Summary: The complainants say they incurred expense taking noise mitigation measures for their business, needed because of faults by the Council in how it approved a neighbouring housing development. We uphold the complaint finding fault in the Council’s actions and agree this caused the complainants injustice through the expenses they incurred as well as their time and trouble. The Council agreed to remedy this injustice by reimbursing the complainants and providing an apology.

The complaint

1. The complainants own and run a garage and car repair workshop. Their solicitor complains on their behalf that the Council:
• failed to ensure that a neighbouring housing developer complied with a planning condition requiring them to protect the occupiers of the houses from noise originating from the complainant’s business.
2. The complainants say that as a result they have received complaints about noise from their business causing the Council to serve them with a noise abatement notice. And to comply with that notice and abate the nuisance required the complainants to commission work on their business costing around £9000.

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The Ombudsman’s role and powers

3. 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)
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. Before issuing this decision statement I considered:

• The complaint made by a solicitor on behalf of the complainants and supporting documentation provided. This includes details of the Council’s reply to their complaints, pre-dating this investigation.
• Information provided by the Council in response to enquiries from our office.
• Relevant law and guidance where referred to in the text below.
• Comments made by both parties on two draft decision statements where we set out our thinking about this complaint.

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What I found

The law and guidance

6. The Government has issued guidance about the use of planning conditions. The law allows councils to impose “such planning conditions as they think fit”. (Town and Country Planning Act 1990 s70(1)(a))
7. The National Planning Policy Framework says local planning authorities should keep planning conditions to a minimum. They should only use planning conditions where they are:
• necessary;
• relevant to planning;
• relevant to the development;
• enforceable;
• precise; and
• reasonable in all other respects.
8. Councils can take enforcement action if they find breaches of planning rules. 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)

9. Planning enforcement also depends on the planning authority acting in time. This will be four years or ten years depending on the planning breach.
10. The Environmental Protection Act 1990 sets out the law on statutory nuisance. It says that a noise is a statutory nuisance if it:
• unreasonably and substantially interferes with the use or enjoyment of a home or other premises; or
• injures health or is likely to injure health.
11. If a council decides a statutory nuisance exists, it must serve an abatement notice setting out what steps the person must take to abate (i.e. stop or restrict) the nuisance. The recipient of an abatement notice can appeal to the Magistrates Court.

The key facts

12. The complainants have run a used car sales and repair business on the same site for over 40 years. For the last 20 years they have had a spray booth extraction system for which they received planning permission. In 2012 the complainants began selling new cars from the site. They do not use the spray booth in connection with the sale of new cars.
13. In 2007, the Council granted planning permission for a development of five houses on a plot adjacent to the complainants’ business. The complainants objected to the planning application saying they traded from an industrial area not suited to residential use.
14. The Council produced a planning report setting out its assessment of the planning application. It noted the complainants’ concern that approving planning permission could lead to complaints about a potential statutory noise nuisance from their business.
15. The report says the planning service consulted with environmental protection services. That service advised planning officers to impose a planning condition requiring a ‘noise climate’ assessment and mitigation strategy. The planning officer’s report comments “I am satisfied any potential nuisance can be mitigated by the construction specification”.
16. The Council duly granted planning permission for the new houses with a planning condition referring to the above. The condition said before occupation of the new houses the developer should provide for approval “an acoustic report and noise mitigation scheme designed to protect future residents of the proposed dwellings and adjoining neighbours”.
17. The developer built and sold the houses without complying with the planning condition. In 2018, a resident complained to the Council about noise from the complainants’ spray booth extraction system. The Council investigated this and decided it was a statutory noise nuisance. So, it went on to serve a noise abatement notice on the complainants. It required them to make changes to the extraction system and to reduce the noise.
18. Their solicitor complained to the Council that it had not enforced the planning condition and that as a fundamental condition of the planning permission, this failure to enforce made the development unlawful. And, had a noise mitigation scheme been in place that involved the complainants making changes to their equipment this would have been at the developer’s cost.
19. The Council confirmed the developer had not submitted an acoustic report or noise mitigation scheme and so it had not discharged the planning condition. However, the Council said the measures needed to reduce noise from the complainants’ garage could not be achieved within the development. So, there was no prospect of the developer being able to discharge the condition. For this reason, the Council said it would not take enforcement action.
20. The complainants’ solicitor asked the Council to reconsider. They reiterated the development was unlawful as a pre-occupation condition had not been discharged, and the mitigation scheme could still complete to comply with the planning condition. The solicitor said that had the developer complied with the planning condition then there would not have been a noise complaint and the Council would not have served the abatement notice.
21. In response, the Council confirmed its position as before. It also said it could not take enforcement action because it was more than four years since occupation of the houses. As the breach of planning permission had occurred ten years ago it was immune from enforcement.
22. However, the Council admitted fault saying it had applied an unreasonable planning condition and failed to monitor or enforce it. The Council offered £750 to the complainants as a gesture of goodwill and in acknowledgement it had made mistakes.
23. The complainants have spent more than £9,000 on noise mitigation. Their solicitor has provided emails showing that before commissioning noise mitigation works the complainants took advice from a qualified acoustic consultant on what those works should comprise. They shared that advice with the Council’s environmental health service who agreed with the consultant’s recommendations and the work proposed.
24. The complainants accept they had the right to appeal against the abatement notice. However, they consider the crux of their complaint is that any noise nuisance would not have existed but for the fault in how the Council dealt with the 2007 planning application.
25. In general comments in reply to our enquiries, the Council asked us to consider the following points.
• That the new car sales franchise in 2012 may have affected noise levels. And that in any event it would not be reasonable to link any fault in its handling of the planning application in 2007 with noise complaints so long after the houses became occupied (which was in 2010). It received no noise complaint until 2018.
• That an acoustic report prepared in 2007/8 might not have recommended mitigation.
• That the complainants had a right of appeal against the noise abatement notice and a reasonable chance of success had they appealed.
• That the costs incurred by the complainants to mitigate the noise were potentially excessive.

