Summary: Mrs X has made a complaint about the Council for allegedly failing to take planning enforcement action against a neighbouring food producer and distributor. She also complains the Council has not taken action against the business on account of noise and dust pollution in the area. The Ombudsman has not identified fault with respect to the actions taken by the Council.

The complaint

1. The complainant, who I refer to as Mrs X, is making a complaint about the Council for failing to act against a neighbouring food manufacturing and distribution centre (“the Centre). She says the Centre is causing excessive noise and dust pollution at her property. Moreover, Mrs X says the Centre is operating at all hours of the day, every day. She explains this in breach of planning conditions since there are restrictions on when deliveries can take place.
2. Mrs X says the noise and dust from the Centre is resulting in her suffering sleep deprivation and ill health. As a desired outcome, she wants the Council to investigate the issue by visiting her area and take action against the Centre to safeguard her use and enjoyment of her property.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. If we are satisfied with a council’s actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended).
5. 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).

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How I considered this complaint

6. I have reviewed Mrs X’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation and Government guidance. Both Mrs X and the Council received an opportunity to comment on a draft of my decision before I reached a final view.

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What I found

Background and legislative framework

7. A breach of planning control is defined in Section 171A of the Town and Country Planning Act 1990 (“the TCPA 1990”), as follows:

1. the carrying out of development without planning permission; or;
2. failing to comply with any condition or limitation subject to which planning permission has been granted.

8. Where there is a breach of planning control, the authority may serve an Enforcement Notice if it is expedient to do so under Section 172 of the TCPA 1990. It is for the planning authority to decide whether it is expedient to act. Importantly, enforcement action is discretionary. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2018) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’.
9. A Planning Contravention Notice enables the local authority to require detailed information about suspected breaches of planning control. A Planning Enforcement Notice is a legal document requiring someone to carry out certain steps (to resolve an established breach of planning control) within a timeframe.
10. In March 2020, the Government issued a Written Ministerial Statement (WMS) relaxing delivery restriction to supermarkets, food retailers and distribution centres in response to coronavirus. The purpose of this WMS which came into effect immediately, is to make clear that as a matter of urgency local planning authorities should take a positive approach to their engagement with food retailers and distributors, as well as the freight industry, to ensure planning controls are not a barrier to food delivery over the period of disruption caused by the coronavirus pandemic. The statement adds that given the current situation local planning authorities should not seek to undertake planning enforcement action which would result in unnecessarily restricting deliveries of food and other essential deliveries during this period, having regard to their legal obligations.
11. It adds that the Government recognises that the increased frequency of deliveries, particularly at night, could have a temporary impact on local residents. However, this needs to be balanced by the significant public interest in ensuring local residents have continued access to food, sanitary and other essential goods in their local shops. This WMS expired on 31 March 2021.
12. A statutory nuisance is defined by the Environmental Protection Act 1990 (“the EPA 1990”) and can include noise disturbances and pollution. For such interferences to be a statutory nuisance, it must either unreasonably and substantially interfere with the use or enjoyment of a home or other premise; injure health or be likely to injure health.
13. Councils have a legal duty to investigate nuisance complaints. Where they are satisfied a statutory nuisance exists, they are required to serve an abatement notice, that is, an instruction to cease, or minimise, the disturbance. Whether a statutory nuisance exists is for a professionally qualified Environmental Health Officer to decide following a period of investigation.
14. Under Section 82 of the EPA 1990, a member of the public can also ask a magistrates’ court to decide if a statutory nuisance exists.

What happened

15. In May 2018, Mrs X complained to the Council about the Centre operating vehicles late at night. She said this was a breach of planning conditions and so the Council appointed a planning enforcement officer to investigate the concerns.
16. In March 2019, the Centre applied for planning permission to the Council. The application was to vary the Centre’s operating hours to allow the movement, loading and unloading of vehicles to occur 24 hours a day, 7 days a week.
17. In July 2019, the Council wrote to Mrs X to inform that complaints as regards to an enforcement of planning conditions would not be actioned until the planning application had been determined. However, a planning enforcement officer of the Council had taken noise recordings during this period and passed them to an environmental protection officer for further assessment.
18. In August 2019, the Council refused the planning application. Further, it began assessing whether the noise and dust from the Centre could fall within the scope of a statutory nuisance as defined in the EPA 1990.
19. In November 2019, the Council decided to arrange out of hours site visits at the Centre, install noise monitoring equipment in the vicinity and conduct a noise assessment. It also said it served a Planning Contravention Notice on the Centre. The Council said one site visit was carried out during this period and it did not witness any vehicles being operating outside the permitted hours.
20. In February 2020, the Council held a meeting with staff at the Centre to give notice of ongoing complaints by residents in the area. They denied noise was emanating from the Centre, though agreed to be more considerate of residents living in the area when operating during agreed hours.
21. In March 2020, Mrs X complained to the Council about excessive noise coming from the Centre. She said this was due to bobcats, forklift trucks and milling machines, which were also running late into the evening. Further, Mrs X said the Centre was responsible for large amounts of dust gathering at her property. From a planning enforcement perspective, the Council decided not to take enforcement action in light of advice from central Government (see paragraphs 10 to 11). That said, it did refer complaints concerning noise to its environmental protection team.
22. In June 2020, the Council undertook an initial site visit. It confirmed that noise was audible in the vicinity of Mrs X’s property. A few days later, the Council returned to the site, though noted the noise was less audible than the time of the initial visit. On this occasion, Council officers installed noise monitoring equipment at three different areas in close proximity to Mrs X’s property. The monitoring captured evidence of noise, as well as a large amount of dust near the Centre. Later in the month, a further site visit was undertaken and noise was noted to be more audible than the previous two occasions.
23. In July 2020, a further site visit was undertaken by the Council. It noted that there has been an increase in production in light of the Covid-19 pandemic. Further, it that sound was identified, though this dissipated when approaching the rear of the Centre which was closed to Mrs X’s property.
24. In October 2020, the Council wrote to Mrs X to give its conclusion on the nuisance investigation. It confirmed that it had not determined a statutory nuisance within the meaning of the EPA 1990. In reaching this decision, the Council said it had regard to witness reports, numerous site visits and evidence collected by means of the noise monitoring equipment in the area.

My findings

a) Planning enforcement

25. In cases regarding a suspected breach of planning condition, enforcement action by the Council is discretionary. However, it should give full consideration to the range of enforcement methods at its disposal in order to protect local amenity. This includes conducting enquiries and, in circumstances where a breach has been established, issuing an enforcement notice to remedy the breach. A failure to consider the options would be indicative of fault. Importantly, I cannot by law question the merits of the Council’s decisions in the absence of fault.

26. Concerns about a suspected breach of planning condition were first notified to the Council in May 2018. This led the Council to appoint an enforcement officer to investigate the concerns. In March 2019 however, the Centre applied for planning permission to vary the Centre’s operating hours. If granted, the Centre would be permitted to allow the movement, loading and unloading of vehicles to occur 24 hours a day, 7 days a week. As the alleged breach of planning condition concerned the Centre operating vehicles out of hours, the Council decided not to take enforcement action pending the planning decision. However, its enforcement officer did undertake a site visit and made audible recordings of noise in the area for the purposes of collecting evidence.
27. In my view, the Council took receipt of Mrs X’s complaint and did take initial steps to identify the suspected breach. However, it paused enforcement action pending the outcome of the planning application. This is because the Council did not want to take enforcement action only for the alleged breach to be later lawfully permitted. I do consider this a fair and reasonable action for the Council to take because had permission been granted, any enforcement action would be unlikely to have served any material purpose.
28. In August 2019, the Council refused the planning application and complaints continued to be made about the operating hours of vehicles at the Centre. I have seen evidence that in response, the Council undertook site visits, installed noise monitoring equipment and issued a Planning Contravention Notice. A number of months later, it held a meeting with senior staff at the Centre who agreed to be more considerate of local residents when operating during their agreed hours. This demonstrates, at the time, that the Council was taking enforcement action. However, Mrs X continued to make complaints concerning a breach of planning condition on account of vehicles being used out of permitted hours which, in her view, was harming residential amenity.
29. Since March 2020, central Government has advised local authorities not take enforcement action against businesses active in the provision of food manufacturing and distribution (see paragraphs 10 to 11). The advice is not set to expire util 31 September 2021 and the Council has informed Mrs X of its decision not to take action in light of the Government advice. That said, the Council did remind the Centre to keep noise to a minimum and information was passed to its environmental protection team for the purposes of identifying a nuisance.
30. The Council has had regard to the need to protect local amenity in the area, as well as the enforcement options it has available. Moreover, it has undertaken a range of activities to investigate the alleged breach and made enquiries of staff at the Centre to mitigate harm to local residents. At present, the Council is following central Government advice by not taking enforcement action. I have not identified any fault by the Council with respect to responding to the alleged breach of planning condition. I acknowledge Mrs X feels more should be done, but I cannot by law question the merits of the Council’s decision in the absence of fault.

b) Nuisance investigation

31. Separate to the planning matter, I recognise Mrs X feels principally aggrieved by the levels of noise and dust she says is coming from the Centre. She says these matters are interfering with her right to quiet use and enjoyment at her property. By law, the Council must investigate any complaint concerning the existence of a statutory nuisance. Further, should a nuisance be established, the Council has a duty to take steps to abate it.
32. On review of the events, I am satisfied the Council has taken meaningful steps to identify the existence of a statutory nuisance. This is evidenced by it taking statements of local residents and installing noise monitoring equipment in the area and close to Mrs X's property. Further, the Council has undertaken a number of site visits to the Centre and its neighbouring areas. However, the Council concluded the noise and dust pollution present did not constitute a statutory nuisance within the meaning of the EPA 1990. I recognise Mrs X disagrees with that conclusion, but I cannot by law question the merits of the Council’s decision in the absence of fault.

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Final decision

33. The Council was not at fault for failing to take action against the Centre with respect to planning enforcement or a statutory nuisance. This is because the Council has properly considered enforcement action and made its decisions in accordance with current Government advice. Further, the Council has taken meaningful steps to identify the existence of a statutory nuisance in Mrs X’s area. I have therefore not identified any fault by the Council and I cannot question the merit of the Council’s decision in the absence of fault.

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Investigator's decision on behalf of the Ombudsman