Summary: Mr B complained the Council breached planning control. He said the Council leased a property to a housing association for use as supported living accommodation without applying and getting the right planning permissions. He also complained the Council did not investigate or respond properly to his noise complaint. Mr B said this negatively impacted his and his wife’s enjoyment of their home and caused them distress. The Council was at fault for breaching planning control and not considering whether the property met building regulations. The Council will make a financial payment to remedy the injustice caused to Mr and Mrs B by its fault.

The complaint

1. Mr B complained the Council breached planning control. He said the Council leased a property to a housing association for use as supported living accommodation without applying and getting the right planning permissions. He also complained the Council did not investigate or respond properly to his noise complaints or take any action to mitigate the noise.
2. Mr B said this negatively impacted his and his wife’s enjoyment of their home and caused them distress. He said they had to move into his late father’s house for two months because of the disturbance.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
6. I cannot decide whether an organisation has been negligent and have no powers to enforce an award of damages.
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:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
9. Mr B and the Council commented on two draft decisions. I considered their comments before making a final decision.

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What I found

Legislation and guidance: planning

10. Planning uses of land or ‘use classes’ are set out in regulations (Town and Country Planning (Use Classes) Order). They cover a range of typical uses, like residential, business, industrial and commercial. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide. There is no duty on the Council to consult with residents about an application for a change of use.
11. Residential institutions are in Class C2. Class C2 institutions are hospitals, nursing homes, residential schools, colleges, or training centres, and premises which provide residential accommodation and care to people in need of care.
12. Class F1 includes any use, not including residential use, for the provision of education.

Legislation and guidance: building control

13. The legislative framework of the 'building regulations' is principally made up of the building regulations 2010 and the building (approved inspectors etc.) regulations 2010. The regulations set standards for the design and construction of buildings and ensure the health and safety of people in and about those buildings.
14. Building regulations part B deals with fire safety:
• B1 – Means of Warning and Escape
• B2 – Internal Fire Spread (Linings)
• B3 – Internal Fire Spread (Structure)
• B4 – External Fire Spread
• B5 – Access and Facilities for Fire & Rescue Services
15. Work becomes immune from enforcement action two years after the work has been completed. 

Legislation and guidance: statutory nuisance

16. 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.
17. To be considered a statutory nuisance, they 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.
18. 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.
19. If the Council considers the nuisance amount to a statutory nuisance it must serve an abatement notice under section 80 of the EPA. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. If the recipient of the abatement notice contravenes or fails to comply with the notice, they may be guilty of a summary only offence.
20. Under section 82 of the EPA, complainants also have the right to approach the magistrates’ court direct and apply for an abatement order. In this case, the court will consider the complainant’s evidence itself and decide whether a statutory nuisance exists. This is useful where a council is responsible for the statutory nuisance, as a council cannot serve an abatement notice on itself. 

What happened

21. This chronology includes key events in this case and does not cover everything that happened.
22. Mr and Mrs B’s house is semi-detached. It is attached to property 1.
23. In 1993, the Council gave planning permission for property 1 to be used as a non-residential education centre for adults with learning disabilities for three years. This was renewed in 1996. In 1999, the Council granted planning permission for the continued use (on a permanent basis) of property 1 as a non-residential education centre for adults with learning disabilities. Planning permission was granted on the condition property 1 was used for this and no other purpose (including any other purpose within Class D). Under the Town and Country Planning (Use Classes) Order amendment 2020, non-residential education centres became Class F1.
24. The Council leased property 1 to a housing association in 2016 for seven years. The housing association used the property for residential placements for individuals with complex needs who needed full-time care. The housing association believed the property had the correct designated planning use for supported living placements. It refurbished the property and installed fire doors and an alarm system before using it for supported living. Adult social care commissioned the supported living placements and had full nomination rights. The lease said following the Council’s nomination of service user occupiers, the housing association had to promptly grant an assured shorthold tenancy.
25. Mr B complained to the housing association about noise from property 1 in 2017. The housing association undertook work to reduce the noise and Mr B was satisfied with the result. In 2018, Mr B complained to the housing association about noise from property 1. The housing association told him it would not install soundproofing because it was unlikely to be effective in reducing, what it considered, everyday living noise one would expect to hear in a semi-detached home.
26. A tenant moved out of property 1 in May 2021. Mr B spoke to the housing association informally about the noise from property 1. The housing association told Mr B it would put together a schedule of works and speak to the Council.
27. In August 2021, the Council moved a new tenant into property 1. It did not tell the housing association in advance.
28. Mr B made a formal complaint to the housing association in August 2021. He said someone was moving into property 1 and there was a lot of noise. He questioned how suitable property 1 was for supported living. He also complained it had breached the party wall act. Mr B said he felt unable to stay in his property and asked the housing association to fund alternative accommodation. He said the noise was causing his wife distress.
29. The housing association contacted the Council. The Council apologised for not letting it know. It said it had moved furniture into property 1 in preparation for the tenant moving in.
30. The housing association gave the Council a list of works it was planning to do before moving a new tenant into property 1. This included improving sound insulation. It recommended the tenant did not move in until it had completed some of the work. The Council had already moved the tenant in.
31. Mr B contacted the Council and made a noise nuisance complaint. He said when the previous tenant left property 1, the housing association reassured him it would sound insulate the property before another tenant moved in, but this did not happen. He said doors banging and noise made by the tenant and his carers disturbed him and his wife. He explained his wife was having to live elsewhere because of the noise.
32. The Council discussed property 1. It said unless its tenant was creating more noise than normal families would, there was no need for it to improve the sound insulation. An attendee confirmed the tenant was creating excessive noise and recommended the Council improve the sound insulation.
33. The housing association responded to Mr B’s complaint in September 2021. It upheld his complaint about noise and accepted property 1 was unsuitable for the current tenant. It recognised this impacted on Mr and Mrs B’s quiet enjoyment of their home. It told Mr B it had met with the Council to discuss his concerns and the work property 1 needed. It did not uphold his complaint about the breach of the party wall act.
34. Mr B asked the Council to assess whether the noise was a statutory nuisance. Environmental health told him if it found a statutory nuisance, it would not be able to serve an abatement notice because it owned property 1. It installed noise monitoring equipment in October 2021. When it reviewed the recordings, it heard non-verbal communication from the tenant at property 1 and banging. Environmental health visited the properties in November 2021. It heard a few noises from property 1 when in Mr and Mrs B’s house. It recorded the noises were not necessarily loud but could be heard because of how the properties were built which resulted in poor sound insulation. It said because of this, the noise could not constitute a statutory nuisance. Environmental heahealth told Mr B he could apply to Court for an abatement notice himself.
35. The Council decided it would build an insulated false wall along the party wall of the ground floor of property 1 to deaden the travel of sound through the existing wall. It told Mr B if he did the same to his house, it would deaden most noise.
36. In December 2021, Mr B asked the Council for details of the planning permission for the change of use of property 1 from Class F1 (non-residential education centre) to Class C2 (residential accommodation and care to people in need of care). The Council found it had not changed the permitted use for property 1 and it was still Class F1. An internal email suggested the Council make an urgent retrospective planning application for a change of use for property 1.
37. In March 2022, the Council made a retrospective planning application for a change of use of property 1. Environmental health told the Council it would need to undertake a noise survey as part of the planning application. Mr B objected to the retrospective planning application.
38. In May 2022, Mr B made a formal complaint to the Council about the use of property 1. The Council told Mr B because it had not decided whether to grant the change of use, it would not consider his complaint. Mr B brought his complaint to the Ombudsman.
39. The Council told Mr B building control had not been told property 1 was being used for supported living. Building control said, if it had been told about the change of use, it would have raised the following issues about fire safety:
• These are higher fire risk premises, and it would expect a good standard of fire safety to be provided including the fitting of fire doors and the provision of an alarm & detection system.
• Consultation with the fire & rescue service.
• The need to provide fire safety information to the responsible person.
40. The Council confirmed property 1 had fire doors and an alarm system fitted before it was used for supported living.
41. In November 2022, the Council withdrew its planning application. The Council told Mr B it would move the tenant living at property 1 by December 2022. It said it would then sell the property. It told him it had withdrawn its planning application. The Council cancelled the noise survey. The housing association ended their lease for property 1 in December 2022.

Analysis

42. Before the Council leased property 1 to the housing association in 2016, it should have applied for a change of use from Class F1 (non-residential education centre) to Class C2 (residential accommodation and care to people in need of care). The Council did not do this which was fault and a breach of planning control.
43. In August 2021, the Council moved a new tenant into property 1 without telling the housing association in advance. This was fault and meant the housing association did not have the opportunity to consider whether the property was suitable for the tenant or complete planned work to increase the sound insulation between the two properties.
44. The Council was aware from September 2021 that property 1 was not suitable for the tenant. This was noted in the housing association’s complaint response to Mr B. At this point, the Council should have considered rehousing the tenant. There is no evidence the Council did this until July 2022. This was fault.
45. I found no fault with the Council’s noise nuisance investigation. The Council collected and reviewed the evidence. It listened to the noise recordings, carried out a site visit and considered the structure of the properties. It used its professional judgement to decide there was not a statutory nuisance. As there was no fault with its decision making, I cannot consider the merits of its decision.
46. When the Council changed the use of property 1 it should have also considered whether the property met building regulations associated with a change of use from Class F1 to Class 2. The Council did not do this, which was fault. The building regulations of relevance to this complaint were about fire safety. The housing association confirmed it installed fire doors and an alarm system. An application should have been made for planning control approval, but one was not. This was fault. Although, the Council failed to consider whether property 1 met building regulations when its use changed in 2016, I do not consider this caused Mr and Mrs B significant injustice.
47. Although the noise was not a statutory nuisance, it was not standard household noise. The Council stated the tenant was creating excessive noise and the housing association which upheld Mr B’s complaint about noise and accepted property 1 was unsuitable for the current tenant. If the Council had applied to change the use of property 1 to residential, planning permission may not have been granted and, in this case, it would not have been used for supported living placements. The noise nuisance caused Mr and Mrs B unnecessary distress from August 2021 to December 2022. I recommend the Council make a payment to Mr and Mrs B to remedy this injustice.
48. Mr B undertook his own investigation into property 1’s planning permission. Indeed, it was Mr B who told the Council property 1 did not have the right use class for supported living. The Council should have been aware of this in 2016 when it leased the property to the housing association, and in 2021 when Mr B complained to the Council about a noise nuisance. The Council’s failure to be aware of this put Mr B to unnecessary time and trouble. I recommend the Council make a payment to Mr B to remedy this injustice.

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Agreed action

49. Within one month of the final decision, the Council will:
• Pay Mr B £500 for the distress caused to him and his wife because of the Council’s faults.
• Pay Mr B £300 for the time and trouble he went to chasing the Council to resolve the matter.
50. Within two months of the final decision, the Council will:
• Review its policy for leasing properties to ensure it checks properties have the correct planning permissions for their proposed use and meet the relevant building regulations.
51. The Council should provide the Ombudsman with evidence it has completed these actions.

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Final decision

52. I have completed my investigation and uphold Mr B’s complaint. Mr and Mrs B were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman