Summary: Mr N and his neighbours complain about the Council’s lack of planning enforcement, or environmental nuisance action, to deal with vibrations from a factory. The Ombudsman’s decision is there is some evidence of fault, in an avoidable delay. But the Council has taken adequate action in commissioning two independent reports. The reports did not find grounds for the Council to take enforcement action. So we find no fault in the decisions on enforcement.

The complaint

1. The complainant, whom I shall refer to as Mr N, complains on behalf of his family and six neighbouring households. They complain about the Council’s inaction in dealing with vibrations from a factory in a neighbouring industrial estate.
2. Mr N notes the Town and Country Planning Act says a council should refuse planning permission for something that is damaging to neighbours. But the Council has not done this.
3. He also says the Council’s Environmental Health team should have been taking action to deal with the nuisance the vibration causes.
4. A second consultant the Council commissioned placed monitoring equipment in part of the house that was unlikely to record significant vibrations.
5. Mr N says the injustice to the families is the continuing nuisance from the vibrations.

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The Ombudsman’s role and powers

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
8. 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 we considered this complaint

9. As part of the investigation, we have:
• considered the complaint and the documents provided by Mr N;
• made enquiries of the Council and considered its responses;
• spoken to Mr N;
• sent my draft decision to Mr N and the Council and invited comments.

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What we found

Legal and administrative background

Statutory nuisance

10. The Council’s environmental health team provides a service to investigate complaints of statutory nuisance. The statutory provisions relating to nuisance can be found in the Environmental Protection Act 1990. Vibration is included in the Act’s provisions in relation to noise.
11. There is no strict definition of a ‘statutory nuisance’ and there is no set level at which noise becomes a nuisance. In deciding whether a noise amounts to a nuisance an investigating officer would consider factors including:

• the locality in which the noise is occurring;
• the time of day or night the noise is occurring;
• the loudness and duration of the noise; and
• how often the noise occurs.

Planning

12. A breach of planning control is defined in Section 171A of the Town and Country Planning Act 1990 as:
• The carrying out of development without the required planning permission; or
• Failing to comply with any condition or limitation subject to which planning permission has been granted.
13. Planning law groups common uses of buildings into classes. A change of use of a building needs planning permission, if it is a material change of use. There is no legal definition of ‘material change of use’. But it is about the significance of a change and the resulting impact on the use of land and buildings. Whether a material change of use has taken place is a matter of fact and degree. Councils should consider the facts of whether there is a change of use on a case by case basis.

What happened

Background

14. Mr N and his neighbours live over the road from an industrial estate. Around mid-2017 they say they began to feel vibrations. They identified the factory they believed the vibrations were coming from. They contacted the Council.
15. In the summer, the factory installed rubber footings on a press it had recently installed. Initially after this, Mr N and his family reported they could not feel the vibrations. But later they returned.
16. In October the Council’s planning enforcement team opened an investigation, after contact from another resident. A planning officer visited twice (the second visit was unannounced). He did not find any breach of planning control, as there had not been any material change in the building’s use, or breach of a planning condition (see paragraphs 12 and 13).
17. The Council wrote to one of the neighbours. It advised her about the inspection and that it had visited the whole site. It noted planning had classed the building as for light industrial use, in a planning permission granted in the 1970s.
18. In November an Officer (Officer 1) in the Council’s environmental health team visited the site twice, at the request of the complainants. She advised colleagues in an email at the time that she had felt vibrations, but nothing significant.
19. Mr N complained about the Council’s actions. Its response did not uphold the complaint.

The events we have investigated

20. At the beginning of 2018, due to the neighbours’ continuing concerns, the Council agreed to commission an independent consultant to monitor the vibrations (the Council’s view was it did not have the equipment to do this itself). The Council says, “to ensure independence, the window for the installation of the equipment was a random week defined by the Environmental Case Officer without the prior knowledge of either the company or the residents”.
21. The Council met the complainants in March to advise them the monitoring had recorded vibrations, but not at anything that would constitute a statutory nuisance. The report notes the following.
• The majority of ‘impacts’ were from the adjacent commercial building. They were higher when the unit was operating.
• The levels of vibration were within the relevant British Standard guidelines. So while the vibrations might cause some cosmetic damage, they would not cause major structural damage.
• It suggested the machinery in the business was checked to ensure anti-vibration mounts were fitted.
22. The Council’s planning enforcement team’s view was the vibrations were a long way short of providing evidence of a change of use. And the report had not linked the vibrations to specific premises.
23. The company working from the factory met with residents to discuss their concerns. Officers from the Council’s environmental health and planning enforcement teams were also present. The complainants had also asked their local Councillor to intervene.
24. Later in the year, the Council agreed to commission a second monitoring exercise. It took several months to find a contractor that could do this specialist work. I can see, from its records, it spent a good deal of this time negotiating with a contractor who it later decided could not provide the service it wanted. By December, the Council had found a new contractor.
25. The Council says the complainants were involved in shaping the terms of reference for the monitoring. The consultant then placed monitoring equipment into Mr N’s home for two weeks in December 2018. Mr N complains about where in the house the consultant placed the monitoring equipment.
26. The consultant prepared a report. It noted as part of its investigation it had reviewed the neighbours’ diary sheets and other evidence Mr N had provided, as well as Council documents. It included a section on vibration theory and noted human perception of vibration varied considerably. It also reviewed the first survey report.
27. The new report’s findings included the following.
• It noted both surveys showed results lower than the British Standard guidelines for minor cosmetic damage.
• An analysis of the recordings cross-referenced with the neighbours’ logs.
• The writer’s view that the frequency, timing, and relatively short duration of the vibrations meant the Council would be unlikely to take successful action for statutory nuisance.
• Its view was the most likely source of the vibrations were presses in the factory.
28. In January 2019, the Council responded to a complaint from Mr N at the second stage of its complaints procedure. It acknowledged some delay in the investigation of the vibrations, due to leave and officer illness. But it explained the complex and technical investigation had taken time, as had sourcing external consultants. It advised it had cross-referenced log-sheets the complainants had kept with the recording exercises. But the results were inconclusive. It apologised for the delay in arranging the second consultant.
29. Mr N and his neighbours complained to the Ombudsman. They also had a meeting with the Council about the second consultant’s report. This included a discussion of the relevant law and information about vibration.

Analysis

30. I have investigated matters back to the beginning of 2018, which is around 12 months before Mr N’s complaint to the Ombudsman.
31. I can appreciate the strength of the complainants’ feelings concerning the vibrations, and can well understand their sense of frustration at what they see as the inadequacy of the Council’s response. Mr N tells me the vibrations are continuing to affect them.
32. But the Ombudsman has no power to question the merit of decisions which have been properly taken, even though the complainant may disagree with them. This means that we look at the way in which decisions are taken and do not criticise the decisions themselves, unless there is evidence there was fault in the way they were reached. Our role is not to take a view on whether there is a statutory nuisance, or a change of planning use.

Statutory nuisance

33. To act against a statutory nuisance, the Council would need evidence it could use in court. This would need to include evidence that the time of day, duration, frequency, intensity and so on of the vibrations might amount to a nuisance. This is an objective test – it is not based on how the individuals concerned might experience the vibrations, which can vary from person to person.
34. The Council has sought to gather evidence to show a nuisance. It has carried out site investigations, looked at the neighbours’ logs and commissioned two independent consultants to monitor the situation. But it has not found evidence that would lead it to the view it might successfully win a claim of statutory nuisance against the factory owners. I see no significant fault that affected those views. This means we cannot question the merits of the decision, no matter how strongly Mr N disagrees.
35. Mr N questions the methodology of the second consultants. But I have seen their CVs in the Council’s evidence. This shows their extensive experience. So I see no reason to question their professional judgment.
36. There was a delay in commissioning the second set of monitoring. A review of the Council’s file shows this in large part this was because it struggled to find a specialist contractor who could do the monitoring. It could have earlier ascertained that one contractor could not carry out what it wanted. My view is this amounts to some avoidable delay. The Council has already apologised for this. But I cannot see how it affected the findings on whether there was any statutory nuisance.
37. Mr N is concerned the Council may have been acting favourably towards the company that runs the factory. I have checked the Council’s files and can find no evidence to corroborate Mr N’s assertion. Rather, there are communications between officers in the Council’s files stressing the need to take care in remaining independent.

Planning enforcement

38. Mr N notes the Town and Country Planning Act says a council should refuse planning permission for something that is detrimental to neighbours. But the Council granted the planning permission in the 1970s. It is too long ago for the Ombudsman to now consider that decision.
39. To take enforcement action now the Council would need to be satisfied there was either a breach of a planning condition, or there had been a change of use of the building. Its view is there has been neither. I see no procedural fault in how it arrived at that view, which it has consistently held. So I cannot question its merits.

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Final decision

40. I am making a finding of fault, because of some delay. But the Council has apologised. And, as the fault is unlikely to have affected the Council’s view on enforcement action, the apology is a sufficient remedy. I have competed my investigation.

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Investigator's decision on behalf of the Ombudsman