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North Hertfordshire District Council (21 004 107)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 28 Feb 2022

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to take action to address noise nuisance caused by two local businesses. The Council was at fault. It delayed taking enforcement action and failed to keep Mr X updated. The Council has agreed to apologise to Mr X and make a payment to acknowledge the time and trouble and frustration he has been put to.

The complaint

  1. Mr X complains the Council has failed to take action to address noise disturbance and breaches of planning conditions from two local businesses (business A and business B) close to his home. He says his well-being is affected and his sleep disturbed. He wants the Council to take action to abate the noise and enforce the planning condition relating to the opening hours.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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

  1. I have considered the information supplied by Mr X and have discussed the complaint with him on the telephone.
  2. I have considered the Council’s response to my enquiries and the relevant law and guidance. I have also spoken to an officer from planning and from environmental health about the complaint.
  3. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching my final decision.

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What I found

Relevant law and guidance

Planning enforcement

  1. Councils can take enforcement action if they find planning controls have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:
  2. “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 2021, paragraph 59)
  3. It is possible to seek formal confirmation from councils that an existing or proposed development or use of land is lawful and so needs no planning permission. If the Council accepts the evidence provided, it can issue a certificate of lawful use to the applicant. This may happen where the development was unlawful but the time limit for enforcement actions has passed.
  4. Councils have a range of options for formal planning enforcement action available to them, including:
    • Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
    • Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
    • Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
    • Breach of Condition Notices – to require compliance with the terms of planning conditions already determined necessary for approval of the development. There is no right of appeal against a breach of condition notice. Failure to comply is an offence which can be prosecuted
    • Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.
  5. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so it can formally consider the issues.

Environmental Health

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate complaints about potential ‘statutory nuisances’.
  2. Typical things which may be a statutory nuisance include noise from premises or vehicles, equipment or machinery in the street, smoke from premises and smells from industry, trade or business premises.
  3. For the issue to count as a statutory nuisance, it must:
    • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
    • injure health or be likely to injure health.
  4. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
  5. Once the evidence-gathering process is complete, the EHO will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The EHO will use their professional judgement to decide whether a statutory nuisance exists.
  6. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
  7. An abatement notice requires those responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
  8. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
  9. Councils can also take action to stop or restrict the nuisance by:
    • carrying out works and making the person given the notice pay for them (this can include seizure and confiscation of equipment)
    • applying to the High Court for an injunction (if they consider prosecution is not adequate).

The Council’s enforcement policy

  1. The Council’s enforcement policy sets out that ‘those people affected by an offence will be kept informed of any decision that makes a significant difference to the case in which they are involved’.

The Ombudsman’s guidance on good administrative practice

  1. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction, called “Principles of Good Administrative Practice”. We issued an addendum in response to the COVID-19 pandemic; “Good Administrative Practice during the response to Covid-19”. This emphasised the importance, where timescales would be extended, of giving timely advice to service users about this.

What happened

  1. This is a summary of the key events and does not reference every action that occurred

Environmental health

  1. Mr X lives near two takeaway businesses. In April 2020 Mr X and others complained to the Council about noise from the takeaways. The Council’s EHO issued Mr X with diary sheets to complete. The EHO carried out a site visit but, due to restrictions caused by the COVID-19 pandemic, did not visit the residents to assess if the noise was a statutory nuisance. In May 2020 the Council wrote to the businesses to advise it had received complaints alleging noise nuisance. Throughout April, May and June Mr X used a noise app on his phone to record the noise disturbance and submitted around 18 recordings to the Council.
  2. The Council carried out further site visits in May and June 2020, sent warning letters and spoke to the businesses. In June 2020 an EHO assessed the noise from a resident’s property. They recorded in the notes of the site visits they considered the noise from the extractor fans at both businesses was likely to be a statutory nuisance.
  3. The Council says between July and mid-August it took no action because of officer absences and staff shortages. Mr X requested an update and in late August an EHO updated Mr X and the other complainants that they were awaiting information from the businesses and apologised for the delay due to their absence.
  4. The EHO contacted Mr X in September 2020 to ask if he was still affected by the noise. Mr X confirmed he was and submitted three further noise recordings.
  5. In October 2020 two EHOs visited another resident who had also complained about the noise. They decided the biggest concern was noise from the external condenser unit at business A which operated 24 hours a day. The EHOs considered the noise was likely to be a statutory nuisance. They found the noise from the extractor fan at business B was less intrusive than at the earlier visit. An EHO emailed Mr X mid-November to advise they had not yet reviewed the notes of the visit by their colleagues but would do so and update him the following week. Mr X did not receive an update and continued to submit noise recordings to the Council.
  6. In December 2020 an EHO sent a notice to the businesses requiring them to provide information so it could work out where responsibility for the businesses lay. The EHO updated Mr X.
  7. In late January 2021 the Council served a noise abatement notice on business A relating to noise caused by the condenser unit, requiring the noise to be abated by mid-April 2021.
  8. In February 2021 the Council served an abatement notice on business B due to excessive noise caused by the extractor fan. Business B appealed the notice but later withdrew its appeal and agreed to carry out improvement works. It later replaced its extractor fan and the Council was satisfied there was no longer a statutory nuisance. The EHO updated Mr X that they were waiting for the outcome of a planning application made by business A before deciding what action to take regarding the extractor fan noise. The Council refused the planning application in early March 2021.
  9. In April 2021, Mr X complained to the Council about the lack of action taken regarding his noise complaint. He continued to submit noise recordings to the Council. The Council responded to Mr X later that month. It explained its ability to investigate the noise complaints over the last year was caused by the COVID-19 pandemic. However, work on the case had been ongoing. It explained EHOs had to both identify the specific cause of the nuisance and witness the noise. It apologised for the time taken although it felt there were justifiable reasons for this and it did not accept it had failed to investigate. It accepted there were times when Mr X was not kept updated and apologised for this. Mr X remained unhappy and asked to go to the next stage of the Council’s complaints procedure.
  10. Another EHO took over the case in April 2021. They visited Mr X and another resident with a colleague in late April 2021. They witnessed noise nuisance from the extractor fans of both businesses and witnessed that business A was operating outside hours permitted in a planning condition. In May 2021 the Council served an abatement notice on business A relating to the noise nuisance caused by its extractor fan. Other residents contacted the Council later that month to advise business A was continuing to operate outside permitted hours.
  11. The Council wrote to Mr X in late May 2021 at the next stage of its complaints’ procedure. It said the service was severely understaffed during the pandemic and a lot of its workload had been COVID related. In addition, the number of complaints it received had significantly increased. It apologised for the time taken and said communications with residents should have been better.
  12. In early July 2021 the EHO visited a local resident and found the noise of the fans from business A was unacceptably loud. The Council says due to a lack of staff it was unable to progress the matter further at this time
  13. In October 2021 the Council installed noise monitoring equipment at a resident’s house. Mr X also submitted a witness statement to the Council. The noise monitoring equipment recorded a constant tonal noise from business A’s fans.
  14. In December 2021 the EHO told Mr X that business A had applied to dissolve the limited company that ran business A. An officer has told me that because of the age of the notices and its lack of action, The Council decided to serve new notices on all relevant persons having an interest in the premises. The noise abatement notices covered both fans and require action to be completed by the end of February 2022.

Planning enforcement

  1. Both businesses have a planning condition attached to their planning permission which states they ‘shall only operate between the hours of 7.30am and 10.30pm, Mondays to Saturdays. Outside these hours the premises will be visibly closed by extinguishing all lights in the serving areas together with the clear display of a ‘closed’ sign in the shop window’. The reason given for the planning condition was to safeguard the amenities of nearby residents.
  2. In October 2020 the Council received a complaint the two businesses were operating outside the hours set out in planning conditions. The Council wrote to the owners of the businesses later that month to advise of the planning conditions and to request confirmation of the steps they would take to remedy a potential breach. In December, both businesses submitted planning applications to the Council to vary the conditions.
  3. In February 2021 the Council refused business B’s planning application to vary the hours of operation of the businesses. The Council checked the business’s website and carried out a site visit and was satisfied the premises was no longer trading outside of the hours set out in the planning condition.
  4. In early March 2021 the Council refused business A’s planning application to vary the condition. It wrote and advised the owner that out of hours trading should cease immediately. It visited the site in March and found it opening outside permitted hours and issued a breach of condition notice requiring compliance within 28 days.
  5. The Council visited business A in April 2021 and found it was still trading outside of permitted hours. It wrote to the business owner in June 2021 inviting them to an interview under caution but the owner did not attend.
  6. At further site visits during July and August 2021 it found business A was continuing to operate outside of the permitted hours. After further attempts the Council eventually interviewed the business owner in November 2021 regarding the breach of planning conditions.
  7. In January 2022 business A submitted an application to the Council for a certificate of law use to enable it to continue operating on Sundays and later in the evenings than that permitted by the planning condition. The Council says its enforcement activity is ongoing.

Findings

Environmental health

  1. The Council first received complaints from Mr X about noise from the businesses in March 2020. It did not serve abatement notices until January 2021 and May 2021 for business A and February 2021 for business B. There were some initial delays due to restrictions imposed by the COVID-19 pandemic and the Council needed to identify exactly what was causing the noise nuisance so that it could serve appropriate notices. However the Council took no action between mid-July and August 2020 and minimal action in September 2020. The Council has explained this was due to staff shortages and sickness. There were also delays in investigations between October 2020 and January 2021.
  2. I acknowledge the Council’s ability to deliver its services was affected by the COVID-19 pandemic. I also acknowledge its ability to deliver the service was affected by staff shortages and difficulties in recruiting new staff. However, the Council has a duty to investigate noise nuisance and to serve a notice when it finds a statutory nuisance. The delay in taking action and its failure to act when it identified a nuisance existed was fault.
  3. In its response to my enquiries the Council confirmed that additional staff have been recruited and trained. This should reduce the likelihood of similar delays in future.
  4. As a result of the abatement notice business B carried out improvement works, and the Council is satisfied its fan is no longer causing a statutory noise nuisance. However, the abatement notices served on business A gave it until April 2021 to stop the noise from the condenser unit and until June 2021 to stop the noise from the extractor fan. Business A failed to comply with these requirements and the Council has delayed taking further action. This was fault.
  5. The Council, in its complaint responses accepted it did not always keep Mr X updated when it had agreed to do so, and it did not keep Mr X or other residents updated with the issues and developments which affected the complaint. This was not consistent with its enforcement policy and was fault.
  6. Because of delay and lack of action on the previous notices the evidence became stale and the Council has had to carry out further investigation and issue new noise abatement notices. The timescale for compliance has yet to expire. At this point business A has yet to respond. Once the timescale has expired, I would expect the Council to consider what action to take without undue delay and to keep Mr X updated on progress.

Planning enforcement

  1. Planning enforcement is discretionary. Councils will often seek to resolve issues informally before commencing formal enforcement action. When the planning service was made aware of the breach of panning conditions it wrote to both businesses who submitted planning applications to try and regularise their hours of operation. Once the applications were refused, business B complied with the planning condition, but business A did not. The Council considered its enforcement options and issued a breach of condition notice on business A in March 2021, requiring compliance with 28 Days. There was no undue delay in the initial action taken by planning.
  2. There are no statutory timescales for enforcement action. However, we may find fault if we consider there was unnecessary or unexplained delay and, where this results in continued harm to a complainant, we may recommend a remedy.
  3. When business A failed to comply with the notice the Council took two months before inviting the owner for interview under caution. This delay was fault. I acknowledge business A failed to cooperate with the Council, however I find the Council has allowed the matter to drift unnecessarily, which meant the interview was not conducted until November 2021. This delay was fault.

Injustice

  1. Business A did not engage with the Council throughout the process and enforcement action by both environmental health and planning is ongoing. Without the Council’s delays it is likely that formal enforcement action would have commenced sooner but as enforcement action is ongoing, I cannot know the outcome or recommend a remedy for any harm that may have been caused. However, the delays in pursuing enforcement action and lack of updates have caused Mr X frustration and time and trouble in having to contact the Council.
  2. It is for the Council to decide what action to take next. However, it is open to Mr X to complain to the Ombudsman again if he considers there are continued delays by the Council in taking enforcement action.

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Agreed action

  1. Within one month of the date of the final decision the Council has agreed to:
    • write to Mr X to apologise for the delay in taking action and for not keeping him updated. The letter should also set out the action the Council intends to take going forward (as far as it can in the light of potential legal proceedings).
    • make a symbolic payment of £150 to acknowledge the frustration and time and trouble caused to Mr X by its delays.
  2. The Council has also agreed to continue its enforcement action, both for planning and environmental health controls, without further delay and to provide Mr X with an update on progress, at least every two months.

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Final decision

  1. I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman

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