Summary: We find fault in the Council’s delay in starting a planning enforcement investigation on concerns raised by the complainant about a breach of working hours. However, the injustice of this was limited and the Council’s apology was a suitable remedy. The Council otherwise acted without fault in its subsequent enforcement actions and in its environmental health investigations into possible noise nuisance from an industrial premises.

The complaint

1. Mr X complained about the actions of the Council over planning enforcement against companies on a nearby industrial estate, specifically Firm A, Firm B and a skip firm.
2. Specifically, Mr X complained the Council failed to properly acknowledge and enforce pre-existing conditions limiting hours of operation of these companies and related noise, but especially Firm A (and its predecessors) until 2018, after he raised formal complaints in 2017 about these matters. He says the Council’s initial denial of any planning conditions on the companies unduly prolonged the process of investigation and delayed action against the breaches of planning control that it later confirmed.
3. Mr X further complained the Council allowed Firm A to adopt longer working hours from a more recent planning permission before it had completed the necessary building work to enclose the machinery, to limit the noise impacts.
4. Mr X says the failure to control unacceptable out-of-hours noise from these operations has caused him unnecessary stress through disrupted sleep, and through pursuing environmental health complaints out-of-hours to evidence the noise nuisance.

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Parts of the complaint that I did not investigate

5. I have not investigated the complaints relating the skip firm as they are controlled by the Environment Agency and so are outside the Local Government and Social Care Ombudsman’s jurisdiction.

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The Ombudsman’s role and powers

6. 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

7. I have spoken with Mr X and considered information from him
8. I have considered comments and information provided by the Council, including planning enforcement records, planning application records, environmental health records and its relevant document retention policies.
9. I have considered:
• the National Planning Policy Framework (NPPF) 2012, and as updated in 2018; and
• the Environmental Protection Act 1990.
10. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

11. In 2017 Mr X complained to the Council about noise disturbance, especially at night, from operations of some business on a nearby industrial estate.
12. The Council responded that there were no planning controls on the hours of operation on the specific firms complained about.
13. Mr X looked into these issues and complained further to the Council that Firm A had specific working hours controlled by planning conditions going back many years.
14. The Council investigated further. It accepted Firm A did have specific working hours controls from previous planning applications. It provided out of hours Environmental Health assessments of the noise Mr X reported but did not consider it amounted to a statutory noise nuisance.
15. Mr X provided further reports of noise to the Council. In 2018 Firm A made a planning application to extend its working hours to 24 hours a day and seven days a week (24/7) on some aspects of its operation and to build a noise reducing building for one part of its operations, which the Council approved with conditions. Mr X and other residents objected to the application.
16. Mr X made a formal complaint about the actions of the Council over both its planning and environmental health approach to the noise from the industrial estate. The Council responded through its complaints process and apologised for the initial error in its response about working hours controls.
17. Mr X remained dissatisfied and brought his concerns to the Ombudsman.

The legal background

18. The National planning Policy Framework (NPPF) (2012) 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.” This is largely unchanged in the 2018 update of the NPPF.
19. Councils rely on the public to report possible breaches of planning control. They have no duty to monitor developments to ensure compliance and do not have the resources in practice to do so. The duty is to investigate such reports; any subsequent action is at the Council’s discretion. The Ombudsman only looks at the process a council follows in deciding what to do.
20. The Environmental Protection Act 1990 at s79 sets out that noise emitted from any premises may be considered a statutory nuisance if it is prejudicial to health or a nuisance.
21. The Government guidance says “For the issue 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 premises;
• injure health or be likely to injure health.”
22. If the Council considers there is a statutory nuisance it must serve an abatement notice on the people responsible for the nuisance. For noise nuisances from premises, the notice can be delayed for up to 7 days while the council tries to get the person responsible to stop or restrict the noise.
23. Those served with an abatement notice can appeal to a magistrates court.
24. In certain cases, people who've used the best practicable means to stop or reduce a nuisance may be able to use this as:
• grounds for appeal against the abatement notice
• a defence, if prosecuted for not complying with the abatement notice.

What the Council did

25. Mr X first complained to the Council in August 2017 about noise from the industrial estate, and specifically Firm A, causing night-time disturbance.
26. The Council said that the industrial estate was able to operate 24 hours a day and seven days a week (24/7).
27. Mr X complained again in November 2017. He disputed the Council’s previous comments and said other local residents had complained before about noise from the estate disturbing them at night.
28. The Council started an environmental health investigation into possible statutory nuisance. It offered Mr X out-of-hours visits to witness the noise Mr X described at his home. The Council again stated Firm A did not have hours of operation restrictions set by its planning permission.
29. The Council started a planning enforcement investigation on Firm A in December 2017, from information passed to it by the Environmental Health team.
30. It continued its environmental health investigation into noise caused by Firm B and identified a statutory nuisance in January 2018. Firm B modified its working practices in response to the Council’s approach, which removed the issue. The Council also referred concerns about the skip firm to the County Council, which had responsibility for monitoring its hours of work.
31. The Council issued Planning Contravention Notices to Firm A to get detailed information about the hours of work, operational details and use of units on the estate. This is a usual enforcement process. The Council was in regular communication with Mr X during this time, as he made further noise complaints about early morning and late-night noise disturbance. Firm A throughout co-operated with the Council in its investigations.
32. The Council wrote to Mr X in February 2018 explaining what actions it was taking. It had identified a breach of working hours for Firm A in one part of its operation.
33. From this investigation Firm A put in an application to regularise an existing 24 hour operation. This was an appropriate way for Firm A to regularise a breach of planning control.
34. Firm A also commissioned a Noise Assessment report on their sites, which formed part of the planning application. This noted that the nature of Firm A’s operation in steel fabrication caused periodic loud noise events and that there was a need to mitigate noise which travelled towards the residential areas where Mr X lived.
35. As part of the application Firm A also applied for permission to build a new extension on part of its site with acoustic cladding, to provide improved noise mitigation.
36. The Council considered the application, including objections from local residents and the Parish Council and decided to approve it. It placed a number of conditions on the approval, one of which was that the new construction to provide noise mitigation should be completed within one year of the planning permission. All noise mitigation measures approved would be maintained in perpetuity and the management of Firm A would carry out regular noise checks, to be available to the Council to inspect.
37. Firm A has since applied to make changes to some of the conditions, which the Council has taken through the relevant planning processes.
38. The Council investigated all Mr X’s concerns about noise nuisance through its Environmental Health team. It placed the industrial estate on its list of out of hours calls and responded to Mr X’s calls for an immediate out of hours visit on several occasions. Duty Officers visited Mr X’s home and listened from his bedroom, and also visited the industrial estate with him and on other occasions.
39. The Council considered all the evidence provided by Mr X and its own information gathering on each occasion. However, it did not find that the noise Mr X complained about constituted a statutory nuisance under the Environmental Protection Act 1990.
40. The Council, through its planning and environmental health teams, worked with Firm A to address residents’ concerns. Firm A had direct meetings and correspondence with Mr X and other residents and took steps to mitigate noise levels and reduce specific night-time noise events.

Analysis

41. Although Mr X bought his property close to an established light industrial estate, he was entitled to expect noise not to cause him disturbance, especially at night. The industrial estate had a previous history of complaints, but despite investigations the Council had not been able to confirm the noise events as statutory nuisance. This was in part because it had requested evidence from the complainants who had not provided diary records showing the nature and frequency of the noise. Therefore, the Council had not been able to pursue its investigations.
42. The Council has no duty to monitor the work or activities of businesses on the estate nor does it have the practical resources to do so. It therefore relies on public notification of noise concerns and then must investigate under environmental health provisions. It must also investigate complaints about possible breaches of planning control, such as working hours control.
43. The Council did not provide Mr X with an accurate response when he first complained in 2017. It said there were no working hours controls on Firm A, when there had been such conditions on a series of planning permissions since 1987. This caused a delay of about four months before the Council started a planning enforcement investigation. However, during this time the Council’s Environmental Health team were investigating Mr X’s concerns about noise nuisance.
44. The Council was at fault in the delay in starting its enforcement investigation and responding to Mr X as it did, but I do not consider this caused Mr X significant injustice. The Council was looking at the noise issues in another way through that period but I acknowledge Mr X pursued the enforcement aspect when he should not have had to.
45. The Council apologised to Mr X for its fault in its responses to his formal complaints. I consider this was a suitable remedy for the limited harm caused to him of that fault.
46. Once the Council investigated the alleged planning breaches it identified that Firm A was breaching the conditioned hours of work from previous planning permissions. It then had to reach a view on what action to take, a discretionary power.
47. In deciding what to do the Council had to balance the planning needs of the business and local employment against any harm to the amenity of local residents. It worked with Firm A to provide mitigation to the noise its working operations made, to reduce the impact on residents. This was a proportionate response in line with national planning requirements.
48. In early 2018 Firm A applied to regularise its working hours and to provide soundproofing for its worst noise activity. This was a legitimate way to regularise the breach of working hours and mitigate the noise from the company’s operations. It argued that its hours of work had extended to enable it to remain competitive in its market.
49. The planning application provided a formal opportunity for residents to express their views on the proposals, which they did, alongside the Parish Council. The Council properly considered those views, and a Noise Assessment commissioned by Firm A which made a number of recommendations to improve noise control in the medium and long term.
50. The Council reached the view that, with suitable mitigation measures Firm A could retain its longer hours of work apart from one specific aspect of its operation, which remained restricted. It acknowledged that there were some noise impacts on local residents but that environmental health investigations had not found them to constitute a statutory nuisance. The business and employment benefits in this case outweighed the harm to the amenity of residents. That was a decision the Council was entitled to reach through proper consideration of the application.
51. The Council placed a number of conditions on the approval. One was that the new soundproofed building should be constructed within 12 months. The 24/7 operation was already in place so it would not have been proportionate for the Council to require that to cease, pending the construction of the new building. Firm A had already put in place additional sound mitigation practices to reduce the noise from specific, loud aspects of its operation.
52. I do not find fault in the Council’s approach. There was no further undue delay in its actions; enforcement can take many months or longer to achieve an acceptable outcome. Firm A co-operated throughout, implemented changes and maintained a dialogue with Mr X and other residents.
53. The Council’s Environmental Health team were involved in the noise issues from 2017 and had investigated complaints about Firm B since 1995 and about Firm A since 2012. It had provided out of hours visits and asked complainants to provide additional evidence, as it was entitled to do. Complainants did not provide additional information and so the Council was unable to say it had enough evidence to confirm the noise complained about was a statutory nuisance and so take any formal action. An abatement notice would provide the recipient with a right of appeal which the Council would need to be able to defend with evidence.
54. When Mr X complained in 2017, the Council again provided out of hours visits, both planned and call-out. It visited Mr X’s home at night to assess the impact on him and also visited the industrial estate and Firm A, to assess the source of the noise.
55. Mr X provided the Council with regular reports of noise and additional photographic and video evidence of the activities of Firm A, taken on the industrial estate.
56. For the Council to decide whether noise is statutory nuisance it needs to assess the impact on the complainant where he lives, not at the source of the noise. So much of Mr X’s evidence was not relevant to a statutory nuisance assessment but was helpful for the planning enforcement team’s consideration of a breach of working hours.
57. I do not find fault in the way the Council responded to Mr X or carried out its environmental health investigations.
58. I accept Mr X and other residents may now be sensitive to noise they perceive as a nuisance to their daily lives, especially at night. The Council is monitoring the revised development and the conditions imposed on the planning permission but will always rely on the public notifying it of any further noise concerns. It has no duty to regularly ‘police’ the noise from the operations of Firm A or any other business operation on the industrial estate, unless it receives specific complaints which it must then investigate.
59. Mr X raised concerns about the Council’s records of complaints about the noise from Firm A and Firm B.
60. The Council has a record retention policy that says it will keep records of complaints on noise for 36 months. It will keep records of formal actions taken for 6 years.
61. The Council has provided me with evidence of its historical complaints about the noise from Firm A and Firm B in line with that policy. It did not take any formal action from those complaints. I am therefore satisfied its record keeping is satisfactory.

Findings

62. The Council was at fault in failing to start a planning enforcement investigation for four months in 2017, because it incorrectly stated there were no planning controls on working hours on Firm A. This caused Mr X limited harm for which the Council has apologised. I consider this a suitable remedy.
63. The Council otherwise acted without fault in its enforcement actions and without fault in its environmental health investigations into these matters.

Agreed action

64. I recommend the Council should provide the Ombudsman with evidence of the steps it has taken to ensure its Environmental Health Department do not overlook existing working hours and other relevant planning conditions on operations, when investigating complaints about noise nuisance and other such concerns it receives from the public.
65. The Council should provide evidence of these actions to the Ombudsman within three months of my final decision

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Final decision

66. The Council was at fault in failing to start a planning enforcement investigation for four months in 2017, because it incorrectly stated there were no planning controls on working hours on Firm A. This caused Mr X limited harm for which the Council has apologised. I consider this a suitable remedy.
67. The Council otherwise acted without fault in its enforcement actions and without fault in its environmental health investigations into these matters.
68. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman