Summary: Mr X complained the Council failed to protect him and other residents from noise nuisance after it approved a planning application for a business on land near his home. We decided not to continue our investigation at this time, because enforcement action is ongoing. Mr X may come back to the Ombudsman if he remains unhappy at the end of the current enforcement action, including any appeal or related proceedings.

The complaint

1. Mr X complained the Council failed to protect him and other residents from noise nuisance after it approved a planning application for a business on land near his home.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• we cannot show that any potential fault caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I read the complaint, visited Mr X and discussed it with him. I read the Council’s response to the complaint and considered documents from its files, including planning and environmental health documents.
4. I gave Mr X and the Council now have an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

5. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
6. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
7. 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.

Environmental health law and functions

8. Councils have statutory powers to enforce environmental protection measures in their areas. They can control nuisance caused by pollution, from things like noise, dust, smoke and odour by issuing abatement notices.
9. Environmental health officers may also provide advice to other departments, including advice on planning applications on what impact a development or land use might have on the environment. They may recommend planning conditions to protect public amenity.

Background

10. The Council approved a planning application for a business to operate on a site close to Mr X’s home.
11. Because of the nature of the business, it was likely to create noise that would disturb residents living nearby. The Council approved the application subject to planning conditions to control noise, from use both within and outside buildings.
12. The business began to operate, and the Council received complaints from Mr X and others about noise from the site. The Council did not take enforcement action to enforce the planning conditions and referred the matter to environmental health officers.
13. Environmental health found evidence of a noise nuisance and served an abatement notice. Recently, the business sought more time to comply with the terms of the notice and the Council signed a consent order to allow until the end of June this year.

My findings

14. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
15. Before we begin or continue our investigations, we consider two, linked questions, as follows.
• Is it likely there was fault?
• Is it likely we can show that any fault caused a significant injustice?
16. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
17. I should not continue my investigation at this time because the enforcement action taken by environmental health is ongoing. It is possible there might be further proceedings, or planning applications, which could in turn lead to further proceedings and/or appeals. Until these processes reach a conclusion, I cannot assess any potential injustice that may have been caused to Mr X or others.
18. Once the enforcement action and any subsequent proceedings have run their course, Mr X may bring his complaint back to the Ombudsman. We may then consider an investigation into the roles of both the planning and environmental health authorities.

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Final decision

19. I decided to not continue my investigation at this time because enforcement action is ongoing. Mr X may come back to us with his complaint if he remains unhappy at the end of the current enforcement action and any subsequent appeal or proceedings directly related to this case.

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Investigator's decision on behalf of the Ombudsman