Summary: The Council took too long to properly investigate Mr X’s reports of noise nuisance, fly tipping and planning breaches. It did not always properly engage with Mr X about evidence of fly tipping.

The complaint

1. Mr X complained about the way the Council investigated his reports of noise nuisance, fly tipping and planning breaches at a business premises near his house.
2. He said the noise and waste from the business caused him distress and negatively affected his amenity and enjoyment of his home.

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What I have and have not investigated

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).
4. Mr X first complained to the Council about problems with noise, antisocial hours, and fly tipping at the site in 2016. Mr X complained to the Ombudsman in May 2021 and so we would usually take the start point for investigation as May 2020. I have considered whether I should investigate the Council’s actions before this date.
5. Following Mr X’s reports to the Council in 2016, it made him aware of the various planning permissions and what these meant in terms of use of the site, and permitted operating hours. It also directed him to its Environmental Protection Service (EP Service) so that it might consider its powers to stop noise nuisance, and it directed him to the Council’s corporate complaints process. Mr X understood that the Council did not consider there was a planning breach and had not taken action on fly tipping or noise. There is no apparent reason why Mr X could not complain to the Council and then to the Ombudsman at that stage. For this reason, I have not exercised discretion to investigate events that took place before May 2020.

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The Ombudsman’s role and powers

6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. If we are satisfied with an organisation’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

8. I considered the information provided by Mr X. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I considered the comments received before issuing my final decision.

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What I found

The law and guidance

Noise nuisance

9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise can be a statutory nuisance. To be considered a statutory nuisance, it must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or
• injure health or be likely to injure health.

10. There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The Council should consider the type, duration, intensity and location of a nuisance when deciding if it is a statutory nuisance.

Waste and fly tipping

11. Section 33 of the Environmental Protection Act 1990 sets out the law around fly-tipping, or ‘depositing controlled waste’. A person who breaches section 33 is committing an offence and may be subject to a fine or a prison sentence.

• Councils have powers to take enforcement action against people they suspect of fly-tipping. As these are powers, rather than duties, it is for councils to decide what action, if any, to take.

Planning enforcement

12. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
13. Generally, a change of use from one use to another will need planning permission.
14. A planning contravention notice (PCN) allows the council to request information, when it appears that a breach of planning control may have occurred and they want to find out more information before deciding what, if any, action to take. It may also be used to establish ownership prior to taking enforcement action. Failure to complete or return a notice within 21 days is an offence, as is providing false or misleading information.
15. If the council decides there is a breach of planning control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
16. Enforcement action is discretionary, and councils should act proportionately in responding to suspected breaches of planning control. (Ministry of Housing, Communities & Local Government, 2019, National Planning Policy Framework) Councils may decide to take informal action, formal action, or no action at all.

What happened

17. What follows is a brief chronology of key information and events. It does not contain all the information I reviewed during my investigation.
18. Mr X lives in a residential area, but close to a railway bridge and some commercial sites. In 2016, Mr X started to report to the Council that he was disturbed by noise from the commercial sites, sometimes at antisocial hours. The Council visited the sites to check their use. Following its investigation, the Council explained that the sites were covered by different planning permissions. The majority of the site does not have any permitted hours. It asked Mr X to keep a log of the noise. It told him to contact its EP Service so that it could consider whether there was a noise nuisance.
19. Mr X complained again to the Council in August 2020 and I have investigated the Council’s actions from this point. Mr X said there were noisy operations, including metallic grinding and screeching. As well as quantities of tyres and car parts dumped in the street. The Council’s Planning Team visited the site in September and its inspection found that vehicles were stored there but no work was taking place. This meant that the use appeared to be within that allowed by the planning permission. The Council referred Mr X to its EP Service again to consider whether this was a noise nuisance.
20. Mr X continued to report more fly tipping of vehicle parts and tyres on the public highway. He complained to both the Council’s EP Service and the Planning Team. In November 2020, Mr X complained that the Council had not responded to him or properly investigated his reports of noise and fly tipping.
21. The Council told Mr X that it was unlikely that there was a planning breach, but that it would look at the fly tipping and noise. Its EP Service visited the site in November 2020. If found no noise but noted that this was during COVID-19 restrictions and so it would expect there to be less activity on site. The EP Service asked Mr X to complete diary sheets so that it has a better understanding of what was happening and when, and how it might investigate the problem. It however, advised that enforcement action is less likely on commercial sites. It also said it would investigate the fly tipping.
22. Through February and March 2021, Mr X continued to report loud noise from the sites, sometimes at antisocial times. He explained that the use of one of the sites had intensified with large deliveries of cars, noise and more fly tipping. Mr X described piles of car tyres, 12 high dumped on the pavement. He told the Council he had the number plates of vehicles that had delivered cars and the tyres, and he had seen them do it. Mr X also mentioned that later that day, these people appeared to be tidying up the tyres from the highway.
23. He twice called the Council’s dedicated line for reporting incidents outside of office hours. One time the Council told Mr X it would not visit because the noise had stopped, and the second time it took details and said it would refer the matter to the relevant officer.
24. Mr X continued to report the problems and in April he complained to the mayor that the Council had not dealt with the noise issues, the site operating late into the evening and not within its planning permission, nor with the fly tipping he had reported.
25. The Council responded in June. It told Mr X its investigations into the alleged planning breach and noise nuisance had not found evidence of a statutory nuisance and it could not take enforcement action. The Council told Mr X it would install noise monitoring equipment in his house for seven days to investigate the matter further.
26. Mr X was not satisfied with the response and asked for his complaint to be considered at stage two of the Council’s complaint process. The Council responded in August. It told Mr X:

• It had an open planning compliance investigation, but it had not established a breach in the alleged use. It intended to issue a Planning Contravention Notice (PCN) on the premises to gather evidence.
• The EP Service had an open investigation but had so far been unable to establish a statutory noise nuisance. It would install the noise monitoring equipment at Mr X’s property.

27. The noise monitoring equipment was installed for seven days in August. Mr X made 30 recordings and kept noise diary sheets. The officers assessed the recordings and information but did not find a statutory noise nuisance. The Council closed the case.
28. Mr X was not happy with the outcome. He told the Council that during the seven days the equipment was at his house the sites had been quieter than normal. He asked for the Council to install the equipment again, but the Council refused.
29. It explained that it had installed the equipment based on his reports and these suggested that installing the equipment for seven days would be sufficient to capture the noise. Further, there had been around 30 recordings of noise during that time and so this is a good representation of the noise Mr X was experiencing.
30. In October 2021, Mr X complained to the Ombudsman because he remained dissatisfied with the Council’s complaint responses and investigations. Mr X (in his complaint to the mayor, the Council and the Ombudsman) has complained about systemic fault, in that Council officers sometimes do not have access to his earlier complaints and evidence he has sent, or to information shared with other departments of the Council.

Analysis

Noise investigation

31. The Council delayed in its investigation of the noise problems. Mr X had reported the problems in August 2020 and the Council’s planning service had started to investigate. But the Council did not start to investigate the noise problems until December 2020. At that point it visited and did not find any evidence of noise. However, there was little progress between January 2021, when it said it would investigate further and July 2021 when it agreed to install the noise monitoring equipment.
32. The Council has explained that it had staff shortages at that time and increased workload. Also the Council’s ability to investigate was limited by COVID-19 restrictions which made it difficult to enter houses to collect evidence. However, the Council’s poor communication with Mr X, and that there is no evidence that it considered how it could respond to Mr X’s reports during these restrictions was fault. It is likely to have caused Mr X distress and frustration.
33. The Council installed the noise monitoring equipment in August 2021. Mr X said that it was an unusually quiet period and I have considered its decision not to extend its monitoring.
34. As part of my investigation I interviewed the Council’s Environmental Protection Officers. The officers explained that the noise recordings had been analysed by a qualified and experienced acoustician. He found no evidence of statutory nuisance. The officers used their judgement to decide that no further recording period was necessary. They said that they had considered whether to reinstall the equipment and would do had there been very few recordings. As nearly 30 recordings had been made, they considered this sufficient to indicate the problem and to assess whether there was a statutory nuisance. The Council explained that it did not have the necessary evidence to take enforcement action.
35. The Council made the decision not to take enforcement action, based on its observations. It used appropriately qualified officers to analyse the evidence it had and to decide that this was sufficient to reach a conclusion. There was no fault in the Council’s decision making and I have no basis to criticise its conclusions. This also means that even had it acted without delay in 2021, it is unlikely the Council would have taken further action.

Fly tipping

36. Mr X has shown me his photographs of some of the fly tipping in the street immediately outside the sites he has complained about. These show piles of car parts and tyres left on the public highway. Mr X reported fly tipping in August 2020 and continued throughout 2021. I cannot see that the Council always responded to his reports, or visited the site during this time. The Council did not respond to Mr X in March 2021 when he reported that he had seen the people putting tyres on the highway and had taken their details. The lack of action through 2021 was fault by the Council.
37. It seems to me that the Council only started regular visits in November 2021 and it was also at that time that it wrote to the occupiers to warn them of the consequences. Since then it has conducted regular visits, and is considering funding CCTV cameras.
38. I have considered the Council’s decision that it did not have sufficient evidence to take enforcement action with regard to fly tipping. It needs good and robust evidence as any enforcement action could be challenged in court. The onus is on the Council to prove who has deposited the waste. It cannot take action without this.
39. Mr X was clear that he had witnessed the tipping in March 2021 and gave vehicle details then of those responsible. His various emails to the Council in 2020 and 2021, also say that he had seen the persons leaving cars or car parts on the pavement and road, working on these and then either leaving the parts or taking them back into the yards to store.
40. At various points and notably in September 2021, Mr X and the Council corresponded about what evidence he could offer. Mr X pointed out that he had submitted contemporaneous diary sheets, photographs and emails, and at least twice offered to make a witness statement. The Council asked for his telephone number, which he says he had already provided to several officers. The Council asked Mr X again for evidence in April 2022, and it says he did not reply.
41. The Council’s exchanges with Mr X about evidence of fly tipping are confusing. I cannot see that the Council tried to take a witness statement from Mr X, or explain to him why this and the other evidence he submitted was not sufficient to take action. This was fault by the Council.
42. Fly tipping is difficult to prove and I cannot say whether a witness statement from Mr X or the other evidence he had provided would have been sufficient for it to successfully take enforcement action. I have also taken into account that the Council did take some action. It spoke to the site occupiers, sent warning letters and is considering CCTV. However, the Council’s shortcomings mean that it is likely it missed opportunities to properly consider what action it could take. This caused Mr X distress, frustration and uncertainty that had the Council acted properly then it would have been able to stop the fly tipping.

Planning Control

43. Mr X complained the business premises was carrying out activities that were not in line with its permitted use. The permitted use at the premises is light industrial and storage. Mr X reported the premises was being used as a car breakers and scrap metal yard.
44. In an earlier investigation, the Ombudsman found fault with the way the Council investigated the alleged planning breach. It served two PCNs on the premises asking for further information about operations on site. It said this was to gather further evidence for its investigation. Neither PCN was returned but the Council failed to follow this up or take any action.
45. It visited the site in 2020 but the business was locked up and not in operation. The case notes said a further site visit would be helpful but there is no record this took place. The Council emailed the business owner but did not follow up when they failed to respond to the Council’s enquiries or provide any information that was requested.
46. The Council failed to carry out an adequate investigation of the alleged planning control breach at that stage.
47. The Council has since completed its planning investigation and has confirmed to Mr X that there is no breach of planning control. It is open to Mr X to make a further complaint to the Council and then to the Ombudsman if he thinks there is fault in how the Council has reached its conclusions.

Sharing information and coordinating action

48. It was clear from the 2020 that the activities on site required investigation by EP services and planning services. There is evidence that the Council liaised between departments. The Council told Mr X on more than one occasion, that it could not access information sent to other officers, however the Council has explained this is because the different services were investigating separate matters under separate legislative schemes. As such, the level of information sharing was sufficient.

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Agreed action

49. The Council has already paid Mr X £150 in accordance with the Ombudsman’s earlier investigation. Within one month of my final decision the Council will:
• Apologise to Mr X.
• Pay Mr X an additional £200 in recognition of his frustration, distress, uncertainty, and time and trouble.
• Share this decision with the relevant staff.
50. The Council will provide us with evidence it has complied with the above actions.

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Final decision

51. I have competed my investigation. There was fault by the Council causing injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman