Summary: Mr B complained the Council failed to act when he reported a breach of planning control and noise nuisance. The Council failed to consider information presented to discharge a planning condition or consider whether enforcement action was appropriate. That left Mr B with potentially less protection from noise. The Council also failed to carry out further noise monitoring as it promised. An apology, payment to Mr B and an action plan to address the planning condition is satisfactory remedy for the injustice caused.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council failed to act when he reported a breach of planning control and noise nuisance.

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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. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided
• Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Assessments of noise

5. BS8233:1999, which was relevant at the time the Council processed the planning application in this case, set the criteria for internal noise levels in residential properties. This said 30 dB was a good standard in bedrooms at night with 35 dB a reasonable level.

Environmental health controls

6. The Environmental Protection Act 1990 (EPA) places a duty on a council to investigate any complaints of ‘statutory nuisance’. The EPA states councils must take such steps as are reasonably practicable to investigate complaints about noise that could be a “statutory nuisance”. The noise complained about might be loud music, barking dogs or noise from industrial, trade or business premises.
7. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other property; or
• Injure health or be likely to injure health.
8. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement about whether a noise is a statutory nuisance considering several factors such as the activity, locality, time of day, frequency and duration of the noise.

What happened in this case

9. Mr B lives in a new development in an area which has a mix of uses. Mr B lives close to a commercial unit and overlooks the rooftop plant enclosure. When the Council granted planning permission for the development it imposed various planning conditions. That included a planning condition which said:
• full details of noise mitigation measures for all plant and processes shall be submitted to, and approved by, the local planning authority prior to the commencement of relevant part of development.
10. The reason for the condition was to safeguard the amenities of future residents and neighbouring properties.
11. The developer put in a report to discharge the condition in 2011. That based the internal noise criteria for residential dwellings on the standard referred to in paragraph 5. The report said to meet those internal noise limits noise from fixed plant and associated noise should be no higher than 45 dB at 1 metre from any noise sensitive window. The report also referred to World Health Organisation guidance which said to avoid serious annoyance noise levels in external amenity areas such as balconies should not exceed 55 dB.
12. The developer produced a further report in 2012. That repeated the internal noise criteria referred to in paragraph 5.
13. The Council has not discharged the condition. The Council contacted the developer in 2014 and 2015 though and raised concerns about the plant noise targets proposed. The Council noted the developer was proposing a target of 5 dB below background noise and stated the Council was seeking a noise target of 10 dB below background noise levels. There is no evidence of further progress on that issue since then.
14. Mr B reported noise from the commercial property in 2018. An environmental health officer visited but did not identify noise at nuisance levels. The officer told Mr B that.
15. Mr B commissioned his own noise report. That noise report identified plant noise as consistently above 60 dB over a 24-hour period. The report stated plant noise exceeded the representative background sound level by 9 dB during the day and 19 dB during the night.
16. Mr B provided the Council with a copy of the report in November 2018. The Council wrote to the operator of the business to seek an urgent meeting. That resulted in a visit both to the site and Mr B’s property in January 2019. During the visit to the commercial property officers identified an item of plant which had characteristics like the intermittent noise described by Mr B. The operator of the business agreed to review the plant in operation. The operator of the business then contacted the Council in February 2019 to tell it about the works completed to correct a refrigeration unit.
17. The Council emailed Mr B’s solicitor about the findings of the visit. The Council told the solicitor it did not consider the audible noise unreasonable or substantially interfering with the enjoyment of Mr B’s home although it advised an evening assessment could result in a different conclusion. The Council said it would carry out a night-time assessment. The Council also said it would consider whether the operator was breaching any planning condition. The Council told Mr B’s representative it would get back in touch once it had confirmed the availability of equipment to take noise measurements during the evening.
18. The Council carried out a further visit and took evening recordings in November 2019. The findings showed audible noise on Mr B’s balcony. The Council noted the recordings on the balcony complied with the 60 dB limit referred to in the developer’s report. The Council noted noise levels were between 6.5 and 6.7 dB above the background sound level of 53 dB which, according to the standards, would be an indication of an adverse impact depending on the context. The Council's conclusion at that point was use of the balcony would not be expected at that time of night.
19. For Mr B’s bedroom the results showed levels only just exceeded the desirable limit of 30 dB but achieved the reasonable design level of 35 dB. It recorded subjectively noise of the plant was just audible when standing in the bedroom around 1 metre from the window facing the plant room. The Council noted the noise could be considered slightly intrusive in an otherwise quiet bedroom. The Council did not consider it was at a level considered to have a significant impact on the well-being of an occupant.
20. The Council decided though there was a potential for improvements to the amenity on the balcony for the evening by lowering noise levels. The Council therefore recommended the operator of the business reduce noise levels in line with what was originally recommended for planning, which was 10 dB below background noise. The Council noted the operator of the business should reduce the noise level as far as reasonably practical so it was equal to or less than the prevailing background level. I am not aware of progress on that since.

Analysis

21. Mr B says the Council failed to ensure the developer provided a plan to control noise from a development close to his property. Mr B says because the Council failed to do that he has experienced noise nuisance from plant and machinery when he should not have done. The evidence I have seen satisfies me the Council, when granting planning permission for the development complained of, imposed a planning condition. That planning condition required the developer to provide details of noise mitigation measures for all plant and processes for the Council’s approval before beginning the relevant part of the development. The condition made clear the Council imposed it to safeguard the amenities of future residents and neighbouring properties.
22. The Council says the developer has not breached the condition because the Council has never discharged the condition. I am concerned about that. The condition required the developer to comply with it before beginning that part of the development. The evidence I have seen satisfies me the developer provided two reports in 2011 and 2012 which detailed proposals to mitigate noise from the site. However, other than brief correspondence from the Council in 2014 and 2015, querying the decibel level proposed by the developer, I have seen no evidence to suggest the Council followed up on the noise mitigation levels proposed. Nor have I seen any evidence the Council considered whether enforcement action was appropriate given the developer completed the development without first having approval of the proposals for noise mitigation. I consider the Council’s failure to properly deal with the proposals put in by the developer and to follow up to ensure an approved scheme for noise mitigation was in place before the development was completed is fault.
23. The Council suggests the only recourse for complaints about noise in this case is through environmental health. However, I am satisfied that is only the case because the Council did not act to ensure the developer complied with the condition it imposed on the planning permission to enable it to approve noise mitigation measures for plant and processes. So, irrespective of any environmental health assessment of noise the Council should have had powers to control noise from the site through the planning condition. It is the Council’s failure to ensure that condition was discharged and a noise mitigation scheme approved that means Mr B only had the option of environmental health legislation to control noise from the site. I do not consider that provided Mr B with the same protection as approval of measures to discharge the planning condition may have provided. That is because environmental health can only act on noise if it considers the noise a statutory nuisance. In this case the Council has not identified noise at statutory nuisance levels.
24. I consider it possible if the Council had dealt with the planning condition as it should have done there may have been measures the Council could have taken to manage noise from the site as it would not have been bound by the statutory nuisance measure. I cannot speculate though about whether if the Council had discharged the planning condition Mr B would have experienced less noise from the site. That is because the evidence I have seen suggests noise levels in Mr B’s bedroom do not exceed the levels referred to in paragraph 5. Nevertheless, I consider Mr B has a justifiable sense of outrage the Council did not pursue a condition designed to protect the amenity of neighbouring residents. Mr B also has some uncertainty about whether he would have experienced less noise from the site if the Council had set the decibel levels when discharging the planning condition. Mr B has also had to go to time and trouble to pursue his complaint. To remedy that injustice I recommended the Council apologise to Mr B and pay him £500. I also recommended the Council liaise with the operator of the site to agree noise mitigation measures so it can discharge the planning condition. I further recommended the Council carry out monitoring at Mr B’s property following the agreement of the noise mitigation measures to ensure the levels agreed are met. If they are not I would expect the Council to liaise with the operator of the business to ensure compliance or consider whether further action is necessary. The Council has agreed to those recommendations.
25. Mr B says the Council misled him about whether noise from the site was something the Council could take action on. Mr B says he went to the expense of commissioning his own report into noise from the site as the Council told him it could not take action on noise from a commercial property. Mr B says this means he spent £5,000 he would not have had to spend as it is now clear the information he received was not correct. As there is no recording of that telephone call though I cannot reach a safe conclusion about what information the Council gave Mr B. I therefore have to rely on the documentary evidence. That does not refer to the Council telling Mr B it could not take action on noise from commercial properties. The documentary evidence also shows officers told Mr B it did not consider the noise a statutory nuisance during the July 2018 visit. So, I could not say fault by the Council led to Mr B having to go to the expense of commissioning his own report.
26. I am, however, concerned about how the Council handled the environmental health investigation into Mr B’s concerns. The evidence I have seen satisfies me the Council agreed to carry out further monitoring during the summer to assess the noise levels on the balcony. The Council accepts it failed to do that. That is fault. The Council also delayed carrying out monitoring during the evening as it promised to do in February 2019. I have seen no evidence the Council carried out monitoring until November 2019. That delay is fault. Given the monitoring undertaken has not identified a statutory nuisance though I do not consider the outcome from an environmental health point of view would have been different but for the fault I have identified. I have, in any case, made clear in my view the method to control noise from the site was through the planning condition, on which I have found the Council at fault. For that reason I do not recommend any further remedy besides the remedy recommended in paragraph 24.

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Agreed action

27. Within one month of my decision the Council should:
• apologise to Mr B for the failure to pursue the discharge of condition 36 and for the failure to carry out further noise monitoring; and
• pay Mr B £500 to reflect his distress, uncertainty and the time and trouble he had to go to.
28. Within three months of my decision the Council should:
• agree, with the operator of the business, the noise mitigation measures needed to discharge condition 36 on the planning permission. Those measures should include a clear statement on the decibel level the operator of the business is required to achieve; and
• following the discharge of the condition the Council should carry out monitoring over a three month period to establish whether the operator of the business has complied with the decibel levels set and should consider any further action required if the decibel levels are exceeded.

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Final decision

29. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman