Summary: Mr X complained about the Council’s failure to take planning enforcement action against his neighbour. Mr X says that as a result of this, the Council has failed to protect him from noise caused by an extractor fan. There was no fault in the way the Council made its decision.

The complaint

1. Mr X complained the Council failed to enforce a planning condition against the business next to his home. The condition allowed for an extraction unit to be fitted.
2. Mr X says noise from the extraction unit disturbed him in his home.

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The Ombudsman’s role and powers

3. 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)
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. I read the complaint and invited Mr X to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including comments from an environmental protection officer. I have discussed the complaint with a planning manager.
6. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

What happened

12. The business next to Mr X’s home had planning permission to install a new extraction unit. The extraction unit was not installed in accordance with the plans and the Council’s environmental protection officers (EPOs) considered this to be unacceptable, as it caused noise to nearby residents.
13. The business applied to the Council to vary its plans for the extraction unit and this application was approved, subject to further conditions.
14. One of the planning conditions required the applicant to submit a noise report and to ensure the development did not exceed certain noise levels. The details should be submitted within one month of installation and approved in writing by the Council.
15. The applicant employed a contractor to carry out the work required by the condition, but there was some delay. The applicant eventually employed another contractor, who carried out works and provided details for the Council to consider or approve, but these arrived after the one-month deadline.
16. The Council received complaints about noise from the unit. An EPO visited the site and recommended the Council’s planners should not discharge the planning condition, because noise levels in the planning condition were not met.
17. The Council says, when the EPO made this recommendation, the officer had applied environmental protection criteria relating to statutory nuisance complaints, instead of the requirements and limits set out in the condition. The Council says that environmental protection officers have now accepted that the information provided demonstrates the requirements of the condition are satisfied.
18. The Council’s planning manager says that there is technically a breach of the planning condition, because the condition details were not submitted for approval in time. However, the Council has decided not to take planning enforcement action because its EPO is now satisfied noise level requirements are satisfied. The Council says its EPOs are still considering their own powers and may take further action if they consider a noise nuisance exists.
19. In its response to Mr X’s complaint, the Council agreed it had taken too long to update him on its progress and apologised for this.

My findings

20. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act.
21. Government guidance says councils should try and address breaches of planning control without taking formal action, as this is often the best way to reach a lasting and satisfactory remedy. Formal enforcement action should be only be taken if it would be a proportionate response, and councils are encouraged to resolve issues through negotiation and dialogue with developers.
22. