Summary: Mrs X complains the Council has failed to properly investigate or take action in relation to noise disturbance or breaches of planning conditions intended to safeguard against potential noise disturbance. There is no evidence of fault in the way the Council has investigated Mrs X’s complaints of breaches of planning control or noise disturbance.

The complaint

1. The complainant, whom I shall refer to as Mrs X complains the Council’s planning department has failed to properly investigate or take action in relation to breaches of planning conditions intended to safeguard against potential noise disturbance.
2. Mrs X also complains the Council’s Public Protection team has failed to properly investigate or take action in relation to her reports of noise disturbance.

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The Ombudsman’s role and powers

3. 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)
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 the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mrs X; and
• sent a statement setting out my draft decision to Mr X and the Council and invited their comments.

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What I found

Planning enforcement

6. Councils can take enforcement action if they find planning rules have been breached. However councils should not take enforcement action just because there has been a breach of planning control. 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)

Noise nuisance

7. Councils must consider complaints about noise that could be a statutory nuisance. 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 property
• Injure health or be likely to injure health
8. A statutory nuisance will usually need to be witnessed by the Environmental Health Officer and they will come to a judgement. The process of deciding what noise forms a nuisance can be subjective. The noise, its length, timing and location may be considered when deciding whether a nuisance has happened.

What happened here

9. Mr and Mrs X bought a new build property on a site close to a busy main road, and an industrial estate in the summer of 2017. In August 2018 Mr X contacted the Council’s Environmental Protection department to complain about disturbance from noise and flood lights at a business (Company 1) on the industrial estate.
10. An Environmental Health Officer (EHO) discussed these concerns with Mr X. The EHO’s notes state that as Company 1 had submitted a planning application which would move the source of the noise, Mr X was more concerned about the lighting. The EHO contacted Company 1 who arranged for the light fitting to be moved and tilted to stop light spill off site. As this did not resolve the problem the EHO visited Mr and Mrs X’s property.
11. The notes of this visit state that although the light can be seen shining into the property when the blinds are open, when the binds are closed there is only a small gap for light to spill through. The EHO did not consider this level of light spill would amount to a statutory nuisance. In relation to the noise from the site, the notes record there was a constant humming which could clearly be heard with the windows open. With the windows closed the humming noise was still slightly audible, but the dominant noise was road traffic.
12. The EHO and a senior EHO visited Company 1 and carried out noise monitoring. The EHO identified that the noise was not coming from the expected source, but from lorries parked on the site overnight. The Council then installed noise monitoring equipment at Mrs X’s property. The noise recordings show noise from the lorries was clearly audible with the windows open and still noticeable when the windows were closed.
13. In November 2018 Mrs X also contacted the planning department in relation to noise from builders parking on a strip of land in front of her property over the summer. The developer had then started storing materials there before distribution to the rest of the site. Mrs X queried whether the developer had or needed consent to use this area of land in this way. The Council advised this was a private matter between Mrs X and the developer. It subsequently clarified its understanding of Mrs X’s concerns and advised that some temporary transient storage was inevitable. But parking and storage on a more permanent basis should be in accordance with the Construction Management Plan. This was no longer a problem, but the Council advised Mrs X that if this re-occurred and was not in accordance with the plan, to contact the Council.
14. Mrs X contacted the planning department again in December 2018 raising concerns about a possible breach of a planning condition relating to the glazing requirements for her property. A Planning Enforcement Officer (PEO) contacted the developer and asked for confirmation Mrs X’s property had been built in accordance with the requirements of the condition. The developer confirmed it had.
15. Mrs X provided an extract from a noise report submitted as part of the planning application for her property. She noted the extract said the external walls should have an inner skin of solid concrete blocks, but that this did not appear on the materials specification for her property. Mrs X also asserted the windows to the bedroom and living room did not meet the Sound Reduction Index.
16. The Council did not consider this was evidence of a breach of planning control. It advised the Council could only take action where it had been proved there was a breach and where it was expedient to do so. Mrs X had questioned whether the building was constructed in accordance with the approval, and the developer had confirmed it was.
17. In January 2019 the EHO and a senior EHO visited Mrs X’s property to assess the noise again. They noted that with the windows closed the noise was just audible as a constant low hum. With the windows open the dominant noise was passing cars, with the steady hum just audible. The officers concluded a statutory nuisance did not exist, and the EHO wrote to Mrs X confirming they would not proceed further with the investigation. The officer also noted that Company 1’s recent planning application proposed constructing a six-metre fence to mitigate noise.
18. Mrs X raised concerns about noise disturbance for lorries leaving Company 1’s site in the early hours of the morning. The EHO confirmed they could investigate this noise and arranged to install noise monitoring equipment. Having listened to the noise recordings the EHO advised Mrs X they could not identify what noise was waking her up. There were only a few occasions when loud bangs or beeps were picked up. Given the infrequency, noise level and the proximity of her property to the site, the EHO did not consider this was a statutory nuisance. The EHO had however spoken to the site manager who would remind staff to be considerate to the neighbours.
19. In March 2019 Mrs X made a formal complaint to the Council about failings in the planning process regarding the acoustic protection for her property. She was not satisfied by the Council’s response and asked for her complaint to be considered further. Mrs X was concerned that the initial noise reports submitted with the planning application specified the external walls should all be built with concrete inner blocks, but this requirement was removed from the final approved documents. Mrs X had also received correspondence from the developer which confirmed they had only installed the special acoustic window in one bedroom, rather than all bedrooms and living rooms.
20. In its response the Council advised that the final noise report was submitted to overcome concerns about the insulation of properties on the main road. The insulation of other properties, including Mrs X’s, had already been agreed so it was not necessary to confirm that text in the revised noise report remained the same.
21. The Council noted it had investigated noise at Mrs X’s property and was satisfied a statutory nuisance did not exist. The Council was also satisfied the planning application and relevant conditions were considered properly and normal processes and procedures were followed. The developer had confirmed that Mrs X’s property had been built in accordance with the permission, and without evidence to the contrary the Council did not intend to take any further action.
22. Mrs X contacted the planning enforcement team again in late July 2019. The developers had commissioned an assessment on the windows in Mrs X’s property which identified faults with the windows which could affect the soundproofing. The report recommended remedial work involving deglazing then re-glazing the windows. If this did not resolve the noise problem, it recommended fitting triple glazing. The PEO noted these faults, rather than the window specification could be the cause of them not soundproofing effectively. The officer suggested that if the seals were faulty this should be the first thing to address and asked Mrs X whether the developer had carried out the remedial work. The PEO also checked the position with the developer.
23. Mrs X did not respond, but the developer confirmed it had resealed all the windows in Mrs X’s property. The developer also confirmed it had offered to replace all the windows in Mrs X’s property with triple glazing, but Mrs X had declined. The developer had made this offer in full and final settlement. As Mrs X was concerned the replacement windows would not resolve the noise problem she was not prepared to agree to a full and final settlement. The developer then withdrew their offer.
24. The developer also advised the Council that Mrs X had gone on to make a complaint under the Consumer Code. The Code gives protection and rights to purchasers of new homes and provides dispute resolution arrangements to deal with breaches of the Code. The developer advised the Council that the dispute resolution adjudicator ruled in its favour having confirmed the installation was as per the working drawings.
25. Having received this information, the Council advised Mrs X it would not take any further action.
26. Mrs X disputes the developer’s account of the Consumer Code adjudicator’s decision but did not respond to the Council or raise concerns regarding the information the developer had shared.
27. Mrs X has asked the Ombudsman to investigate her complaint as she is not satisfied by the Council’s response. Mrs X maintains her property does not meet British Standards for noise and believes the Council should have put acoustic insulation into the walls of her home. Mrs X asserts the Council should pay compensation for the stress and impact on her family’s wellbeing.
28. In response to my enquiries the Council states that from a planning enforcement perspective, before considering formal action the Council has to have sufficient evidence there is a breach of planning control. In this instance, there is no evidence to suggest the performance of the windows does not meet the requirements of the noise report.
29. From an environmental protection perspective, the Council has confirmed it does not consider a statutory nuisance existed. Taking into consideration the character of the noise, consistency of the noise and the locality, it considered noise of this nature was commensurate with living there.
30. The Council also notes Company 1 has now erected an acoustic fence as part of a recent planning permission, and this should help mitigate any noise from the site.

Analysis

31. When considering complaints, we may not act like an appeal body. We focus on the process by which the Council made its decision. Unless there was fault in this process, we cannot question the merits of the decision or offer any opinion on whether we agree with the officers’ judgment.
32. The Council has considered Mrs X’s reports of noise disturbance and determined they do not amount to a statutory nuisance. This is a matter of the officers’ professional judgement. Mrs X disagrees with the decision, but there is no evidence of fault in the way it was taken. The Council has acted in accordance with its own policy. It visited Mrs X’s home and Company 1’s site to witness the noise, and installed noise monitoring equipment. The evidence obtained did not support a statutory nuisance.
33. I recognise Mrs X is unhappy with this decision, but in the absence of any evidence of fault in the decision-making process, we would not consider the matter further.
34. The Council has also investigated whether there was a breach of planning control. Mrs X disagrees with the Council’s decision not to take any further action, but there is no evidence of fault in the way this decision was taken. The planning department sought confirmation from the developer and liaised with the environmental health officer regarding the noise levels. The Council was satisfied there is no evidence the windows are not performing in accordance with the noise report.
35. In reaching its decision, the Council also noted that the developer accepted the windows were not fitted/ sealed correctly and had carried out remedial work. It also considered it relevant that the developer had offered to replace all Mrs X’s windows with triple glazing and had engaged in dispute resolution proceedings with Mrs X.
36. Mrs X is unhappy the developer shared details the Consumer Code proceedings with the Council and asserts the information it provided was incorrect. She maintains her property was not built in accordance with planning permission but did not advise the Council the developer had provided inaccurate information or provide tangible evidence of a breach it would enforce.
37. It is also of relevance that Company 1 has now erected an acoustic fence which will mitigate the noise. Even if the Council had determined there was a breach of planning control, it would not automatically take formal enforcement action. Not all breaches of planning control result in enforcement action. Any enforcement action must be expedient.
38. In response to the draft decision Mrs X has questioned the Council’s decision to grant planning permission at this site and the adequacy of the conditions, given its location and the potential for noise disturbance.
39. Mrs X was aware of the proximity of her property to the busy main road and the industrial operations when she chose to purchase it. As this was a new build property, it is reasonable to expect Mrs X and/or her solicitor to have viewed the planning documents and to have carried out a survey as part of the due diligence before buying the property. Any defects identified in the property would be a matter between Mrs X and the developer and could be raised, as Mrs X has done, via the Consumer Code.

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Final decision

40. There is no evidence of fault in the way the Council has investigated Mrs X’s complaints of breaches of planning control or noise nuisance.

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Investigator's decision on behalf of the Ombudsman