Summary: Mr B complained how the Council dealt with his reports of dust pollution, out of hours work and noise at a development near to where he lives. He also says the Council failed to deal with his communication efficiently between departments. We do not find the Council was at fault.

The complaint

1. Mr B complained how the Council dealt with his reports of dust pollution, out of hours work and noise at a development near to where he lives. He also says the Council failed to deal with his communication efficiently between departments.
2. Mr B says he has lost sleep and he is concerned about the health implications for himself and others.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I considered information from Mr B. I made written enquiries of the Council and considered information it sent in response.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory nuisances

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
8. Activities a council might decide are a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;

• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.

9. 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 property; and/or
• injure health or be likely to injure health.

10. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
11. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.

Planning enforcement

12. 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.
13. 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.
14. 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.

What happened

15. This chronology includes an overview of key events and does not detail everything that happened.
16. Mr B lives near to a development. The Council imposed several planning conditions on the development when it approved planning permission. The developer had to provide details to the Council of measures to minimise the emission of dust and noise from the site. The developer agreed to direct noise, dust and vibration away from sensitive areas. Construction works audible at the boundary of the site could not take place outside the hours of 7.30am to 7.30pm from Monday to Friday and 8am to 12.30pm on Saturdays. No work could take place on Sundays and Bank and National holidays.
17. Mr B contacted the Council in March 2023 about dust from the site. He said workers were crushing dust with no suppression and it was causing dust pollution.
18. An environmental health officer (EHO) visited the site and noted there was no crushing activities and evidence of dust. He emailed Mr B and said the crushing was complete. He said he had contacted the planning department to chase up information relating to the control measures for noise and dust. The planning department contacted the EHO and said it would investigate whether there had been a breach of planning control.
19. Mr B contacted the EHO in May and said he was still experiencing issues with dust pollution from the site. He also said work was taking place outside the approved hours. The EHO responded and said he had sent his concerns to the planning department.
20. Mr B chased the EHO for a response in June. He raised further concerns about out of hours work. The EHO responded and said planning officers were looking into the matter.
21. The planning department sent a letter to the developer and asked it to ensure works took place during approved hours. It also asked it to dampen the site to lessen the dust.
22. Mr B emailed the Council in late July and said workers had arrived on the site before 7am. He contacted the Council’s environmental health department in August about a noise pump on the site. He said there was humming 24 hours a day and it was affecting his health due to the lack of sleep. The EHO visited the site and reported he could hear the pump, but it was barely audible with other background noise. The EHO spoke to the site manager. The site manager agreed to erect an acoustic barrier around the pump to reduce the noise. The developer installed this the following week.
23. Mr B emailed the Council at the end of August and said the pump was still running throughout the night. He sent a further email and said work was taking place on the site before 7am. Officers from the environmental health and planning department visited the site at night. They reported the pump was silent.
24. The Council emailed the developer about out of hours work and explained if it did not comply, it could result in formal action. The site manager confirmed he had spoken to staff and would monitor the situation.
25. A planning enforcement officer visited the site twice in early September and reported there was no noise from the pump.
26. Mr B sent the Council recordings of noise from the pump, and further emails about out of hours work. The Council spoke to the site manager. The manager explained the pump did not run constantly as it worked on a flow system. He agreed to install a secondary acoustic barrier around the pump.
27. Mr B sent a formal complaint to the Council about its failure to properly deal with his concerns about out of hours work, noise, and dust pollution.
28. The Council responded to Mr B’s complaint. It said the site manager installed acoustic barriers around the pump and asked workers not to start formal construction works outside approved hours. It said preparation works, such as vehicles moving, took place outside approved hours. However, it was unlikely it could take enforcement action against the preparation works because of the specific wording of the planning condition. It also said it was subjective whether the operation of the pump was construction work as it was temporary work to prevent existing houses and the site from flooding.
29. Mr B asked the Council to review its response. He said the developer was still starting work before the approved times. He also said he was concerned about the exposure to dust and possibly asbestos.
30. The Council issued its stage two response. It said officers had been in contact with the developer each time Mr B had raised issues. The developer responded positively to its intervention. It also said there was no evidence to suggest asbestos was likely to be present on site. It said the developer could undertake setting up activities (including movement of vehicles around the site) outside the approved hours, but it could not undertake construction work unless it was an emergency and essential. It said the only evidence of activities taking place outside the approved hours was setting up activities and the pump temporarily diverting sewage and water away from the site. It said enforcement action is a last resort and there was no evidence of a major breach of planning control.

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Analysis

31. The Council acted appropriately when Mr B raised his concerns by contacting the developer. The developer installed acoustic barriers around the pump and spoke to workers about out of hours work. The Council also visited the site several times in response to Mr B’s concerns but did not witness any dust or significant noise from the pump that would be categorised as a statutory nuisance.
32. Enforcement action is discretionary, and councils may decide to take informal action to resolve the issues. In Mr B’s case, the Council decided informal action was appropriate because the developer responded positively to its intervention. The Council decided the out of hours work Mr B reported related mainly to setting up activities, rather than construction work. Therefore, it decided it was not a breach of planning control. It also considered the issues around the pump, but decided it was not construction work, and the pump was essential to stop properties from flooding. Those were decisions it was entitled to take.
33. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees. In this case, I am satisfied the Council took account of relevant guidance, information from Mr B and the developer, and officer’s notes of the site visits before reaching its decisions on Mr B’s case. I do not find fault.
34. The Council’s records show both the planning department and the environmental health department worked together to resolve Mr B’s concerns. Mr B received responses from both departments, and they both wrote to him and explained what action they were taking to resolve his issues. I do not find fault.

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Final decision

35. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman