site, the Council serve an abatement notice. After a meeting with the planning officer in July 2017 and an email in August 2017, Mr X’s complaints about noise and paint spraying were passed onto the Environmental Health department on 25 August 2017.
10. The Environmental Health Officer (EHO) visited the garage within 3 working days on 30 August 2017. The EHO’s notes recorded the garage only carried out touch up repairs with water based low volatility paints. The garage said that any major repair work went to a different body shop which had spray booths.
11. Mr X’s partner spoke to the EHO on the telephone on 1 September 2017.
12. The EHO met with the manager of the garage on 13 September 2017 on site and sent Mr X diary sheets to fill in to record problems from spray painting.
13. Mr X telephoned the Council on 5 October 2017. The EHO visited the same day in response and Mr X showed the EHO a video of the noise from the garage power washing cars. The EHO told Mr X the Council needed to take its own noise recordings, on Mr X’s property.
14. Mr X asked for details of the Council’s meeting with the garage owner on 12 October and the Council sent the meeting notes to him on 20 October. Mr X returned the diary of noise and fumes on 13 October.
15. Mr X asked for noise monitoring equipment on 27 October 2017. The EHO told him it was not available till February 2018. The EHO said that officers did not consider the noise a nuisance at this stage.
16. The EHO wrote to Mr X on 3 November 2017. This outlined the Health and Safety Executives (HSE) separation distances from repair spray painting and confirmed the HSE was the enforcing body. The letter to Mr X said that the Council wrote to the garage owner about enforcing separation distances.
17. Mr X made a formal complaint to the Council on 29 January 2018.
18. Mr X said he also complained to the Health and Safety Executive (HSE) about paint spraying close to his house. Mr X says the HSE told him on 27 June 2018 that the garage would not be carrying out any further spraying until it resolved the issue of where to spray.
19. The Council visited Mr X’s house on 8 February 2018 but Mr X did not allow it to install the noise monitor. Mr X told the Council that noise had reduced by 90%, which Mr X felt was because the Council had told the garage it intended to install the noise monitor. The Council denied it told the garage of the exact dates, sent Mr X further noise logs and offered to put in the noise monitor if Mr X changed his mind.
20. Mr X sent a video file to the EHO on 16 February 2018. The EHO saw no paint spraying and did not consider the noise from vehicle washing would be a nuisance.
21. The Council wrote to Mr X with the result of his stage 2 complaint on 21 February 2018. The Council accepted there was delay between Mr X sending his diary sheets to the Council in September 2017 and installing the noise monitor in February 2018. The Council apologised and offered to pay for an independent noise consultant to investigate. Mr X refused access to the noise consultant on 10 April 2018. The Council said it has taken no further action as Mr X will not allow access for a noise monitor or noise consultant.

My analysis

22. Mr X complains that it took from 24 May until 30 August 2017 for the planning officer to refer his objection about noise and paint spraying to the EHO. I would not normally expect a planning officer to refer an objection to the EHO unless specifically asked to do so. Mr X did not make a specific request in the email of 24 May 2017, although he did ask if the Council would serve an abatement notice. On balance, I do not consider there was a specific enough request in the objection to expect the planning officer to pick up that Mr X wanted the matter referred to the EHO. Mr X could have contacted the EHO directly at any point, so I do not consider this was fault.
23. The planning officer agreed to forward Mr X’s complaint to the EHO on 8 August 2017. The EHO received a complaint from Mr X’s partner on 25 August 2017, 13 working days later. I do not consider this to be a significant delay and there was no reason for Mr X not to make his complaint directly to the EHO on 8 August, but it is unfortunate the planning officer did not forward the email more quickly.
24. Mr X complains that after the planning officer forwarded his email, he heard nothing until he contacted the EHO on 13 September 2017 and then received diary sheets on 18 September.
25. On the evidence I have seen Mr X asked for the email to be forward on 8 August 2017 and the EHO spoke to his partner about the complaint 3 weeks later. I can find no evidence of significant delay at this point.
26. Mr X says the EHO told him that he had told the garage owner not to spray paint vehicles within 5 metres of Mr X’s boundary. However, Mr X says that this was not recorded in the notes of a meeting between the EHO and the garage owner. Mr X says the EHO has not answered his direct question in emails on whether EHO told the garage owner this. The Council told Mr X by email on 21 February 2018 that the EHO wrote to the garage owner advising him of the HSE requirement to spray vehicles 5 metres from the boundary and that the HSE would enforce this. I find no fault on this point.
27. Mr X returned the noise logs on 13 October 2017 and complains it took till 27 October for the EHO to tell him that noise monitoring equipment would be installed. It then took until 2 February 2018 for the Council to contact Mr X about installing noise monitoring equipment.
28. The delay in arranging to install noise monitoring equipment from September 2017 until February 2018 was fault by the Council. The Council accepted this, apologised and offered to pay for an independent noise consultant to investigate. This was a suitable remedy to Mr X’s complaint and as he refused access to the noise consultant I cannot see what more the Council can do.
29. Mr X, in his complaint to the Council, says the Council’s offer to appoint a noise consultant was too little, too late. He said the noise he originally complained about over a year earlier had decreased as the garage has reduced paint spraying. Mr X said that noise from car washing in the open air, car radios and use of the building meant opening windows or siting in the garden was unpleasant. Mr X believes the noise level reduced as the Council told the garage it intended to monitor the noise. The Council has not witnessed a noise nuisance.
30. Whatever the reason for the decrease in noise, whether it came about because of the EHO meeting with the garage owner or the warnings that noise monitoring equipment would be installed, if the noise has reduced to a level that Mr X does not wish the noise consultant to visit this would seem to have resolved the complaint. If Mr X considers the noise is still a nuisance, he can contact the Council to arrange for the noise consultant to visit.

Planning complaint

Key facts

31. The garage owner put in a planning application to demolish the existing building and erect a new building for car servicing and repair in January 2017. The applicant put in amended plans in May, June, October and 9 November 2017.
32. The Council consulted Mr X on the plans and he wrote several objection letters, the last of which was on 14 November 2017. Mr X’s main objections were:
• Increased floor space for car servicing and intensification of the historical use of the site.
• Lack of parking and turning space on site for the proposed uses, leading to increased on street parking.
• Concerns about visibility for vehicles crossing the pavement.
• Increased working hours.
33. The Council also consulted the Parish Council, Highways, Environmental Health and Drainage departments. All had no objection to the application, subject to conditions.
34. The planning officers report noted the site had a long standing use as a vehicle servicing garage and had no restrictions on the hours of use. The report listed neighbours objections, including those of Mr X and responded to them.
35. The report noted the garage shared a boundary with Mr X’s property and the new building would be 12 metres away, with no overbearing or overshadowing impacts. The officer considered there would be no significant overlooking as the only garage windows were at ground floor level.
36. The report considered the added garage bays facing Mr X’s property had the potential to cause additional noise and nuisance due to the intensification in use. The garage owner put in a noise report and this was considered by an EHO, along with the objections. The planning officers report noted the site had high levels of background daytime noise and could already work without restrictions but it was not acceptable for the intensification of use to cause significant impact on amenity. So, the officer proposed planning conditions.
37. The report considered paint spraying, which the EHO considered had the potential to cause drift and nuisance to the close by residential properties. The officer considered that as the site could already spray in the open air, it was not reasonable to restrict paint spraying to indoors only. The report said a condition was placed for the applicant to demonstrate how they would limit nuisance from paint spraying.
38. The planning report stated that highway officers had not objected to the plans subject to conditions. The highway authority said that its maximum parking standards would need 5 bays on site, which the applicant has provided more than. The report concluded that it was not considered the proposal would cause any significant parking issues over and above the existing situation.
39. The planning report also considered drainage issues, with the drainage officer requesting a planning condition requiring full details were submitted.
40. The Council granted planning permission in November 2018. The planning permission has not yet begun (as of February 2019), so the conditions do not apply to work at the existing garage.

My analysis

41. The planning officer told Mr X of the amended plans each time the garage submitted them and Mr X could comment. The planning officer consulted with professional consultees and wrote a planning report. I can find no fault in the Council’s administrative process. I understand that Mr X was dissatisfied with the responses and time taken to reply by the planning officer. However, the planning officer’s role was to consider his objections and make a decision on the planning application. So I would not expect them to be in correspondence with an objector.
42. Mr X complains the hours of use placed on the planning permission were unreasonable. He considers that 8-6pm Monday to Friday and 8-1pm on Saturdays is reasonable.
43. The planning officer placed a condition on the new planning application that no activity, other than office use, should be carried out on the site other than 8-6pm Monday to Friday and 8-2 pm on Saturdays. Given the current garage has no restriction on hours of use, the condition seems reasonable to me and as it is only one hour different from the hours Mr X considers reasonable I find no evidence of fault on this point.
44. Mr X’s main concerns of noise and air quality impacts, was included as a ‘considerable concern’ in the planning officers report. The report said that ‘in this regard it is necessary to consider what additional impacts will be as a result of the proposal, compared to the lawful position on the site at present’. The report went on to say ‘the additional bays and having doors facing Mr X’s property will intensify the existing use and has the potential to cause additional noise and nuisance’.
45. The report included the EHO’s consideration of the noise report from the applicant. The EHO said that it would not be acceptable for the intensification of the use to cause significant adverse impacts on amenity. In his response to the consultation the EHO recommended either a list of measures that should be imposed to help prevent further impacts on amenity and/or a noise condition to limit noise levels.
46. The planning officer’s report said that taking into account of the existing use of the site, conditions were proposed in respect of working hours, noise levels in gardens and no car washing outside an area enclosed by a fence. The planning officer’s report said the other suggested conditions were not reasonable or enforceable.
47. The planning officer’s report also noted that more cars on the site could result in additional nuisance from paint spraying. So, a condition was imposed asking the applicant to demonstrate how they would limit nuisance caused by paint spraying and a restriction on full body spraying.
48. Mr X objected to the application, as he had concerns about the lack of parking on site. Highway officers were consulted and had no objection to the application, subject to conditions.
49. I appreciate Mr X disagrees with the planning officer’s decision on the planning application and it is clear from the report that the planning officer understood the development could impact Mr X’s property. However, the planning officer considered objections, took advice from professional consultees and considered all the information available, including the existing use of the site, before reaching a decision. So, I can find no fault in the Council’s consideration of the planning application.
50. Mr X has complained the Council has approved the development before issues such as lighting, drainage, parking and the entrance have been precisely detailed. Instead, the planning officer has placed several planning conditions, requiring the applicant to put in details before the use starts. As the planning officer considers the development acceptable, subject to these conditions, I do not consider it fault for the Council to grant permission in this way.
51. Mr X has raised several complaints about compliance with the planning conditions. As the planning permission has not commenced, the Council cannot take any action over the planning conditions. I find no fault on this point.

Light pollution complaint

52. Mr X says he made a complaint about light pollution, which a Council officer said she sent to the EHO in November 2017. Mr X complains the EHO has not contacted him about this complaint but the planning officer told him the lights did not need planning consent.
53. I can find no evidence the Environmental Health Department has given Mr X a written response to his complaint about light pollution. If the Council cannot provide evidence the EHO has responded to the complaint about light nuisance then I consider this to be fault and the complaint should be remedied by the EHO writing to Mr X with the outcome of the complaint, after it has been investigated.

Marquee

54. Mr X complained to the Council the garage had put up a Marquee without permission. The Council said it received the complaint in November 2017, Mr X said the issue had been outstanding since July 2017. The Marquee blew down in the wind in early 2018 and so the Council took no action on this point. Given the marquee turned out to be temporary, I do not intend to investigate this point further as it is not clear that it would have needed planning consent as a permanent structure at any point.

Advertising Sign

55. Mr X complained to the Council that the garage put up an advertising sign without planning consent. Planning consent was granted for this sign in January 2019.

Recommended action

56. The Council should appoint a noise consultant, as it has already agreed to do so, if Mr X agrees.
57. The Councils environmental health department investigates Mr X’s complaint about light pollution from the garage and writes to him with the conclusion within two months of the date of the decision, if it has not already done so.
58. The Council writes to Mr X with the outcome of its investigation into the advertising banner within two months of the date of the decision.

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Final decision

59. I have completed my investigation. With regard to the planning complaint, I have found no evidence of fault by the Council and so it is not upheld. The complaint against the environmental health department is upheld as there was delay. This complaint is upheld. I consider the remedy suggested above is a satisfactory remedy to Mr X’s injustice.

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Investigator's decision on behalf of the Ombudsman