My findings

26. I agree with the Council that the planning condition it imposed on the 2007 planning permission is problematic. I do not consider it was wrong in principle. It is standard in planning that where a planning authority receives proposals for new housing next to existing businesses that it considers the impact of the business on future occupiers. Acoustic reports are commonplace in this context to measure noise from existing businesses and assess what impact this may have on new occupiers. Such reports will also recommend ways to mitigate that impact.
27. It is not inevitable that any report, if it finds a potential harmful impact from noise, will require changes to those existing businesses which cause the noise. A neighbouring business will be outside the developer’s control (although they may negotiate with the business concerned). But the developer can design or build housing in a way that lessens impact from noise. For example, in the glazing specifications used, façade insulation, the orientation of the houses, the use of acoustic fencing and so on. I consider this is what the Council planning service probably had in mind in 2007 when its report referred to the developer’s “construction specification” minimising noise impact on occupiers.
28. But the condition imposed by the Council which aimed to achieve a construction method that minimised noise impacts was vague. It did not make clear if the developer had to provide a report as a ‘pre-commencement’ condition (although it had to be complied with pre-occupation) although I assume this was the intent. Nor did it specify a framework for the acoustic survey to measure harmful impacts against. Nor did it specify what standards any noise mitigation scheme should achieve. For example, it did not reference the then British Standards. I doubt therefore it was sufficiently precise to be enforceable.
29. However, that is a moot point given the Council made no effort to ensure compliance with the condition. That would appear a significant oversight especially as the planning condition was only one of several ‘pre-commencement’ conditions, including ones requiring approval of materials, fire safety measures and so on.
30. I am aware the policy landscape has changed since 2007. There is more guidance to local planning authorities on how to avoid harmful noise impacts on new development from existing businesses. Developers must also apply to discharge planning conditions, meaning the Council is more likely to identify such oversights. But none of this detracts from the Council’s fault which extends beyond the wording of the planning condition. It extends to not making any attempts to ensure compliance with that condition, however difficult that may have proved.
31. I have gone on to consider if the impact of this fault on the complainants. I do not intend to give any benefit to the Council from my assessment the planning condition was badly worded and possibly unenforceable as a result. Because that is its error.
32. I have considered the Council’s argument that there cannot be a linkage between fault in 2007 and the noise nuisance established in 2018 because of the passage of time. The Council considers something must have occurred in the complainants’ business around 2018 which suddenly led a neighbour to complain about noise. But there is no evidence for this. The Council refers to the business now including a new car sales element which it did not have in 2007. But this carries no weight. First because this applied for several years before any noise complaint. Second, because of the obvious point made by the complainants that new cars do not need re-spraying. It is their spray booth and its extraction system that causes the nuisance. I consider a far more likely explanation for why no-one complained until 2018 was a change of occupation in the neighbouring houses.
33. Second, the Council says that any acoustic report prepared in 2007 may not have identified the business needing to make the changes it did in 2019. I accept that. But this does not mitigate any injustice caused to the complainant. It is an argument that therefore misses the point.
34. To explain further; the Council clearly thought in 2007 there was a likely prospect of noise complaints otherwise it would not have imposed the planning condition requiring an acoustic report. It subsequently established a statutory nuisance caused by the complainants’ business operating a spray booth as it had in 2007. Taking account of these two facts it is only reasonable to conclude on the balance of probabilities, that an acoustic report in 2007 would have recommended mitigation. We do not know if that may have involved a specific method of house construction or recommendations for the business. If the latter, we also do not know whether any changes would be the same as the complainants carried out last year. But the point is that a report would likely have required measures to limit unwanted noise in the houses and so reducing the prospect of a statutory noise nuisance investigation. It is therefore further reasonable to conclude, on the balance of probabilities, that the existence of such a report would mean the complainants would not have ultimately found they were the subjects of a statutory noise nuisance complaint.
35. Third, the Council says the complainants could have appealed the noise abatement notice. It even suggests an appeal could have realistically stood a chance of success. I find this a curious line of argument. I find it hard to accept the Council serves abatement notices that it believes can be overcome at appeal. It also misses the point of why such notices are served. When in response to a notice the recipient acts to abate the noise nuisance then this is precisely what the Council intends when it serves the notice.
36. Finally, the Council suggests the costs of work to the business may be unreasonably high. It provides no detail to support this contention despite knowing of what the work comprised at the time the complainants’ commissioned it. This argument is also further weakened by the knowledge the complainants commissioned the work without knowing if any complaint may result in recommendations in their favour. As their solicitor says, it was their money and so they limited their costs given there was no guarantee of recompense.
37. In summary therefore I find the Council can provide no persuasive argument that the consequence of its failings is not as the complainants say. The Council’s failure to properly condition the neighbouring housing development in 2007 led to the complainants being served with a noise abatement notice. This was always likely to happen once someone complained about noise. Their injustice is that they have experienced the cost and time and trouble of making changes to their business to reduce its noise impact on neighbours to comply with that notice.

Agreed action

38. I am pleased the Council has accepted the findings detailed above. The Ombudsman aims to put complainants back in the position they should have been but for any fault. I considered the only fair remedy in this case was for the Council to
• apologise to the complainants accepting the findings of this investigation: and
• pay £9,500 as a financial remedy; to cover the costs of the works and associated professional expenses as well as the time and trouble they were put to.
39. In response to a draft decision the Council sent us a copy of a letter showing it had apologised and was making arrangements for the payment, to complete within 20 working days.

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Draft decision

40. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to the complainants. I am satisfied the Council has agreed to remedy the injustice and that provides a fair outcome, meaning I can now complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman