Summary: The Council took too long to establish the planning position and resolve the unauthorised use of land next to Mr B’s home. Mr B suffered noise disturbance that will be mitigated by a barrier required by the planning permission the Council later approved. The Council’s avoidable delay however meant that Mr B suffered noise disturbance for longer than necessary. The Council has agreed to remedy this.

The complaint

1. Mr B complains that the Council:
• failed to properly investigate his complaint about noise nuisance and planning breaches on an industrial unit close to his home.
• has not communicated with him properly or kept him informed of its actions, intentions or decisions.

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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 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

4. I considered the information provided by Mr B and discussed the issues with him. 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 have taken their comments into account before reaching a final decision.

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What I found

The law and guidance

5. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
6. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
7. Government guidance says: “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)

What happened

8. Mr B lives next to land used as a builders’ merchants site. His garden abutting the site. In August 2020, Mr B complained to the Council that he was being disturbed by the use of the site as the builders’ merchants had expanded. He said he was disturbed by noise from staff and the movement of plant machinery on site. The Council asked Mr B to keep a diary of the noise and how it was affecting him so that it could investigate whether it was a statutory nuisance.
9. The Council visited the site three times. It recorded that there was noise but it did not constitute a statutory nuisance and the Council could not take enforcement action in this regard.
10. The Council asked the its planning control department to check whether the use was authorised. Mr B asked the Council again to investigate whether it could take action to stop the noise disturbance in April 2021. The Council advised him that it had already investigated and there was no basis for it to take action. Mr B made a formal complaint to the Council.
11. In August 2021, the Council decided that the merchant did not have permission to use the land for that purpose and so invited it to apply for planning permission that would allow it to continue. The Council granted temporary planning permission for to use the site as a builders’ merchant for three years from December 2021. The Council, had asked the merchant to commission a noise survey to mitigate the impact on Mr B and other neighbours. However the Council accepted that this was not proportionate for a temporary permission. On the advice of its Environmental Protection team, the Council attached a planning condition, that the merchant must within two months submit details of an acoustic barrier to run along Mr B’s boundary to mitigate noise disturbance.
12. It took until August for the merchant to submit a scheme and until October for the Council to approve it. The merchant had at first told the Council it could not comply due to issues over where the boundary was, established trees and that Mr B had built a fence inside his boundary (to keep his pets safe). The Council met with the merchant to discuss requirements, chased it to submit details, and when it did not, threatened to take enforcement action. Ultimately the Council gave the merchant the minimum acceptable requirements for an acoustic fence, which the merchant agreed to and this is the approved design. The Council stipulated that the merchant installs the acoustic barrier within two months but it has not completed this.
13. Mr B questioned whether the approved design would be sufficient to protect him from the noise. He asked whether it was tall and long enough. The Council explained that its Environmental Protection team had confirmed that the fence does not need to run the length of the boundary as it will run to Mr B’s garage, which will itself provide a barrier. The Council also confirmed that the height exceeded the technical guidelines and so was sufficient to help reduce the noise.
14. The land is owned by the Council and leased to the merchants. The Council considered whether it could take any action as landowner and lessor. The lease dates back to 1966 and the Council has explained that the wording of the lease does not tightly control the use of the land as it would my modern standards. The lease is expired. The company can legally hold over and continue to occupy the site. The Council intends to negotiate a new lease with tighter control as to the use of the site.

Was there fault by the Council causing Mr B an injustice?

15. There was no fault in how the Council investigated and decided whether the noise was a statutory nuisance. It considered Mr B’s evidence, visited the site at times it might expect to witness the noise, and made a decision based on these.
16. From the information I have to date, the Council took too long to establish that the merchant needed to apply for planning permission. It is this that has allowed the Council to insist on some noise mitigation for Mr B. The Council took from August/ September 2020 to August 2021 to confirm to the merchant that it needed planning permission and this is too long.
17. The merchant took some months to submit the planning application. The merchant also took some months to submit details of the acoustic fence for the Council’s approval. Clearly the Council is not responsible for delay by the merchant. In these circumstances, the Council has to consider whether to take enforcement action. Government guidance says that enforcement must be proportionate and the Council must show that it tried to resolve matters first. The Council has also explained that enforcement can take a long time and carried the right of appeal which also adds to the time it takes to resolve the issue. The Council has shown that it kept the prospect of enforcement action under review. It warned the merchant of this when it delayed in submitted details of the fence. The Council could have taken enforcement action, but was able to resolve the problem without doing so. There was no fault in the Council’s approach.
18. There is no fault in how the Council decided that the barrier will be sufficient. It has consulted officers with the relevant expertise and properly considered the matter. There is also no fault in how the Council considered its position as landowner and lessor.
19. Although the barrier took a long time to be approved and still is not erected, the Council’s early delay in establishing the planning position, means Mr B has had to suffer the noise disturbance for a year without significant progress, and this is a year longer than had the Council acted without delay. I do recognise that the Council now has a planning condition which it can enforce should the merchant not erect the barrier.

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Agreed action

20. In recognition of the distress to Mr B and his lost amenity caused by the Council’s delay, the Council has agreed it will:
• Apologise to Mr B in writing
• Ensure that it keeps him up to date with how it intends to deal with any further delays by the merchant; and
• Pay Mr B £250.
21. The Council will provide us with evidence it has complied with the above actions.

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Final decision

22. I have completed my investigation. There was fault causing injustice.

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Investigator's decision on behalf of the Ombudsman