Summary: Mrs X complained about the way the council dealt with a planning application for a change of use. There was no fault by the Council.

The complaint

1. Ms X complains the Council failed to properly decide a planning application for changing the use of a building close to her home. She says the Council did not apply appropriate conditions to protect her from noise and it failed to properly take account of a wooded area between her building and the application property.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke to Mrs X and considered her complaint. I asked the Council for information and considered its response to the complaint.
5. I sent a draft decision to Mrs C and to the Council to enable both parties to comment. I considered the comments I received before I made a final decision.

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What I found

6. Mrs X complains about the way the Council decided a planning application to change the use of former abattoir near to her home to B1, B2 and B8 use. This would enable it to be used for offices, general industrial premises and warehousing and storage. Her concerns primarily relate to the noise from the site. Mrs X was purchasing her property at around the time the planning application for the abattoir was determined.

Notification

7. The law requires a council to take certain action to notify the public about planning applications. The publicity required depends on the nature of the development. In this case the legal requirement was for a site notice to be erected or for neighbours to receive notification.
8. The conversion of the property Mrs X purchased was underway before the abattoir planning application was received. Mrs X says the first letter she received about conveyancing to buy her property was 10 October 2017. The developer who was converting Mrs X’s building contacted the Council on 3 October with regard to street naming and numbering for her development. The street naming was completed on 10 October. This was before the Council received the planning application for the abattoir, so it allowed notifications to be sent to Mrs X’s development.
9. The Council received the application in November 2017. It sent 18 notification letters, including one to Mrs X’s property. It also posted a site notice and a newspaper advert.
10. The notification period ran from 10 November to 1 December 2017.
11. The actions the Council took to publicise the application were in accordance with the law. There was no fault in this regard.

The consideration of the application

12. The planning application was solely for a change of use. It proposed no actual development work to the building or the grounds. The case officer’s report explained the background, described the site and previous use. She considered comments from various consultees. These includes, the Highway Authority, the Town Council, the Economic Development Officer, the Environment Agency and Environmental Health.
13. There were no concerns about traffic generation as it was not envisaged to be any greater than the present use. The Town Council and Economic Development Officer supported the proposal as it was in accordance with the plan to promote business in the immediate area. It would provide premises for local businesses. The Environment Agency had no objections.
14. Amongst other things the Environmental Health Officer considered the noise impact. He stated B1 usage should pose no nuisance. However, the other types of business the application would allow could vary considerably. Some could be noisy. He did not propose restrictions on operating hours, but he recommended a noise condition was applied to control noise during the day and more strictly at night. He stated any company moving to the site should make sure that their equipment and machinery would not fall foul of the conditioned restrictions.
15. The noise condition stated:

“Noise emissions from any part of the premises or land to which this permission refers, when measured at the points X marked on the attached plan shall not exceed background levels by:

more than 3 decibels expressed in terms of an A-Weighted, 1 hour Leq, at any time between the hours of 08:00 –18:00.

more than 0 decibels expressed in terms of an A-Weighted, 15 minute Leq, at any time between the hours of 18:00 and 08:00 the following day.

For the purposes of this permission background levels shall be those levels of noise which occur in the absence of noise from the development to which this permission relates, expressed in terms of an A-Weighted, 90th percentile level, measured at an appropriate time for a period of 1 hour for measurements between 07:00 -19:00 and a period of 15 minutes between 19:00 and 07:00 the following day

Noise emissions having tonal characteristics, e.g. hum, drone, whine etc, shall not exceed background levels at any time, when measured as above.”

16. Mrs X’s building is adjacent to the former abattoir. The monitoring points proposed by environmental health were in public spaces on the other side of Mrs X’s property, when compared to the abattoir. The Council provided evidence of the consideration that the Environmental Health Officer gave to the development. In comments to the planning team, he acknowledged that Mrs X’s building was being developed, however, it would not be practical to have a monitoring location at these properties as they would be on private land. The monitoring locations needed to be in a public place so that monitoring could take place there. He noted ‘This does mean that the houses on that site could be subject to higher levels of noise than the properties on the other side of [Mrs X’s lane]”.
17. Based on the comments received and the relevant planning policies, the case officer approved the application in January 2018. The noise condition was added to the decision notice.
18. The Council provided evidence that its environmental health team had also commented when the Mrs X’s building was being developed. They raised the issue of potential noise from (what was then) a disused abattoir. They noted while it was disused, the site had permission for use as an abattoir, and could be re‑opened. It could also be developed or used by other businesses.
19. The crux of Mrs X’s complaint was that:
• There was no public consultation about the application with neighbours.
• There was a lack of environmental conditions to control the use of the site. She felt the Council had failed to consider the impact of the new uses on residents. She noted there were far fewer conditions than other planning applications for development she had seen.
• Trees within the abattoir site were in poor condition. One had fallen, damaging their fence. The abattoir was owned by the County Council previously and she doubted it had maintained the site properly.
• She also complained there was noise from the abattoir and the noise monitoring points within the noise condition were behind her property, so they could not properly consider the noise impact she would suffer.

Was there fault by the Council?

20. There was no fault in the way notification was carried out. The steps the council took to publicise the application met council’s legal obligations, a site notice was posted and there is evidence Mrs X’s property was notified.
21. The application did not propose any work to the building. It solely concentrated on a change of use. To some extent this explains why there may be fewer conditions that Mrs X expected. The case officer applied conditions that were proposed by consultees, and the apparent lack of conditions was not fault.
22. Although I understand Mrs X has a concern about trees on the site, the health of trees on land between the abattoir and her building would not have been a consideration for the planning team as this was solely an application for change of use. Somerset West and Taunton Council (SWaT) were not the owners of the building previously, so Somerset West and Taunton Council was not responsible for the condition of the site.
23. The Council sought advice from Environmental Health Officers and they commented about potential noise. There is clear evidence the environmental health team knew of and considered Mrs X’s building. They noted that noise may be higher at that property. They explained the reasons for the position of the noise monitoring points. Although I appreciate Mrs X disagrees with the decision, I do not have grounds to question the environmental health officer’s judgement. There was no fault in how he reached his view.
24. The existing planning permission and previous use of the site was well known and it was reasonably conceivable that if the site re-opened or if the property was used for other purposes, this may lead to some noise for nearby residents. As the site had existing planning permission and could have re-opened, this was a factor that was relevant when considering the change of use. Officers had commented on the application for permission for Mrs X’s development that the existing or future use of the abattoir building meant that some noise was possible.
25. Having reviewed the consideration given to the change of use application I do not consider there was fault by the Council. Officers had flagged previously that the site (because of its existing permission) could generate noise. There is evidence they properly considered the impact of noise and took account of Mrs X’s property. They applied a condition to limit noise. While I understand Mrs X’s property is less protected than the next nearest houses, the reasons for the position of the noise monitoring points were explained by officers when they originally commented on the application.
26. The planning condition applied to the planning permission affords residents some protection about noise. However, complaints about noise can also be made to the Council separately from the planning regime. If noise complaints are made, councils have a duty to consider whether noise from a premises is significant enough to represent a Statutory Nuisance. If it does, the Council is required to act. This presents a separate route for Mrs X to follow if noise becomes a problem.
27. As I found no fault in the Council’s actions I have completed my investigation and closed my file.

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Final decision

28. There was no fault by the Council. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman