Summary: There was no fault by the Council in a complaint about the Council’s handling of planning enforcement and noise nuisance complaints Ms X made about the operation of a car wash.

The complaint

1. Ms X complains about the Council’s handling of planning enforcement and noise nuisance complaints she made about the operation of a car wash. Ms X says:
• The Council failed to notice an error in the Planning Inspector’s decision which would have prevented the operation of a nearby car wash on Sundays and Bank Holidays.
• The Council allowed the car wash operator to breach planning conditions time and again and only once served a breach of condition notice.
• The Council has not measured the increase in noise through the operation of the car wash despite receiving a report from residents which states the noise is a statutory nuisance.
• The Council failed to respond to freedom of information requests on its communications with the car wash operator.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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)
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. I reviewed the complaint and background information provided to the Ombudsman by Ms X and the Council. I discussed matters with Ms X. I made enquiries of the Council and considered the information it held on the planning enforcement case. I sent a draft decision statement to Ms X and the Council and invited their comments on it.

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What I found

The law and statutory nuisance

7. The Environmental Protection Act 1990 states councils must take such steps as are reasonably practicable to investigate complaints about noise that could be a “statutory nuisance”. The noise complained about might be loud music, barking dogs or noise from industrial, trade or business premises.
8. 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 premises; or
• injure health or be likely to injure health.
9. An environmental health officer will come to an independent judgement on whether there is a statutory nuisance. The process of determining what level of noise constitutes a nuisance can be quite subjective. Officers may take account of factors such as the level of noise, its length, timing, location and the view of the average person in deciding whether a statutory nuisance has occurred.
10. If an officer decides that a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
11. It is also open to members of the public to bring their own case to the Magistrates Court and ask it to serve an

The law and planning enforcement

12. Local planning authorities have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative areas.
13. There are a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way.
14. Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations. This includes a local enforcement plan, where it is not part of the development plan.
15. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 58.
16. Paragraph 58 of the National Planning Policy Framework says:

“Effective enforcement action is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate”.

17. The range of enforcement options available to local planning authorities to tackle possible breaches of planning control in a proportionate way range from no formal action to service of an enforcement notice.

Chronology of planning enforcement

18. Ms X and other residents complained about breaches of planning control at the site of a local car wash in the summer of 2017. The Council had recently determined a planning application submitted by the owner/operator of the car wash. The Council granted planning permission for the car wash but restricted its operational hours to 8am – 6pm on Monday to Saturday and 10am -12pm on Sunday and bank holidays by condition.
19. The owner/operator of the car wash appealed the refusal of planning permission.
20. In December 2017, the Planning Inspectorate determined the appeal. The Planning Inspector allowed the appeal but intended to vary the operational hours of the car wash in the decision statement. The Inspector decided to restrict the operational hours by removing the opening hours on Sunday and on bank holidays.
21. However, the Planning Inspector’s decision notice did not remove the condition. Instead it removed operational hours on bank holidays. This was unnoticed by the Planning Inspectorate. The Council’s officers also did not notice the error when the decision papers were sent to the Council.
22. The case officer handling the enforcement complaint contacted the owner of the car wash in January 2018 to advise him of the new condition restricting operations to Monday – Saturday only.
23. The case officer visited the site on a Sunday in January 2018 and noted the car wash was not being used. The officer received an email from one of the complaining residents in mid-February that confirmed the car wash had ceased operating on Sundays. The case officer closed the enforcement file.
24. The Council then received new complaints of the car wash operating on a Sunday and so the case officer contacted the operator again warning him of the appeal decision. The officer explained the Council was unlikely to support a planning application to extend the operating hours to Sundays.
25. One of Ms X’s neighbours contacted the Council in April 2018 because the car wash had been operating over the Easter weekend.
26. The case officer explained that she had advised the owner of the car wash that a planning application to extend its opening hours to include Sundays was unlikely to be granted permission. She told the resident as well as a local councillor that her advice did not extend to bank holidays. The officer then advised them of the error made by the Planning Inspectorate in its decision. The officer said she would seek legal advice on any steps the Council could take on the error and enforcement action.
27. Ms X wrote to the case officer to express her concern the officer told the car wash owner that it could open on bank holidays. She said the councillor had seen an email from the case officer to the car wash owner saying so.
28. The case officer contacted the Planning Inspectorate to see if the condition could be amended to reflect the Inspector’s original intention. She also sought internal legal advice. The legal advice was that the condition did not restrict the operation of the car wash on bank holidays.
29. The Planning Inspectorate then confirmed that there was an error but that it was now outside the 42 day window for amendments and so nothing could now be done to correct the error.
30. Residents continued to report the car wash was operating on Sundays and over the May bank holidays. They also complained about work done by the car wash outside operating hours. The case officer advised the car wash owner as well as residents that she would seek legal advice on service of a breach of condition notice.
31. The car wash owner applied for a variation of the condition on operating hours.
32. The Council served a breach of condition notice on the owner of the car wash in October 2018. This involved breaches of the condition on weekday openings. At the end of October, it refused the owner’s variation application.
33. Residents continued to report Sunday openings in November 2018. Solicitors acting for Ms X also contacted the Council. The case officer told Ms X the Council would consider prosecuting the owner of the car wash but the Council had to gather evidence and then consider whether it was in the public interest to prosecute. The car wash owner had again sought to vary the condition on working hours. However, the case officer asked all residents to provide written details of what they had witnessed and indicate their willingness to attend court.
34. The case officer left the Council in December 2018. A new enforcement officer visited the car wash site on a Sunday in January 2019 and observed the car wash in operation. The officer discussed the matter with the owner of the car wash including the possibility of prosecution. The owner assured the officer the car wash would close on Sundays from that point.
35. The officer made a follow up visit. There were no further Sunday openings and so the enforcement case was closed. The case officer received complaints about noise and referred the matter to the environmental health team.

Chronology of environmental health

36. The environmental health team received a complaint about noise from Ms X in May 2017. Officers sent a log sheet for Ms X to compile a noise record. They also contacted the car wash to advise it of the complaint.
37. Ms X provided log sheets a month later. The case officer asked Ms X for a date when she could visit her home to witness the noise. They eventually settled for a date in July 2017.
38. The case officer visited Ms X’s home but says she did not witness any noise nuisance.
39. Ms X contacted the case officer in August 2017. She said her solicitor had asked her to provide information about the noise levels and so she asked whether the Council had taken any noise readings. The case officer told Ms X no readings had been taken by the Council. The officer told Ms X the noise was in keeping with the area. She informed Ms X she could take her own action under the Environmental Protection Act 1990.
40. There was continued correspondence between Ms X and the case officer. In mid-September Ms X queried why the officer had not visited the site on a Saturday which she said was the day when the car wash was at its busiest.
41. The case officer explained the nature of the noise did not increase on a Saturday only its duration and so a Saturday visit was not strictly necessary. However, the officer offered to visit on a Saturday.
42. Ms X continued to challenge the officer’s findings over September and October 2017. Another environmental health officer visited the site in November 2017. The officer did not observe a statutory nuisance. The case officer then wrote to Ms X to confirm closure of the complaint. The officer advised Ms X she could complain again if the noise increased in the next year.
43. The car wash operator took action to insulate a vacuum cleaner in November 2017.
44. Ms X contacted the case officer in February 2018 to complain about the settings of the jet washer used at the car wash. The case officer contacted the car wash operator who confirmed the jet wash was being used at its lowest power setting. The case officer then contacted Ms X with this information. A month later the case officer closed the case.
45. In April 2018, Ms X asked the Council to visit the site to assess the noise levels. The case officer was reluctant to visit the site again. The officer said planning conditions restricting the operating hours were now in place and the car wash operator had agreed to attenuate the sound from the vacuum. So, the officer did not consider further site visits would be productive.
46. However, the case officer and another environmental health officer visited the site in May 2018. The officers found the vacuums were still insulated and enclosed and the jet washer was on its lowest setting.
47. Ms X contacted the case officer in July to say the lid on the acoustic enclosure for the vacuum had been left open. The case officer contacted the operator to ask him to ensure the enclosures were always closed.
48. Later in the same month, Ms X contacted the case officer to say the enclosures had not been used for four days and so the situation was impossible. She said her solicitor had organised a noise assessment and she would send the noise report to the Council.
49. Ms X’s solicitor sent the report to the case officer in September 2018. The case officer asked the solicitor for a copy of the raw data.
50. The case officer assessed the report and wrote to Ms X’s solicitor with her findings in November 2018. The officer remained of the view a statutory nuisance did not exist.
51. Ms X made further reports of noise in 2019. The Council is presently investigating the reports but has not established a noise nuisance to this point.

Analysis

The Council failed to notice an error in the Planning Inspector’s decision which would have prevented the operation of a nearby car wash on Sundays and Bank Holidays

52. The Council accepts its officers did not notice the error made by the Planning Inspector when the decision notice was sent to the Council. But I do not consider this failing was significant enough for me to make a finding of fault by the Council.
53. This is because the responsibility for the error still rests with the Planning Inspectorate and not the Council. It would clearly have been better had officers read through the documents thoroughly. But a thorough reading presupposes that officers should expect errors by the Planning Inspector and so take on the role of scrutiny of the Inspector’s decisions for errors. I do not consider there was a reasonable expectation of an error by the Planning Inspector and so do not find fault by the Council in this matter.

The Council allowed the car wash operator to breach planning conditions time and again and only once served a breach of condition notice

54. I am satisfied, from reading the documents in the case file, that the Council’s approach to enforcement action was reasonable and proportionate.
55. I accept the matter went on for about 18 months from the summer of 2017 to January 2019. I have considered whether there was unreasonable delay by the Council in taking enforcement action.
56. On the whole, I do not find there was unreasonable delay by the Council. There is a period between May 2018 when the case officer told residents the Council would consider service of a breach of condition notice and service of the notice in October 2018 which could be considered a period of inaction. However, I am satisfied officers gathered evidence of breaches in this period while awaiting Counsel’s advice on enforcement options. I accept the Council took time to serve the breach of condition notice but the time taken was not unreasonable.
57. I do not find the Council allowed the car wash operator to breach the operational conditions time and again. Government guidance is clear local planning authorities must act proportionately in response to breaches of planning control. So, it was not proportionate for the Council to take enforcement action each time residents reported a breach of planning control.

The Council has not measured the increase in noise through the operation of the car wash despite receiving a report from residents which states the noise is a statutory nuisance

58. There is no statutory requirement that local authorities use sound equipment or otherwise measure noise levels in order to make a decision on the existence of a statutory nuisance.
59. It is for a council’s environmental health officers to judge whether a statutory nuisance exists. In doing so, case law has established that officers may take account of factors such as the level of noise, its length, timing, location and the view of the average person in deciding whether a statutory nuisance has occurred. In this case, I am satisfied the case officer took account of these factors when assessing the log sheets provided by Ms X as well as through site visits.
60. The case officer provided her assessment of the noise report commissioned by Ms X’s solicitors. It is not for this service to now decide whether the officer’s judgement was right or wrong but to assess whether there was fault in the approach taken by the officer. I do not find fault with the officer’s approach.

Final decision

61. There was no fault by the Council in the matters raised here and so I have closed the complaint.

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Parts of the complaint that I did not investigate

62. I did not investigate Ms X’s complaint that the Council failed to respond to freedom of information requests. This is because complaints about information requests should properly be considered by the Information Commissioner which is the statutory body set up to consider such matters.

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Investigator's decision on behalf of the Ombudsman