Summary: There is no evidence of fault in the Council’s handling of a noise nuisance, under both its environmental health and planning enforcement powers. For this reason, the Ombudsman has completed his investigation.

The complaint

1. The complainant, to whom I will refer as Ms H, says the Council has not effectively addressed a breach of planning permission by a neighbouring business. This means she has suffered a noise nuisance for an extended period of time.

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The Ombudsman’s role and powers

2. 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)
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 reviewed Ms H’s correspondence with the Council, the Council’s investigation notes, and documents related to the planning application and enforcement.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. Ms H lives in a village. There is a small supermarket very close to her home, the side wall of which is only a few metres away.
7. In February 2018, as part of an upcoming refurbishment, the supermarket submitted a planning application for the installation of two new air conditioning units, to be placed on the wall directly opposite Ms H’s property. It also sought permission to install replacement ‘louvres’ (vents) at the front of the building, for the store’s refrigeration plant. The Council validated the application and notified its Environmental Health (EH) department as part of the consultation process.
8. In March, Ms H objected to the planning application. She said she was concerned about the noise the new units and replacement louvres would likely produce.
9. On 5 April, the developer submitted a noise assessment report. The report concluded the proposals would not lead to an unacceptable increase in noise on the surrounding properties.
10. On 6 April, the Council’s EH department provided its own consultation response. This concluded there was a likelihood of complaints about noise nuisance, and recommended conditions be imposed on any planning permission to limit the noise.
11. On 6 June, the Council approved the application. It included conditions requiring the supermarket to limit the noise levels from the air conditioning units, and to operate them only during the store’s opening times.
12. On 26 June, Ms H reported a noise nuisance to the Council. This was registered by the EH department on the same day, and it sent diary sheets to Ms H, for her to record the times she was suffering a nuisance.
13. Ms H completed the diary sheets and returned them on 18 July. The Council then installed noise-monitoring equipment at her home between 14 and 20 August.
14. The Council arranged a visit for 4 September, but postponed this when the supermarket said it was arranging for sound insulation to be installed. The Council re-arranged and completed the visit on 1 October.
15. Ms H emailed the Council on 7 November. She said the air conditioning units were now switched off between 10pm and 7am, but there had been no insulation installed. The Council responded to say the supermarket had confirmed the work would take place in the New Year.
16. The Council visited the site on 24 January 2019. It confirmed the noise produced by the units was unacceptable.
17. On 28 January, the EH case officer emailed a planning enforcement officer. He confirmed he was intended to serve a noise abatement notice on the supermarket. The Council says it was also considering taking planning enforcement action because the development had not complied with the relevant conditions.
18. The Council sought information from the supermarket’s owners on 30 January and 8 February. Then, on 19 February, Ms H complained to the Council the supermarket had installed a fence without planning permission.
19. The Council visited the site on 28 February. On 18 March, it decided the fence was permitted development and not an enforcement matter. However, it noted there was still an ongoing enforcement matter because of the failure to comply with conditions.
20. In May, the Council chased the supermarket’s owners for their response to the information request. It updated Ms H on its progress. On 17 May, after an EH visit, it explained to Ms H that work had commenced, and it would not serve an abatement notice on the supermarket while this was ongoing because it could appeal on this basis.
21. On 24 May the supermarket provided evidence it had completed the work. The Council visited on 10 June to inspect it.
22. The supermarket asked the Council for feedback on 25 June. The Council replied on 27 June to say it had heard nothing further from Ms H.
23. On 28 June, the Council emailed Ms H to arrange a visit for 3 July. Ms H replied to say she was still suffering a nuisance from the air conditioning units, particularly after 8pm and before 7am. The Council then contacted the supermarket to ask whether it could turn the air conditioning units off at 8pm, instead of 10pm (the store’s closing time), and to only turn them on at 8am. It also said it was planning a further visit on 3 July.
24. The Council visited on 3 July. Ms H confirmed the nuisance had subsided because of the reduced operating hours of the air conditioning units. She emailed the Council on 11 July to say the units were being briefly switched on before 8am, and again left running until 9 or 10pm. She also complained about the noise from extractor fans in the store’s toilets and from early deliveries. However, she confirmed there had been an overall improvement.
25. On 16 July, the Council said it had reiterated the need for reduced operating hours with the supermarket. It gave Ms H some advice about the other issues she had raised.
26. The Council visited again on 24 July with noise monitoring equipment. This indicated the noise levels had reduced to a level which would no longer be a breach of the planning condition or a nuisance.
27. Ms H exchanged further emails with the EH case officer in August. She said the noise levels had increased to an unacceptable level again, from the air conditioning units and the louvres. She said she had spoken to the supermarket about early deliveries, and this had resolved the problem. However, she said the noise mitigation work had been ineffective, and the only way to resolve the problem appeared to be to reduce the operating hours and levels of the different units.
28. The EH officer expressed disappointment the problems were still ongoing. He said he would like to visit Ms H’s property again with noise monitoring equipment, as this would allow the Council to serve a formal planning enforcement notice.
29. The EH officer visited on 3 September and confirmed the noise was unacceptable. He emailed the planning enforcement officer on 4 September to confirm there was a breach of the condition.
30. On 10 September, the Council served a formal breach of condition notice. It required the supermarket to either reduce the noise to an acceptable level, or remove the air conditioning units.
31. Ms H had already submitted formal complaints to Council, completing its complaint procedure in June 2019. The Ombudsman then accepted a complaint for investigation. On 24 September, after enquiries from the Ombudsman, the Council confirmed it would also be serving a noise abatement notice, as it had established a statutory nuisance.

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Legislative background

Statutory nuisances

32. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
33. Typical things which may be a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises
34. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
• injure health or be likely to injure health.
35. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
36. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.

Abatement notices

37. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
38. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
39. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Section 82 of the Environmental Protection Act 1990

40. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
41. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

Planning enforcement

42. 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)

Analysis

43. Ms H’s formal complaints to the Council relate to the handling of the planning application in the first half of 2018. She considers there to be a link between this, and the subsequent nuisance she has suffered.
44. It appears there was some confusion surrounding the application, which I will seek to clarify here.
45. The supermarket submitted its application in February 2018. Although it was planning an internal refurbishment, this did not require planning permission, and so the application was only for the external works – the air conditioning units and the replacement louvres.
46. There was a delay by the Council’s EH department in responding to the consultation. In the meantime, the developer commissioned a noise report, which it submitted to the Council on 5 April. The EH department then sent its consultation response on 6 April.
47. The noise report concluded there would be no nuisance from the proposed works. The EH department’s response contradicted this, and recommended the imposition of conditions to limit the noise. It also recommended the developer be asked to submit a noise report, unaware this had already happened.
48. Ms H has criticised the methodology used in the developer’s report, in particular its assertion there was an existing air conditioning plant (which there was not), and also the location from which it undertook background noise recordings.
49. I cannot comment on the merits of Ms H’s criticisms of the report, although I do not dismiss them.
50. However, the Council was not responsible for the report; and, more importantly, it still took the recommendations by EH on board. It imposed conditions, requiring the supermarket to limit the noise levels and operating hours of the air conditioning units, and did so despite the report’s view there would be no noise nuisance.
51. So, even if the report was flawed, I do not consider there is any reason to find fault by the Council here. The report did not affect the outcome of the planning application.
52. Ms H’s complaint also raised some confusion about whether the planning application had been withdrawn, and said she had seen builders on site before its approval.
53. This appears to have occurred because of the two-month delay in the application process. During Ms H’s email exchanges with the Council in early 2018, however, it confirmed the application had not been withdrawn. It also said the main refurbishment work did not require planning permission, and so this would likely explain why Ms H had seen builders there while the application was still pending.
54. So, I do not consider the subsequent problems Ms H suffered are linked to any mishandling of the planning application by the Council.
55. The fact remains the installation of new equipment at the supermarket began causing problems for Ms H almost immediately. The Council has confirmed this is both a statutory nuisance and a planning enforcement matter.
56. It is difficult to separate the problems Ms H describes from the air conditioning units and those from the louvres attached to the store’s refrigeration plant. It appears, however, the nuisance has been overwhelmingly related to the former, because these are considerably closer to her property. The Council’s investigations seem to indicate there is no objectively unacceptable nuisance caused by the louvres.
57. Either way, I do not consider there is any evidence of fault by the Council here.
58. There are two distinct approaches to this issue – as a noise nuisance and as a planning enforcement matter. The Council’s investigations have been led by the EH department, but the two departments have worked together on the issue, which is evidenced by the fact the Council has now served an planning enforcement notice, as well as saying it will serve a noise abatement notice.
59. I do appreciate this matter has been very drawn-out, with approximately 15 months passing between Ms H’s original complaint and the Council deciding to take enforcement action.
60. But I do not consider I can find fault with the Council for this. It has clearly not let the matter drift and has been very involved in the process, visiting the site numerous times, working with both parties, and seeking practical and reasonable solutions to the problems Ms H has suffered.
61. Given the Council has now decided to take formal action, in both the planning and noise nuisance respects, it is arguable this could have happened earlier.
62. But, in both respects, the Council’s powers are discretionary. It is a matter of professional judgement for the Council to decide whether to take an informal or formal approach. It is unfortunate the Council’s attempts to resolve the problem informally were ultimately unsuccessful; but once it became clear these had not worked, it did not delay deciding to take more formal action. I see no reason to criticise its approach.
63. My only small criticism of the Council here is that I cannot see it alerted Ms H to her rights under s82 of the Environmental Protection Act. This allows people to take private action in the magistrates’ courts about nuisances.
64. I do not consider this to be a substantive issue in this complaint, as there was no reason for Ms H to approach the magistrates’ court while the Council was investigating the matter. I do not propose to find fault for this reason.
65. However, when receiving reports of potential nuisances, it is good practice for local authorities to inform the complainant about their rights under s82. I would ask the Council to note this, and consider whether it may be beneficial to include a reference to s82 in (for example) its standard notification letter, if not already present.

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Fina; decision

66. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman