Summary: Mr X complained the Council failed to take action about noise and breaches of planning conditions from two local businesses and keep him informed despite agreeing to do so as part of a previous Ombudsman investigation. We have found fault by the Council but consider the agreed action of an apology and symbolic payment to acknowledge the frustration and uncertainty caused to Mr X provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as 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 or keep him informed of progress despite agreeing to do so as part of a previous Ombudsman investigation. Mr X says the ongoing issues are affecting his mental health.
2. I have investigated the period following the conclusion of our previous investigation on 28 February 2022 only.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’  and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)
5. 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

6. I read the papers provided by Mr X and discussed the complaint with him. I have also considered information from the Council. I have explained my draft decision to Mr X and the Council and considered the comments received before reaching my final decision.

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What I found

Background and relevant legislation

Environmental health

7. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. 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.

8. 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.
9. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
10. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation
11. 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.
12. An abatement notice requires the person or people 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.
13. 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.

Planning enforcement

14. 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.
15. 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.
16. 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.
• 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.

17. 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 they can formally consider the issues.

Key events

18. This is a summary of the key events and does not refer to every action that took place.
19. Mr X lives near two separate takeaway businesses. The Ombudsman previously investigated a complaint from Mr X about the Council’s response to his reports. We found fault by the Council at the end of February 2022 in the time taken to progress matters and failing to keep Mr X updated. As part of the remedy for Mr X, the Council 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.
20. Following the Ombudsman’s recommendation in February 2022 we were satisfied the Council had provided updates to Mr X in March, April, June and July.

Environmental health

21. The Council visited business A in early March 2022 and witnessed a breach of an abatement notice which had been served in December 2021. The Council served a Requisition of Information notice on the business in March and conducted an interview in April.
22. The business confirmed in early May it was to obtain an acoustic assessment with recommendations for how the noise from equipment could be reduced. This assessment was completed towards the end of May. It is not clear if any works were agreed or implemented following this assessment.
23. The Council considered in May that there was no breach of an abatement notice by Business B.
24. Mr X contacted the Council in June to say he had provided several noise recordings for business A. The Council provided an update to Mr X at the end of June. The Council left a voice message for Mr X in early July and completed a site visit in early August when an updated witness statement was obtained.
25. The Council completed a site visit in early October and provided Mr X with an updated copy of his witness statement towards the end of October and asked for any additions or comments before finalising. Mr X returned the statement at the start of November.
26. The Council received legal advice in November that the abatement notices served on both businesses were not enforceable due to the passage of time and that they contained material defects.
27. Mr X contacted the Council in early December about the lack of progress. The Council spoke with Mr X in early December when he confirmed he was still experiencing noise nuisance from business A. The Council explained the situation regarding the abatement notice and apologised for the way the case had been investigated. The Council confirmed it would investigate the case as a priority and complete further monitoring in the New Year and would serve fresh abatement notices if a statutory still existed. Mr X also reported noise from business B and the Council agreed to open a new investigation and investigate.
28. The Council left a voice message with Mr X in mid-February 2023 to arrange the monitoring. The Council contacted Mr X towards the end of February when he explained the noise was not so bad after the extraction unit had been serviced the previous summer but it was variable depending on the setting of the extractor.
29. The Council completed a site visit at the beginning of March and found the noise was barely noticeable and was not considered intrusive. The Council also installed noise monitoring equipment in Mr X’s home. The Council completed a further site visit in mid-March. Mr X also provided his own noise recordings.
30. The Council reviewed the noise recordings towards the end of March and did not consider there was currently evidence of a statutory nuisance from either business. The Council has explained it would complete further monitoring and serve a new abatement notice if a statutory nuisance was identified. The Council has also confirmed if a breach of any such new notice was witnessed it would start legal proceedings.

Planning enforcement - Business A

31. Mr X reported in mid-April that both businesses had been open on Sunday and for business A this was happening all the time. The Council confirmed receipt of this information to Mr X.
32. The Council provided information to its legal team in May about possible prosecution. The Council advised Mr X at the end of August that the matter had been passed to its legal team. The Council has confirmed there followed a delay due to long-term staff absence.
33. Mr X contacted the Council in October to confirm business A was opening all hours but business B was adhering to its permitted hours following contact by the Council in August. The Council responded to Mr X in November.
34. The Council confirmed to Mr X in early December that it was taking legal action in relation to the planning related matters. Mr X sought information from the Council’s legal team about the action in February but was advised this was not information that could be released at that time.
35. The Council received a February 2023 Court hearing date for the breach of planning conditions but this was subsequently delayed to March. The Council advised Mr X of the March hearing date which he proposed to attend.
36. The Council completed three further site visits during March which confirmed ongoing breaches of planning conditions. At the Court hearing in March, the Court adjourned the hearing until May as one of the parties was not in the country. The Council has confirmed the matter returned to court in May and the company received a fine which concluded the Council’s investigation. Mr X has reported further breaches of its permitted hours and the Council has opened a new enforcement case to investigate.

Planning enforcement - Business B

37. The Council created a new enforcement case to separate the two businesses at the end of August 2022. The Council confirmed this action to Mr X and that it would remind the business of its permitted hours of opening.
38. The Council wrote to the owner at the start of September to remind them of its refusal of their application to vary a condition of the original planning permission and to remind them of the requirement of continued compliance with the hours in the original planning permission condition.
39. The Council had not received any further reports of out of hours operation by this business at the time of responding to the Ombudsman.

My consideration

Environmental health

40. The Council has noted the investigation was complex as it involved several pieces of external plant and machinery from more than one potential source. It has also accepted its investigation suffered from severe staffing difficulties during the relevant period. The Council has confirmed it has now recruited a new permanent member of staff which should help avoid similar future delays.
41. It is clear the Council was aware of a breach of the abatement notice served in December 2021 by business A from March 2022 but delayed taking further action over a considerable period. This is fault.
42. The Council has also accepted both abatement notices it served in December 2021 had material defects making them unenforceable as well as being affected by the passage of time. This is further fault which is compounded as a previously served notice was also effectively unenforceable due to the passage of time.
43. I am satisfied this repeated fault has caused Mr X significant frustration and uncertainty about whether the noise he was reporting could have been reduced sooner. I have taken into account the most recent monitoring has not identified a statutory nuisance although the matter is ongoing.

Planning enforcement

44. The Council responded to Mr X’s report in April 2022 about both businesses operating outside permitted hours.
45. I note Mr X confirmed business B subsequently complied with its permitted hours after the Council’s intervention.
46. However, following the Council’s consideration of legal action in May there is a significant delay before progressing the matter. The Council has accepted this delay and highlighted the impact of long-term staff absence.
47. Without the Council’s delay it is likely that formal enforcement action would have started sooner in relation to business A and I am satisfied the delay has caused Mr X significant frustration. However, I note that despite the outcome of the legal proceedings, Mr X has reported further breaches of its permitted hours which the Council has opened a new enforcement case to investigate. Therefore, on balance, I cannot say earlier action by the Council would have affected the actions of business A.

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Agreed action

48. The Council will take the following action to provide a suitable remedy to Mr X:

• write to Mr X to apologise for the delay and poor case handling identified in my statement (the Ombudsman has recently issued guidance on what we consider to be an effective apology) within one month of my final decision;
• pay Mr X £400 as a symbolic amount to acknowledge his frustration and uncertainty within one month of my final decision;
• complete further noise monitoring in relation to Business A (if it has not already done so) and provide an outcome to Mr X about whether it has identified a statutory nuisance and, if so, a timescale for further action within six weeks of my final decision;
• following the outcome of the further noise monitoring, it will provide monthly updates to Mr X about any ongoing statutory nuisance investigation; and
• ensure Mr X is kept updated on a six weekly basis of the progress (or otherwise) of the new planning enforcement investigation until it is concluded.

49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman