Summary: Mr X complains the Council has failed to take appropriate or timely enforcement action in relation to breaches of planning control and noise nuisance from a site opposite his home. The Council’s failure to properly investigate Mr X’s concerns about noise nuisance and unauthorised use of the site amounts to fault. This fault has caused Mr X an injustice.

The complaint

1. The complainant, whom I shall refer to as Mr X complains the Council has failed to take appropriate or timely enforcement action in relation to breaches of planning control and noise nuisance from a site opposite his home.

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What I have investigated

2. I have investigated Mr X’s complaints about the height of the site fence; the height of the racking and materials stored at the site; the landscaping and unauthorised use of the site. I have also investigated his complaints about the hours of operation and noise nuisance from forklift trucks which are in continuous use at the site.

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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 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)
5. 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 I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X
• Mr X 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

Planning enforcement

7. 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. 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 2018, paragraph 58)

Noise nuisance

8. Councils must consider complaints about noise that could be a statutory nuisance. For a noise to count as a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other property
• Injure health or be likely to injure health
9. A statutory nuisance will usually need to be witnessed by the Environmental Health Officer and they will come to a judgement. The process of deciding what noise forms a nuisance can be subjective. The noise, its length, timing and location may be considered when deciding whether a nuisance has happened.

What happened here

10. Mr X’s property is located within an industrial estate. Several years ago, the Council granted planning permission to demolish an existing commercial building and change the use of a site opposite Mr X’s home to open storage. Mr X had objected to the proposal which he considered was part of a much larger expansion plan by the developer.
11. In 2018 Mr X contacted the Council about several of planning infringements at the site. He was concerned that the developer had erected a 4-metre-high fence around the site, when the planning permission only allowed for a 2.5 metre fence. Mr X was also concerned about the height of towers and racking at the site, and that materials were stacked dangerously high.
12. Mr X also complained that landscaping intended to screen the site was ineffective as the plants and shrubs had been planted into rubble and not survived.
13. In addition to planning concerns, Mr X also reported noise nuisance from the site. The site was in use all day, every day, and Mr X complained the noise from the forklift trucks on the site and roads was intrusive and disturbed his family’s sleep.
14. A Planning enforcement officer confirmed the Council would look into the Mr X’s concerns. The officer also confirmed there are no restrictions on hours of operations at the site. The only restrictions in place relate to the delivery of materials and dispatch of goods.
15. An Environmental Health (EH) officer also wrote to Mr X setting out how the Council investigates complaints of noise nuisance and confirmed they had written to the site owner. The EH officer suggested if the noise did not reduce, that Mr X report the noise when it occurred so that officers could visit to witness the noise. The site owner confirmed they would instruct all forklift truck drivers to restrict operations to buildings between 10:30pm and 7am.
16. As Mr X continued to complain about noise from the site, the EH officer and the planning enforcement officer visited Mr X in November 2018 to discuss his concerns. The Council’s notes of this meeting state they discussed a range of issues including noise, planning matters and environmental pollution. Some of these issues were outside the Council’s jurisdiction and the officers advised Mr X to contact other agencies. The notes state Mr X complained of noise from the site all day, every day but officers did not hear anything.
17. The planning enforcement officer confirmed in early January 2019 that they were arranging a site meeting with the owner to discuss the issues the officer believed were breaches of planning control. Later that month the officer confirmed the height of the fence at the site and the material used was in accordance with the approved plans. The officer also confirmed they would inspect the planting again in the spring to see whether any species had died or needed to be replaced.
18. In relation to the racking and height of material, the planning enforcement officer confirmed the racking should be removed and the height of the stored material lowered by 31 January 2019. The Council would visit the site again to ensure the site owners had complied. The planning enforcement officer confirmed they had not identified any other breaches of planning control at the site.
19. Mr X queried the planning enforcement officer’s comments as the fence was clearly higher than the 2.4 metres stated in the planning permission. The officer sent Mr X a copy of the approved plans and confirmed the fence fronting Mr X’s street should measure 3.6 metres and the stacking should not exceed 4.1 metres. The Council had agreed to this fencing to screen the storage area from Mr X’s street. The officer noted the 2.4 metre fence Mr X referred to was on an adjoining street, not Mr X’s street.
20. In February 2019 the planning enforcement officer reiterated that there were no planning conditions relating to the hours of operation at the site. The officer had nevertheless contacted the site owners to advise that they considered use of the forklift at around 9pm unreasonable. The officer was satisfied by the owner’s response.
21. Mr X continued to contact the Council throughout 2019 to complain about deliveries to the site outside the permitted hours and noise from forklift trucks and operations at the site. Mr X stated there was continuous noise every night from the site which disturbed his family’s sleep and affected their wellbeing.
22. The planning enforcement officer contacted the site owner again in November 2019 and advised the Council would be monitoring the site outside normal working hours to check for noise nuisance. The site owners confirmed they would again instruct all forklift truck drivers to restrict operations to buildings between 10:30pm and 7am.
23. Mr X has asked the Ombudsman to investigate his complaint. He asserts the Council demonstrates favouritism towards the site owner and he has lost faith in the Council’s willingness and ability to resolve the issues. Mr X would like the Council to place restrictions on loading and unloading times, and on machinery movements. He would also like the Council to reduce the height of stacked materials and the retaining fence and ensure the owners install planters so that foliage will grow.
24. In response to my enquiries the Council states Section 79 of the Environmental Protection Act 1990 identifies matters which can constitute a statutory nuisance. This includes noise emitted from or caused by a vehicle, machinery or equipment in a street. The Environmental Health service may take enforcement action to control the noise from the operation of forklift trucks if satisfied that a statutory nuisance exists. But it must consider whether the use of the forklift trucks is unreasonable. In this case, forklift trucks are operated from premises which are located on an industrial estate and which do not have restrictions on the hours of operation imposed by planning controls. The Council states the evidence currently available does not suggest the forklift trucks are being operated unreasonably. Its visits to the site have not provided evidence of unreasonable operation of forklift trucks in Mr X’s street. It states the use is taking place in accordance with planning consents for opening and operation times and are reasonable having regard to the lawful designated use of the site.
25. The Council operates an out of hours service for noise complaint, which can respond to complaint between 8pm and midnight or 2am. But it is not a 24-hour service. The Council states Mr X alleges the noise is continual, and although he is aware of the environmental health service’s operational times, in general he chooses to contact the service at a time it is unable to respond.
26. The Council also states Mr X complains about the noise caused by the employees cars as they arrive or leave. The Council cannot control these matters through Environmental Protection Act powers.
27. In relation to the height of the boundary fencing, the Council states this was originally going to be a 2.5 metre palisade fence. But due to Mr X’s objections, as part of its consideration of the application, the Council discussed reducing the visual impact on Mr X with the developer. The developer submitted amended plans which replaced the 2.5 metre palisade fence with a 3.6 metre weld mesh fence and hardy perennial evergreen vines planted in 500mm raised rendered blockwork. The planning officer’s report refers to the change in fencing to overcome Mr X’s concerns about the view from his property and the planning permission refers to the amended plan.
28. In response to the draft decision the Council has highlighted there are a number of different planning consents in the vicinity of the site. Some of these include restrictions on delivery vehicles but they are not necessarily in proximity to Mr X’s property. It states the planning enforcement team is monitoring the situation with support from environmental health.
29. A senior environmental health officer carried out observations of the night time activity associated with the site over four consecutive nights in September 2020. Although they observed that fork lift trucks operate regularly in the street the officer did not conclude a statutory nuisance existed. The Council states the officer contacted with the management of the site who advised activity was higher than normal due to a substantial order related to the Covid-19 emergency. The environmental health officer directed the company to minimise any night time fork lift truck activity.
30. The Council states the environmental health officer was specifically monitoring compliance with the planning conditions. However, they noted the only vehicle movements during the observation period were fork lift trucks and occasional movement of private cars used by employees arriving at or leaving the premises. The officer did not observe any vehicle movements for delivery to or dispatch from the site during the monitoring period.
31. The environmental health officer has had further meetings with management at the site in October and November 2020. The Council states the company agreed to take steps to change the night time operation and further night time observation was planned for November 202 to determine the impact of these steps.

Analysis

32. The Ombudsman’s role is to review the process by which decisions are made, and where we find fault, to determine whether a significant injustice was caused to the individual complainant.
33. It is clear Mr X and the Council have differing views about the development and appropriateness of the activities at the site. Mr X has made numerous complaints which the Council has investigated to varying extents. Based on the information available I am not persuaded the Council has investigated as thoroughly as we would expect in all instances.
34. A planning enforcement officer has considered Mr X’s concerns about the height of the boundary fence and the height of material stacked at the site. The officer concluded the fence was built in accordance with planning permission, but that the materials were stacked too high, and took action to rectify this. There is no evidence of fault in the way the officer reached this decision. It is clear from the documentation that the boundary fence was amended during the planning process. The Council has granted planning permission for a 3.6 metre high green weld mesh fence with perennial evergreen vines, which is what has been erected. It is unclear whether the planning enforcement officer revisited the site in Spring 2019 to check on the foliage, but images from Google Maps dated June 2019 show vines growing up the fencing.
35. However, I consider the planning enforcement service’s failure to monitor or attempt to witness the unreasonable noise and unauthorised deliveries Mr X complained amounts to fault.
36. Although there are no planning conditions limiting the hours of operation at the site, the planning enforcement officer advised that use of forklift trucks after 9pm would be considered unreasonable. The site owner has twice confirmed in 2018/2019 that they would restrict the use of forklift trucks overnight but there is no evidence the Council checked these restrictions were implemented.
37. There are restrictions on the delivery of materials and the dispatch of goods and Mr X has repeatedly complained about lorries arriving and leaving the site outside the permitted hours. But there is no evidence planning enforcement officers visited or monitored the site to establish whether there were breaches of planning control. The planning enforcement officer advised the site owner in November 2019 that the Council would monitor the site outside normal working hours, but there is no evidence this monitoring took place.
38. I recognise the environmental health out of hours service visited the site in November 2018 and February 2019 following Mr X’s complaints of noise from deliveries outside the prescribed hours. But I do not consider this demonstrates adequate consideration of Mr X’s concerns. I recognise that pressure on the out of hours service will inevitably mean that officers cannot always attend the site immediately. In this case an officer visited the site over two hours after Mr X had reported noise from unauthorised deliveries, by which time the deliveries were complete and the noise could not be witnessed. Given the circumstances I consider the Council should have done more to witness the problems Mr X repeatedly complained of.
39. The Council’s records show Mr X complained to the environmental health service about noise nuisance from the site on a regular basis throughout 2019. Yet officers made no further visits after February 2019 and did not consider it necessary to monitor the site.
40. The Council states it has not witnessed a statutory nuisance and the evidence it has obtained does not suggest the forklift trucks are being used unreasonably. However, I am concerned the Council reached this decision without properly investigating the matter. I am not persuaded the Council could be satisfied there is no statutory nuisance or that no further action is necessary, given its limited attempts to witness the noise. The Council has no evidence of a statutory nuisance, but it has not sought to obtain any.
41. I consider there were failings in the way the environmental health service responded to Mr X’s reports of noise nuisance which amount to fault.
42. The Council has now carried out night time monitoring from Mr X’s street to witness the extent of noise and vehicle movement at the site. The Council did not consider the activity observed amounts to a statutory nuisance but has nevertheless asked site management to minimise night time fork lift truck activity. While I recognise Mr X will disagree with the Council’s decision, having now carried out monitoring, it is one the Council is entitled to make.
43. I would expect the Council to inform Mr X of the outcome of its monitoring and discussions with the management of the site.
44. Having identified fault, I must consider whether this has caused Mr X a significant injustice. The location of Mr X’s property means that some level of noise is inevitable, and some issues Mr X complains of are not within the Council’s control. But it is clear the Council’s failure to properly investigate Mr X’s concerns means he has been put to unnecessary time and trouble in trying to resolve this matter.

Agreed action

45. The Council has agreed to apologise to Mr X and pay him £250 in recognition of the time and trouble he has been put to by the Council’s failure to properly investigate his concerns about noise nuisance and unauthorised use of the site.
46. The Council should take his action within one month of the final decision on this complaint

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Final decision

47. The Council’s failure to properly investigate Mr X’s concerns about noise nuisance and unauthorised use of the site opposite his home amounts to fault. This fault has caused Mr X an injustice.

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Parts of the complaint that I did not investigate

48. I have not investigated Mr X’s concerns about the way a roof containing asbestos was removed from the site opposite his home. These works took place in late 2017, and Mr X complained to the Council at the time. If Mr X was unhappy with the Council’s actions, we would have expected him to raise his concerns with the Ombudsman within the following 12 months. Mr X did not contact the Ombudsman until late 2019, so this is a late complaint and there are no good reasons to consider it outside the 12-month timeframe.

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Investigator's decision on behalf of the Ombudsman