Summary: The Ombudsman found no fault by the Council on Mrs T’s complaint about how it responded to her reports about the use of a site breaching planning consent which also caused a statutory nuisance. It gave the owner and his agent time to provide the required information. It decided it could keep more control over the land through a planning application than enforcement action. This was because the owner could use the land for this purpose for a certain number of days a year anyway, which had not been exceeded.

The complaint

1. Mrs T complains since July 2020, the Council:
1. Delayed acting on her report and taking enforcement action against the owner of a nearby site who allows motocross racing on it without planning consent; and
2. Failed to act against the site owner for noise nuisance despite her reports of disturbance.
2. As a result, she has suffered disturbed sleep, wakes throughout the night with worry, cannot invite friends and family to her home, and her health suffered because the site is used 5 days a week and on Sundays.

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The Ombudsman’s role and powers

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)
4. 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)

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National Planning Policy Framework (2021)

5. Effective enforcement is important to maintain 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. It should consider publishing a local enforcement plan to manage enforcement proactively in a way that is appropriate to its area. This should set out how it will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development, and act where appropriate. (paragraph 59)

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Environmental Protection Act 1990

6. It is the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisance and where a person makes a complaint of a statutory nuisance, to take such steps as are reasonably practicable to investigate the complaint. (section 79)
7. A statutory nuisance includes noise emitted from premises which is prejudicial to health or a nuisance. (section 79 (1) (g))
8. Where it is satisfied a statutory nuisance exists, or is likely to occur or recur, in its area, the local authority shall serve an Abatement Notice requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence and shall state the time or times within which the notice is to be complied with. (section 80(1))

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Town and Country Planning Act 1990

9. A local planning authority can issue an enforcement notice if it considers it expedient to do so. (section 172 (1))
10. A breach of planning consent may only relate to either: carrying out development without the required planning permission or; failing to comply with any condition or limitation subject to which planning consent was granted. (section 171A(1))

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How I considered this complaint

11. I considered all the information provided by Mrs T, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I did not send a complete copy as some of the information needs to remain confidential as it is about third parties. This means I cannot disclose this information or refer to it directly. I sent a copy of my draft decision to Mrs T and the Council.

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What I found

12. Mrs T’s house is opposite a field and behind it is another field (the site). Since July 2020, the site’s owner has allowed up to 20-30 motorbikes to scramble round it. Mrs T and her husband are regularly disturbed by the noise and dust created. When she reported this to the Council, she complains it took 8 weeks for it to refer the case to the environmental health team as it claimed it was only a planning issue. Mrs T is unhappy with the way the Council dealt with her reports and with its failure to respond to her calls or correspondence about the site.
13. I now examine what happened with her reports:

Enforcement: planning

14. Mrs T is unhappy with the time taken for the site owner to submit a planning application. During the time it took him to do so, the Council decided to take no enforcement action against him while the unauthorised use of the land continued.
15. The following are key events:

2020

• August: Early in the month, it first received a report about the use of the site creating noise and dust from a third party. It received a report from another third party the following day. Shortly after, it received a report from Mrs T.

The Council explained an officer did a land registry search the same day a case was opened to find the site owner. The officer wrote to the owner 3 days later asking him to remove the works and reinstate the land or send a retrospective planning application within 28 days. The Council explained at this point, it did not consider the breach caused irreversible harm or was bad enough to justify an enforcement notice. Informal contact with environmental health considered the breach was not continuous, but sporadic, and some low-key use might have received planning consent anyway.

The Council emailed Mrs T, telling her a breach had taken place and it had asked the owner to stop the works or make a planning application.

• September: The owner asked for more time to submit an application. An officer emailed the owner giving him an extra 6-8 weeks.

The Council emailed Mrs T asking her about the current situation. It copied her in to an email to another resident which explained the owner intended to make a planning application, so the Council was allowing him time to do so.

• October: The Council received an email from a resident confirming there had been no activity on site because of poor weather. The Council acknowledged log sheets the resident had kept and returned. It also explained it had given the owner 8 weeks to make the application.
• November: The owner sent an email asking for planning consent but, was told he needed to send a completed application form within 2 weeks. The Council chased the site owner towards the end of the month as it had still not received it.

The Council replied to another resident, with Mrs T copied in, stating it was chasing the planning application and directed them to an environmental health officer for noise reports.

• December: The Council chased the owner about his application. It sent an update to a resident with Mrs T copied in. It told her an application was due very soon.

2021

• January: The Council received an online application but, it was invalid and not registered. When a council receives a planning application, it checks whether it is complete. This includes not only the information requested on the application form but, mandatory national information requirements and those set out in the council’s own local validation checklist. Only when valid is it placed on the planning register and given an application reference. An update was sent to a local councillor who had been in touch on behalf of residents.

I have seen a copy of a letter the Council sent the applicant saying the application was not valid and why. It warned it would return the application if the information needed was not provided within 14 days.

• February: Mrs T chased the Council about progress as the owner still used the site. An officer updated another councillor saying it received an application which is waiting validation.
• March: The Council sent Mrs T an update in response to her complaint saying the application was still with its validation team who register applications. There is missing information it needs from the site owner. The owner’s agent confirmed acting on the owner’s behalf, said they were in the process of getting a report, and were in discussions about a landscape plan. The agent had problems contacting the owners which caused delay.

An email to another resident said the owners had sent a planning application but there was missing information.

• April: The Council sent a letter to the agent confirming certain documents and information were still needed. The letter warned if the information was not provided within 14 days, it would return the application.
• May: Officers emailed two councillors giving a summary of events. An officer wrote to another resident confirming the planning application received is invalid. The Council wrote to the agent about the application being invalid, warning it would return it if the information needed was not provided.
• June: The Council sent a copy of a letter to the agent saying information was still needed to make the application valid. In an internal email, an officer explained why it was not appropriate to issue a temporary stop notice, which lasts 28 days, or a stop notice. The intensification of the site use led to the issuing of the abatement notice which should resolve the noise nuisance problem. The officer would not discuss whether it was time to issue an enforcement notice.

The owner finally submitted his application. Mrs T sent representations about why it should reject it. The Council sent an update to the many complainants who had by now been in touch about the application.

• August: The Council responded to a query from Mrs T about the current position.
• September: The Council refused the application and would now serve the site owner with an enforcement notice. I have seen the enforcement officer’s report which recommends serving it and taking prosecution action.

16. The Council provided evidence of it corresponding with his agent who experienced problems contacting the owners. This was why it decided to pursue the owner to provide a valid planning application. In addition, it explained it is not always appropriate to take enforcement action for a breach of planning consent where a planning application remains invalid.
17. The Council pointed out the owner could have used the site this way for a maximum of 28 days a year without needing planning consent anyway. Officers decided it appropriate to wait for a valid application. Had the owners decided simply not to use the site for more than 28 days a year, the Council would have lost the ability to exercise some control over the land for that period. By considering a planning application, it could exercise control over it by imposing conditions on any consent granted. If it refused consent, it could still take enforcement action. It would also need to show it considered enforcement in a proportionate way in line with national guidance. It decided the best way to deal with the site was by way of a noise abatement notice instead.

Analysis

18. I found no fault on this complaint for the following reasons:
1. The Council responded properly to the report about a possible breach of planning consent. Officers discovered who owned the land and promptly wrote to the owner about the need to stop activity or apply for planning consent.
2. It was not fault for the Council to informally try to get the owner to make a planning application.
3. The owner initially tried to apply for consent by way of an email and then by way of an application. The evidence shows he made an invalid application and needed to provide missing information. The Council sent me copies of letters it sent the owner and his agent about what he needed to do to make the application valid up until the point it received a valid planning application.
4. The evidence shows the agent was not instructed until at least March 2021. The agent explained delays were due to problems with contacting the owner. The agent also told the Council what actions were being taken to provide the information it needed to make the application valid.
5. During this period, there was no fault with the Council’s decision not to take enforcement action. This is because the agent was making genuine attempts to provide the required information. In addition, the Council explained its reasoning for not taking action. It explained it did not warrant immediate enforcement action because: the use of the site was sporadic; the owner could use the land this way for up to 28 days a year anyway without needing planning consent; only after the site had been used for more than this could it take enforcement action; it had not been used more than this that year and was little used over the winter months, for example.
6. While the Council has no enforcement plan as recommended by the National Planning Policy Framework, it has confirmed it is aware of the need to have an up-to-date one and achieving this is now in its current work programme.

Enforcement: noise

19. Mrs T is unhappy it took 4 months for the Council’s environmental health team (the team) to send her logs to complete to record the noise nuisance experienced. She says they were rejected because they were not handwritten but typed. She had not been told of this before. I have seen a copy of these logs which are typed and date back to July 2020, although are dated January 2021.
20. She also complains noise monitoring equipment was not installed until March 2021 and the results of which were invalidated because she was not told it had to remain in the position officers left it.
21. The Council confirmed the following:

2020

• August: The team received an email Mrs T sent about noise. It sent a warning letter to the owner.
• September: Officers visited the site and found the noise was intermittent and unlikely to amount to a statutory nuisance.
• October: Two site visits found no activity.
• November: During an unrelated visit, the site owner claimed the site was used every other Sunday and Wednesday evenings.
• December: The team emailed Mrs T advising of officer visits and finding no evidence of a statutory nuisance. The Council says it asked her to complete logs at this point because officers visited the site on several occasions and found no activity.

2021

• January: The team received completed logs from Mrs T but, they were backdated showing a problem between July and September 2020. The logs showed after September, 2 events a month lasting 1-4 hours each took place. Officers decided this was not enough to show a statutory nuisance but, this could change as the weather improved.
• February: A site visit found no activity.
• March: No activity found during a site visit. Noise monitoring equipment was installed but, this was unplugged and moved so invalidating any results. A site visit found some activity, but the noise was often masked by passing cars.
• April: An officer spoke to Mrs T on the telephone about the need to have good evidence. Officers also wrote to the owner about monitoring carried out and gave advice.
• May: Officers found 7 bikes on site. During another visit, the owner and event organiser were given further advice. The team served a noise abatement notice on the owner. This required the owner to stop causing a noise nuisance within 48 hours. It did not require him to stop all motorbike activity. The owner denied an intensification of use of the site.
• June/July: Officers liaised with the police about reports of antisocial behaviour for example, although I have not seen evidence showing this. A site visit found no activity.
• July: Officers found motocross was taking place. An officer spoke with the organiser of the event who was advised to speak to an acoustic consultant about additional measures to reduce noise from the site. The team sent the owner another letter about noise nuisance.
• September: No activity found during a site visit. An officer met Mrs T. Another site visit found noise audible in the area.

22. The Council confirmed the initial site visits and monitoring failed to show evidence of a statutory nuisance. Evidence gathered between March to May 2021 found increasing use of the site and evidence of nuisance. The results from the noise monitoring equipment installed at different properties was inconclusive.

Analysis

23. I make the following findings on this complaint:
1. I found no fault on Mrs T’s complaint about delay by the Council referring the noise reports to the team. The team received a copy of Mrs T’s email and contacted the owner about it. This was done in August 2020.
2. Between August and December 2020, I am satisfied officers from the team visited the site and found no evidence of a statutory nuisance. I found no fault on this complaint.
3. Nor did I find fault on her complaint about the Council failing to send her logs to complete. The evidence shows the Council copied her in to an email it sent another resident who had received logs and who had completed and returned them. While I saw no evidence of it asking Mrs T directly about logs before December, on balance, I am satisfied she was aware of completing logs and could have asked the Council about them earlier had she wished to submit them. In addition, the evidence from the site visits shows officers had not witnessed much use of the site and nothing to suggest a statutory nuisance at this point.
4. When Mrs T completed and returned diary logs, she backdated them to July 2020. Evidentially, her earlier reports had little weight because they happened 5 months earlier and so did not reflect the current situation. Information on the first sheet of the diary logs suggests logs are completed and returned at least every 3 weeks. I saw nothing to support Mrs T’s claim they were rejected because they were typed, rather than handwritten.
5. The Council provided evidence of a noise monitoring equipment template log Mrs T was asked to complete. In the notes, this said, ‘Please do not move the case or the microphone’. I am satisfied, therefore, the Council made Mrs T aware of the need not to move the equipment once installed.
6. By May, it became clear the owner was using the site more as the weather improved leading to the team deciding there was evidence of a statutory nuisance justifying the service of an abatement notice. I found no fault on this complaint.

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Final decision

24. The Ombudsman found no fault on Mrs T’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman