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Telford & Wrekin Council (21 005 350)

Category : Planning > Building control

Decision : Not upheld

Decision date : 07 Apr 2022

The Ombudsman's final decision:

Summary: Mrs C and Ms D complained the Council failed to take enforcement action against a business whose operations were affecting their enjoyment of their home. We have not found fault with the Council’s investigation of Mrs C and Ms D’s concerns.

The complaint

  1. Mrs C and Ms D complained the Council failed to take enforcement action against a business whose operations were affecting their enjoyment of their home. They also complained the Council did not consider the evidence they collected.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. I considered:
    • Mrs C and Ms D’s complaint and the information they provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines; and
    • the Council’s policies and procedures.
  2. Mrs C, Ms D and the Council commented on two draft decisions. I considered their comments before making my final decision.

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What I found

  1. This section includes key events in this case and does not cover everything that happened.
  2. Mrs C and Ms D live together. In January 2020, a new owner took over a car repair garage opposite their property. They complained the owner did not have planning permission to use the site as a car repair garage. They also raised concerns with the Council about its operations. These included the garage:
    • Breaking cars down for scrap.
    • Emitting noise, fumes, and light pollution.
    • Working in the evenings and at weekends.
    • Having a damaged roof that contained asbestos.
    • Causing flooding on the road.
    • Spilling oil and diesel into the drains.
    • Parking cars in front of the garage on the road.
  3. Mrs C and Ms D said the use of the car repair garage negatively impacted their sleep, enjoyment of their home, property value, and physical and mental health.
  4. I will consider each matter Mrs C and Ms D raised about the car repair garage in turn.

Planning and enforcement

  1. Planning permission is only needed if the work being carried out meets the statutory definition of ‘development’ which is set out in section 55 of the Town and Country Planning Act 1990. The categories of work that do not amount to ‘development’ include a change in the primary use of land or buildings, where the before and after use falls within the same use class. Class B2 is for general industrial, used for industrial process (excluding incineration purposes, chemical treatment or landfill or hazardous waste).
  2. A breach of planning control is defined in s.171A of the Town and Country Planning Act 1990 (the Act) as:
    • 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.
  3. If the council decides there is a breach of planning control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
  4. Enforcement action is discretionary, and councils should act proportionately in responding to suspected breaches of planning control. (Ministry of Housing, Communities & Local Government, 2019, National Planning Policy Framework) Councils may decide to take informal action, formal action, or no action at all.
  5. In most cases, development becomes immune from enforcement if no action is taken:
    • within 4 years of substantial completion for a breach of planning control consisting of operational development;
    • within 4 years for an unauthorised change of use to a single dwellinghouse;
    • within 10 years for any other breach of planning control (essentially other changes of use). (s.171B of the Town and Country Planning Act 1990)

Planning permission

  1. The Council considered whether the owner needed planning permission to use the site as a car repair garage.
  2. The Council found the site had planning permission for a bus/ coach depot. A bus/ coach depot is a category B2 use. A car repair garage is also category B2 use. Changing the use of the site from one category B2 use to another does not amount to development. Therefore, the owner did not need planning permission to change the use of the site from a bus/ coach depot to a car repair garage.
  3. In addition, it found the site had been operating as a car repair garage for longer than 10 years and as such would be exempt from enforcement action.
  4. Changing use between operations in the same category does not need planning permission. Therefore, planning permission was not needed to change the use of the site from a bus/ coach depot to a car repair garage as both come under category B2. In addition, as the site had been operating as a garage for longer than 10 years, it was immune from enforcement action. The Council explained this to Mrs C and Ms D. There was no fault with how the Council decided the site did not need planning permission to operate as a car repair garage.
  5. Mrs C and Ms D complained about the trading hours of the car repair garage. The Council advised as the car repair garage did not need planning permission, there were no limits on its trading hours.

Planning enforcement

  1. Planning officers made scheduled and unscheduled site visits to the car repair garage to investigate whether it was being used for this purpose. It took pictures of the site and spoke to its owner. It spoke to Mrs C and reviewed the evidence she provided. The Council considered all the evidence and decided the site was operating within the parameters of its use as a car repair garage. It found no evidence it was being used as a breakers yard. The Council decided the car repair garage had not breached planning permission for category B2 use.
  2. The Council investigated whether the site was being used as a car repair garage. It found the use of the site was consistent with that of a car repair garage and therefore no enforcement action was needed. The Council updated Mrs C and Ms D about its findings. There was no fault with how the Council made this decision.

Statutory nuisance

  1. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise and fumes can be statutory nuisances.
  2. To be considered a statutory nuisance, they must:
    • unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or
    • injure health or be likely to injure health.
  3. Under the Act, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
  4. There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The Council should consider the type, duration, intensity and location of a nuisance when deciding if it is a statutory nuisance.
  5. If the Council considers the nuisance amount to a statutory nuisance it must serve an abatement notice. If the recipient of the abatement notice contravenes or fails to comply with the notice, they may be guilty of a summary only offence.
  6. Under Section 82 of the Environmental Protection Act 1990 an individual can make a formal complaint to the Magistrates Court. If the Court is satisfied there is a statutory nuisance, it may make an order requiring the nuisance to stop or prohibit its reoccurrence.

Statutory nuisance: light pollution

  1. In 2020, Mrs C told the Council light from the car repair garage was keeping her awake. The Council spoke to the owner of the garage who advised he had four motion activated lights. Environmental health officers asked Mrs C for evidence of the light nuisance. Mrs C said the issue had been resolved and the Council closed the case.
  2. The Council investigated Mrs C’s concerns about the car repair garage causing light pollution and kept Mrs C updated about its actions. It considered the evidence from Mrs C’s diary sheets and its site visit and decided the light emitted from the garage was a statutory nuisance. It took suitable action and issued an abatement notice. The garage altered its lighting. The Council reassessed the garages lights and decided they were no longer a statutory nuisance. This was a decision the Council was entitled to make. It took account of the evidence it collected, and Mrs C provided when it made this decision. I found no fault in the way it made its decision, and therefore I cannot question its merits.

Statutory nuisance: air pollution

  1. Mrs C told the Council they were concerned about fumes emitted by the garage. Ms D said these fumes were emitted by the garages spray booth.
  2. The Council undertook a site visit and spoke to the owner of the garage. It decided there was a statutory nuisance. It issued an abatement notice to the owner of the garage for the spray booth. The notice required the garage owner to complete an assessment of the spray booth and take action to ensure it was working efficiently. The Council undertook odour monitoring and decided not to prevent the garage using the spray booth. The Council reviewed the actions taken by the garage and decided these met the requirements of the notice.
  3. The Council took enforcement action against the garage. It reviewed the actions the garage took in response to the abatement notice and decided the requirements of the notice had been met. I found no fault in the way it made its decision, and therefore I cannot question its merits.

Statutory nuisance: noise nuisance

  1. Mrs C and Ms D told the Council they wanted to make a noise complaint about the garage. The Council asked them to complete diary sheets or use its noise app. Ms D submitted noise app recordings. The Council reviewed these and decided the noise was not a statutory nuisance. It explained the sound of sanding, drilling, and spraying was audible but as the recordings were taken between 8am and 6pm, the noise was considered reasonable. The Council was entitled to make this decision. I found no fault in the way it made its decision, and therefore I cannot question its merits.
  2. The Council said it would only investigate further if the noise occurred at unreasonable times of the day. A statutory nuisance can occur within standard working hours and an investigation should consider the type, duration, intensity and location of a nuisance. Therefore, the Council should consider a noise nuisance complaint regardless of the time the noise occurs. The advice the Council gave Mrs C and Ms D was wrong. However, this did not cause Mrs C and Ms D injustice because the Council investigated their noise complaint. In response to my draft decision, the Council agreed it could have explained statutory nuisances better in its stage two complaint response but demonstrated it gave Mrs C and Ms D the correct information during its statutory nuisance investigations.

Dangerous buildings and structures

  1. Councils have powers to deal with dangerous buildings under the Building Act 1984. Councils may take action to protect the public if it considers a building or structure in its area is unsafe. Councils may order works to improve defective, dangerous or dilapidated buildings or structures. If the building owner does not comply with the order, the Council may carry out the works and charge for its costs.
  2. The Health and Safety Executive (HSE) is Britain’s national regulator for workplace health and safety. It prevents work-related death, injury and ill health. It provides advice about how to safely carry out work involving asbestos.

Garage roof

  1. Mrs C raised concerns with the Council about the condition of the garage roof. Environmental health officers visited the site and inspected the roof. They found the roof did not show signs of deterioration. They decided the asbestos in the roof was unlikely to pose an increased risk to people in the area.
  2. The Council sent photographs of the roof to the Health and Safety Executive for a second opinion. The Health and Safety Executive confirmed, “The risk to the public is minimal.”
  3. The Council assessed the garages roof in response to Mrs C’s concerns. It assessed the roof and used its professional judgement to decide it was not in disrepair. The Council told Mrs C its findings. I found no fault with how the Council made this decision, and therefore I cannot question its merits.

Drainage

Flooding

  1. The garage is on higher ground than Mrs C’s property and has a steep driveway. Mrs C complained water flowed from the garage on to her driveway when it rained because the building did not have any guttering.
  2. The Council investigated and found the garage had no rainwater pipes. The Council contacted the owner of the garage. The garage owner told the Council he would reinstate the guttering and downpipes and advised the Council the work would be completed in August 2021. The Council visited the site in September 2021 and confirmed the guttering had been replaced.
  3. After flooding in June and August 2020, the Council undertook a capital drainage scheme to increase the resilience of the highway drainage system. This scheme included the road where Mrs C and the garage are situated. The scheme was to increase the capacity of the drainage system to lessen the amount of rainwater that ran off surrounding land onto Mrs C’s driveway. The Council has completed most of the works. The outstanding work is for the installation of a new linear drainage channel to replace a defected concrete channel. The Council commissioned contractors to do this work in September 2021.
  4. The Council acted in response to Mrs C’s concerns about flooding. It advised the garage to reinstate guttering and downpipes which it did. It also included the road in its capital drainage scheme. The Council kept Mrs C updated. I found no fault with the actions the Council took to resolve this matter.

Highways

  1. Councils that are highway authorities can place temporary, experimental or permanent restrictions on traffic within their areas by way of a Traffic Regulation Order (TRO). (Road Traffic Regulation Act 1984) They cover temporary road closures, speed limits, double and single yellow line parking restrictions, on and off road pay and display parking, weight restrictions, one-way streets and other traffic related restrictions.

Oil spills

  1. Mrs C contacted the Council and reported an oil spill from the car repair garage. She was worried oil could be washed on to her driveway or down the drains. The Council sent its street cleaning team to clean up the oil spill. The Council reported her concerns about oil spilling into the drains with the Environment Agency. The Agency said it would not take any action unless it was flowing into a stream or river. The Council updated Mrs C.
  2. The Council took action to resolve the problem and there was no fault with its actions.

On road parking

  1. Mrs C complained about the car repair garage parking cars on the road. She said they blocked the road and she found it difficult to enter and exit her driveway. The traffic management team developed a draft scheme to address problems with on road parking. The scheme was shared with residents, including Mrs C, as part of an informal consultation process. Following the consultation, the Council decided to proceed with an experimental Traffic Regulation Order (TRO) for double lines.
  2. The Council took action to address the problem Mrs C raised with on road parking by introducing an experimental Traffic Regulation Order (TRO) for double lines to prevent on road parking. There was no fault with its actions.

Conclusion

  1. The Council responded appropriately to the concerns Mrs C raised about the car repair garage. It worked with the garage to resolve concerns, took enforcement action when required, and undertook works to address drainage and highway issues. I found no fault with the Council’s investigation into Mrs C and Ms D’s concerns or the actions it took in response.
  2. I found the Council gave Mrs C and Ms D incorrect information in its stage two complaint response about when it would investigate a noise nuisance. This did not cause Mrs C and Ms D injustice as the Council investigated their reports and gave them the correct information during its statutory nuisance investigations. While I consider the comment in the Council’s stage two complaint response was a shortcoming by the Council, I do not consider it was so serious as to make a formal finding of fault.

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Final decision 

  1. I have completed my investigation and do not uphold Mrs C and Ms D’s complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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