Summary: The complainant says the Council is at fault in its handling of her reports of breaches of planning control and noise nuisance from a business near her home. The Ombudsman has found no evidence of fault by the Council and therefore he has ended his consideration of this complaint.

The complaint

1. The complainant, who I shall call Ms X, says the Council is at fault in its handling of her reports of breaches of planning permission at a site near her home.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. As part of my investigation I discussed the complaint with Ms X and considered information she provided. I asked the Council for background papers including details of its consideration of Ms X’s concerns. I set out my initial views on the complaint in a draft decision statement and I considered Ms X’s comments in response.

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What I found

6. Councils must look into complaints about noise that could be a statutory nuisance covered by the Environmental Protection Act 1990. For noise to be a statutory nuisance it must either:

• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• injure or be likely to injure the health of an average person.

7. Statutory nuisance must be witnessed by an Environmental Health Officer who will come to an independent judgement. The process of determining if noise constitutes a nuisance is subjective. The level of noise, its length, timing and location may be taken into consideration in deciding whether a statutory nuisance has actually occurred.
8. Members of the public can take their own action against noise nuisance by complaining to a magistrates’ court under Section 82 of the Environmental Protection Act 1990.

Planning enforcement

9. Councils can take enforcement action if they find planning rules have been breached but do not have to in every case. 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)

Background

10. Ms X lives with her family including her brother. Their home is located near some industrial units.
11. In September 2017 the Council granted planning permission for a gym to operate from one of the industrial units.
12. The approval was subject to conditions which included restricting the operating hours of the gym and requiring a roller shutter door to be closed between 8pm and 8am. It also said that it must implement the noise management plan submitted as part of the application and review it after 18 months.
13. In April and May 2018 Ms X made complaints about noise from the gym. The Council investigated and installed noise recording equipment at her home. It found no evidence of a statutory noise nuisance.
14. Ms X continued to report noise nuisance from the gym. She also reported other concerns about the gym including the hours of operation and that the roller shutter doors were being left open after 8:30pm.
15. The Council met with Ms X in July to discuss her concerns. It said it would speak with the gym owner about her concerns. It also asked Ms X to record details of when the gym was operating outside the agreed hours and when the roller shutter doors were left open after 8:30pm.
16. Reports from Ms X continued. The Council investigated by visiting the gym early in the morning and in the evening. It found evidence the gym was opening earlier than allowed. However, no noise was witnessed and the shutters were down. Officers concluded no harm was being caused by the breach and so it would not be expedient to taken enforcement action. It found no evidence of any other breaches.
17. Unhappy with the Council’s actions, Ms X complained. The Council reiterated its view that there were no grounds to take enforcement action and no evidence of a statutory noise nuisance.
18. In February 2019 Ms X made fresh complaints about noise from the gym. The Council undertook additional monitoring but found no evidence of a statutory noise nuisance or breaches of planning conditions.
19. Ms X remains unhappy and approached the Ombudsman. She explained the noise from the gym is having a profound effect on her brother’s mental health and she has given up work to help care for him.
20. In response to my investigation the Council wrote to the gym owner asking him to undertake a review of the noise management plan. The owner did so and told the Council he considered the plan to be in effect and that he will continue with it going forward.
21. The Council says it is happy with the gym’s proposed actions. This is because it has not received any complaints from other residents and its investigations have not found evidence of a statutory nuisance.

Analysis

The Council’s handling of noise nuisance

22. I do not find the Council at fault in its handling of this matter. It has responded to Ms X’s reports by installing noise monitoring equipment and carrying out visits to the site. As it found no evidence of a statutory noise nuisance, the Council could not take any action.
23. I understand Ms X thinks the noise monitoring equipment does not work because she has recorded higher levels of noise on her phone. It is unclear if the noise recordings taken by Ms X were done at the same time as the recording equipment was in place. Nevertheless, I note that Ms X has had noise recording equipment in her home on four occasions (three prior to her complaints of April 2018) since the gym began operating and that no statutory noise nuisance has been found. It is unlikely the recording equipment was not working on all four occasions.
24. I note that Ms X says the noise is having a detrimental impact on her brother’s mental health. However this does not alter the fact that the Council has found no evidence of a statutory noise nuisance. In such a case a person can take their own action by complaining to a magistrates’ court and I note the Council provided Ms X with information on how to do this.

The Council’s handling of breaches of planning conditions

25. I do not find fault by the Council in its handling of this matter. The Council has visited the gym on many occasions to monitor compliance with the conditions. It found no evidence that the gym was leaving the roller shutter doors open between 8pm and 8am.
26. I note the Council did find evidence the gym was opening earlier than specified in the conditions. However, it did not witness any noise or that the roller shutter doors were open. For this reason, it did not consider the breach was causing any harm and so it was not expedient to take any enforcement action. This is a decision the Council is entitled to take as enforcement is discretionary.
27. The Council has reviewed the noise management plan as the conditions attached to the planning permission said it should. It has also explained its reasons for concluding the noise management plan should stay in place with no alteration. This is a decision the Council is entitled to make and I have found no evidence of fault in how it has done so.

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Final decision

28. I have ended my investigation of this complaint as I have not found any evidence of fault by the Council

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman