Summary: Mr X complained the Council failed to properly consider reports he made of noise from the use of a business unit. There was delay by the Council and it did not communicate with Mr X properly. However, the Council has since taken enforcement action to address the issues he identified. It has also taken steps to avoid delay and improve communication. These are reasonable actions to remedy the impact to Mr X.

The complaint

1. Mr X complains the Council failed to properly respond to his planning enforcement complaints about a music studio operating in an apartment block below where he lives. He complains the Council should take action to limit the noise from the studio.

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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. 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 Mr X and considered the information he provided. I asked the Council for information and considered its response to the complaint. I sent a draft decision to Mr X and to the Council to enable them to comment.

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What I found

5. Since 2010, Mr X has lived in an apartment block which has commercial units on the ground floor.
6. The commercial units beneath Mr X’s flat all had planning permission for class B1 use. This is office use or light industry that would be appropriate in a residential area. All the units were subject to planning conditions which limited their opening hours 8am and 6pm, Monday to Friday.
7. Mr X says he was aware of music being played somewhere in the block but he could not identify where the noise came from. He established later that one of the units (referred to as Unit A) was being used as a music studio. Mr X says he complained to the proprietor of the studio but the noise continued. He says the music disturbed him, as did noise outside when people from the unit took breaks.
8. In or around April 2018 Mr X made a complaint to the Council’s planning department. Mr X explained his concerns. He stated on occasions the noise from Unit A carried on until after 10pm but as he worked at home sometimes it also disturbed him during the day. He asked the Council to clarify the opening hours and whether the planning rules set a maximum noise level.
9. A planning officer visited Unit A and spoke to the owner. She also clarified whether the noise Mr X complained of was from this unit or another (Unit B), which was also operating as a music studio and had planning permission.
10. In May Mr X confirmed Unit A was the problem. He also explained noise was ongoing until 10pm or later. Mr X noted when Unit B had been given permission the Council imposed a planning condition restricting noise to a set level. He asked if the same was true for Unit A.
11. On 13 June Mr X chased the officer for an update. She told Mr X that Unit A had no planning permission for use as a music studio and she had asked the owner for information to consider this further. She stated she could consider the change of use. However, as there were no noise conditions she could enforce, she could not deal with the noise issue. She suggested Mr X spoke to Environmental Health to ask them to consider noise separately.
12. Mr X asked for an update in July and chased for a response in August.
13. The Council says the officer responded in September 2018. She explained there was no ‘express’ or specific planning approval for Unit A to be used as a music studio. However, in 2004 the occupiers of Unit A had applied for permission to convert part of it to residential accommodation. In their application they stated the unit was an existing music studio. The Council did not pick up on the change of use to a B2 music studio at that time. Because the Council had not acted in 2004, the Council had effectively ‘recognised’ its B2 use. As a result, it could no longer take planning enforcement action regarding the change of use.
14. The Council told Mr X that, although the unit had ‘implied’ permission to operate as a music studio, there had been no request in 2004 to change the hours the unit could operate. So, the unit only had planning permission to operate between 8am and 6pm Monday to Friday. The planning officer told Mr X she would write to residents to tell them what each of the commercial units had permission for and the times they could operate. That would enable residents to advise the Council of any breaches which the Council could consider enforcing.
15. In April 2019 Mr X emailed the officer again. He noted the letter she promised to send had not been sent. He asked her to do this. Although he understood the points she made in September, he asked the Council to put in place a maximum noise condition for Unit A along the lines of that imposed on Unit B.
16. Mr X chased the planning officer as no letter had been received. He received no response, so he complained on 30 April 2019 that the Council had not done what it said it would and that points he raised had been ignored.
17. In response to Mr X’s complaint the Council told him that it intended to hand deliver a letter and log to all the residents in his block that week. However, it re‑iterated there were no conditions controlling noise at Unit A that it could enforce. The Council stated it could only apply conditions if it was considering a planning application, and it could not compel the owners to submit one.
18. The Council told Mr X that the case officer would write to the unit owner and remind them they could only operate between 8am and 6pm, Monday to Friday. If they persisted to operate outside these hours, a breach of condition notice would be served.
19. The Council’s response to the complaint also provided the environmental health team’s contact details so that Mr X could raise the issue of noise with them separately.
20. On 1 May an officer spoke to Unit A’s owner to warn them to adhere to the conditioned operating hours.
21. On 3 May the Council hand delivered letters to all residents and included a log to complete. Mr X returned a form to the council confirming the unit was not keeping to the condition about operating hours. However, the letters were all addressed to ‘The Occupier’ rather than actual residents. Because the Council had no access to the building to post the letters in mailboxes, the majority of the letters had just been strewn across the lobby floor and were either ignored or destroyed as junk mail.
22. As Unit A did not comply, a Breach of Condition Notice was issued on 18 July. The owner of Unit A contacted the Council in August apologising for the breaches of planning control.
23. On 8 November, Unit A’s owner put in a planning application to change the operating hours of the existing music studio. They wished to operate from 9am to 10pm, Monday to Friday and 9am to 9pm on Saturday, Sunday and Bank Holidays. When sending the application, Unit A’s owner explained that the music studio had been refurbished and insulated and action would be taken to manage noise from the clients in the evenings. The application is yet to be decided.
24. In response to Mr X’s complaint the Council changed its position about the change of use. Contrary to its earlier comments, the Council stated the music studio was permitted as it still fell within Use Class B1. It stated B1 use was considered acceptable for the commercial units when it was first granted because of the restrictions on opening hours. It stated, provided the unit kept to the conditioned operating hours, the noise nuisance in the evenings would be mitigated. If there was any desire on the part of the owner to extend those hours, the Council could consider applying conditions.
25. The Council noted it would have to look into the activities of the other commercial units to determine if there were breaches of planning control.
26. Mr X complained to the Ombudsman because he felt the Council had not addressed the need to control other units, it should not have hand delivered letters and because of the error in 2004 that gave the unit ‘implied planning permission’. He felt a noise condition should be imposed on Unit A now. He also felt the Council had been unclear about whether the music studio constituted B1 or B2 use.

Was there fault by the Council?

27. I am not in a position to investigate the events of 2004 or to comment on the background issues that occurred at that time. They occurred too long ago for us to consider now. However, I have noted what happened as it has an impact on the Council’s actions in 2018/2019.
28. The Council was aware Unit A was being used as a music studio in 2004. It appears it did not pick up on this as a change of use at that time. The Council appears to be satisfied that it has been used as such for over ten years. The law states that development becomes immune from enforcement if no action is taken within 10 years of a change of use that constitutes a breach of planning control. So, the Council’s explanation of the historic position is in accordance with planning law.
29. I understand Mr X wants the Council to apply conditions to restrict Unit A, now. When a council is considering a planning application for development, it can impose conditions to control a development. However, once decisions are made on planning applications, the conditions cannot be altered or added to by a council. Conditions could only be added if another planning application was submitted by the owner. There is no fault in the Council’s decision that it could not, now, apply conditions to Unit A.
30. There is evidence that an officer told Mr X he could make a noise complaint to the Council’s Environmental Health team. This would be dealt with separately to any planning complaints about the unit, this was appropriate advice.
31. However, it is unclear why the Council changed its position (and stated there had been no change of use) when responding to Mr X’s complaint. It told us that this was because the music studio had now been insulated. The insulation of a property does not affect whether its use has changed. I found there were no good grounds for stating that the use had not changed. It seems evident that the use was changed and the Council previously accepted this. So, this statement by the Council appears flawed. This was fault by the Council.
32. There has also been a failure to respond to some of Mr X’s contacts in a timely way. In addition, the case officer stated they would send a letter to all residents and unit owners in September 2018. This did not happen until May 2019, after Mr X complained. When it did issue the letter, it acknowledged delivering the letter by hand was not effective as the letters had to be left at the foyer and many were mistaken for junk mail.
33. The Council accepted it had taken too long to deal with this case and to take action. It stated more regular meetings would take place with officers and managers to avoid delays in future. It agreed it would post correspondence in future and communication with complainants would also be more regular. The delays and the issues with communication represent fault by the Council.
34. Although there was delay, the Council has now taken enforcement action to restrict the use of Unit A to the conditioned opening hours (8am to 6pm, Monday to Friday). This prompted an application from the owner to seek to change the operating hours. When considering this application, the Council is entitled to apply conditions if it considers it is appropriate to do so. I also note the unit has been soundproofed. The outcome of the planning application is not yet known. It is unclear why the planning application has not yet been decided. The Council should progress the application to a decision without further delay.
35. The Council should also consider any reports from residents about other units breaching planning rules. It should respond to these in a timely way.

Summary

36. There was fault by the Council. It failed to respond to Mr X’s reports in a timely way and failed to take action it had agreed to. Its communication was also poor at times. The Council also made a flawed statement about the change of use in response to Mr X’s complaint. However, in response to Mr X’s complaint the Council has taken action to address breaches of planning control and it is presently considering a planning application.
37. The Council has also taken steps to ensure that the delay and lack of communication with Mr X does not re-occur.
38. I am satisfied the Council has taken reasonable action to address the fault we have identified.

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Final decision

39. There was fault. The Council has taken action to remedy the impact of this.

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Investigator's decision on behalf of the Ombudsman