Summary: Mr X complains about the actions of the Council since 2011 in respect of planning enforcement relating to development of the pub next door to him. He says the Council has failed to act. The Ombudsman found no evidence of fault in this case. The Council cannot take enforcement action for older parts of the development because of the time that has passed. Newer aspects remain under investigation, but the Council is entitled to consider it is not currently expedient to take formal enforcement action.

The complaint

1. Mr X complains about the actions of the Council since 2011 in respect of planning enforcement relating to development of the pub next door to him. He says the Council’s failure to take enforcement action means he has had to live with significant visual intrusion and noise nuisance from refrigeration units near his boundary.

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What I have investigated

2. I have investigated the Council’s actions since January 2018. I have outlined my reasons for excluding older events at the end of this decision statement.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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 spoke with Mr X, considered the complaint he made to the Ombudsman and read the documents he sent me in support of it. I wrote to the Council to make enquiries and reviewed the material it sent in response.
7. I have also seen information about the February 2018 planning decision which is available online on the Council’s website. I have also considered the National Planning Policy Framework and other government guidance on planning enforcement.
8. I shared a copy of my draft decision with Mr X and the Council and I invited them to comment on it.

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What I found

9. Mr X says he has lived next door to a pub for around 40 years. During that time, he has tried to reduce the impact of the pub on the quiet enjoyment of his home and garden. Mr X has engaged with various planning applications made by the pub during recent years but says there have often later been breaches of agreed conditions. The main issue is noise from plant machinery including outdoor refrigerator compressors.
10. As part of his complaint, Mr X points to a condition which the Council imposed on planning permission it granted in 2011 when the pub replaced some machinery. It says, “the approved scheme shall be carried out and fully operational before the first use of the development hereby approved and shall be maintained thereafter.” He believes the final few words give the Council the power to keep noise from the machinery within the limits agreed at that time forever.
11. Mr X also produced a copy of a letter from the then planning officer to the pub when the Council discharged the condition. It says, “…I remind you that we will expect these units to be permanently maintained hereafter in accordance with the requirements of [the condition]”.
12. The Council has told Mr X it cannot take planning enforcement action about the machinery in question. This is because it believes there is no enforceable planning condition covering its use. It says the condition Mr X quotes from is a pre-commencement condition and the development was already in place before it was discharged.
13. Enforcement action can normally be taken within 10 years of a breach of a planning condition happening. However, in the absence of a breach of a specific planning condition the time limit for enforcement action against a development is four years. It is the latter limit the Council is applying in this case.
14. The government has published guidance on planning enforcement. It explains the law in this area by saying, “in most cases, development becomes immune from enforcement if no action is taken within four years of substantial completion for a breach of planning control consisting of operational development”. It goes on to explain the time limit does not apply where the property owner hides a breach or where it has already taken enforcement action for the same breach within the last four years.
15. The Council says even though it cannot take planning enforcement action about the older noisy machinery, it is still able to examine whether it is causing a statutory nuisance. Its environmental health team oversee such investigations.
16. The pub made a planning application in 2017 to replace two pieces of plant machinery. Mr X made representations as part of that process. Although he did not object to the application, he asked for a noise survey to be completed. The applicant eventually agreed to commission a survey and, as a result, the Council imposed a condition saying the two new items should have acoustic enclosures around them to dampen any noise they emit.
17. Mr X says he explained to the planning case officer how the pub had previously agreed to put in place enclosures only to then remove their doors during high summer due to overheating. Mr X points out this coincided with the time of year he was most likely to want to use his garden. He says the officer assured him the planning condition would prevent that happening this time.
18. Mr X says he noticed, after the two new pieces of plant machinery were in place, the pub had installed only one of acoustic enclosures. He alerted the Council to his concerns.
19. The Council says a planning enforcement officer visited and found Mr X was correct. It says the enforcement officer spoke to an officer from its environmental health team and asked him to visit to carry out checks. He also spoke with the company who own the pub to express his concerns.
20. The pub’s owner told the Council it had not installed the second acoustic enclosure because it had changed the layout of the machinery in question. This meant the noise-generating part was now inside the pub’s cellar rather than outside the building. It sent its own evidence showing this meant noise emissions were now at an acceptable level.
21. The environmental health officer visited the pub but could not measure the noise levels properly because the other, older machinery was too noisy. The Council says there then followed a period of time in which its officers spoke with their counterparts at the company which owns the pub to try to find a solution.
22. Later in 2018 both officers carried out a follow-up site visit. They found the older machinery was still making too much noise and one of the items approved in 2018 was also doing the same. The Council asked the pub’s owner to commission an independent expert to review the situation and make recommendations. The pub’s owner did this, sent the report to the Council and agreed to carry out the recommendations.
23. The pub’s owner also said it intended to put in a retrospective planning application to regularise these changes. The Council says it has received no application to date.
24. Mr X complains the Council’s planning enforcement officer told him in October 2018 it was ‘not expedient’ to take formal action against the pub. The Council says this was because of the ongoing work it was doing to resolve the issue with the pub’s owner. It says it has had verbal discussions with it about putting in a new application.
25. The government’s guidance says it may not be expedient to take enforcement action where:
• the breach is trivial or technical in nature;
• where the principle of the change is acceptable and so any action would only be to regularise the development; or
• where the Council believes a revised application would resolve the breach instead.

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Analysis

26. The Ombudsman is not an appeals body and so I cannot replace the Council’s professional judgement relating to a decision with my own. The Council is entitled to make decisions on their own merits, having considered all the facts, and Mr X’s disagreement with a decision does not necessarily mean it was fault.
27. In respect of the Council’s conclusions around the older plant machinery, I have seen evidence it has considered Mr X’s arguments about the 2011 planning condition. It concluded the condition is no longer enforceable. This is a professional judgement for the officers concerned and it is not my place to say otherwise.
28. Also, as I have not investigated events in 2011, I cannot comment on any assurances Mr X received at that time.
29. In respect of the 2018 planning permission, Mr X made representations to the planning committee. As the main next-door neighbour in the immediate vicinity, it is clear conditions about neighbouring amenity are mainly for his benefit.
30. One of the conditions required acoustic enclosures around the two pieces of machinery. Yet within weeks of the decision, and the acceptance there was a breach, the Council decided it was ‘not expedient’ for it to take enforcement action. I have carefully considered the evidence for this decision. Although there may be cases where it would be fault, especially given the short period of time that had elapsed, I am not satisfied this is such a case.
31. There is clear evidence of a change of circumstances because the layout of the plant machinery was now different to the planning approval given. This should be to Mr X’s benefit as the main noise-generating item is now within the cellar of the pub rather than outside. The planning enforcement officer only reached his decision after an environmental health officer’s involvement, which included site visits. The Council has explained this and continued to correspond with the pub’s owner to resolve its remaining concerns.
32. Councils can take enforcement action if they find a breach of planning rules. However, they should not take enforcement action just because there is a breach. The National Planning Policy Framework says, at paragraph 58, “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.”
33. It is clear the Council has not simply ignored Mr X’s concerns or made promises it has not kept. The available evidence shows it has remained in contact with the pub’s owner with a view to reaching a solution. As planning enforcement action is discretionary, I cannot say it is fault for the Council to have not taken more formal action to date. However, it should keep the situation under review to satisfy itself the pub is making sufficient progress toward an appropriate outcome.

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Final decision

34. There is no evidence of fault in the Council’s approach in this case.

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Parts of the complaint that I did not investigate

35. Mr X strongly argued I should consider investigating the full period of time his complaint covers. He says this is because planning permission granted by the Council in 2011 is still adversely affecting him today. He says he has been speaking to the Council and his local councillor during that time about his concerns. He believes a condition put on the planning permission in 2011 still has effect today.
36. I have to balance Mr X’s request against our normal approach to late complaints. The law says we should only investigate matters arising and decisions taken within the 12 months before somebody complains to the Ombudsman. We can look back further if there is good reason to do so. However, it would be very unusual for us to look back eight years unless exceptional circumstances applied.
37. In this case, there have been several planning applications relating to the development of the pub since 2011. Each of these decisions stands in its own right. If Mr X wanted to complain about the consequences of those decisions, he needed to do so at or around the time. The same applies to the outcome of any planning enforcement complaints he made. I am also concerned it would be very difficult to properly investigate such old events given the passage of time.
38. The Ombudsman accepted Mr X’s complaint in March 2019, after he had completed the Council’s complaints procedure. Having reviewed the timeline of events in this case, I can see the most recent planning decision about the pub taken by the Council was in February 2018. The Council has also considered a planning enforcement complaint from Mr X during that time. That being the case, I have limited my investigation to only consider events since January 2018.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman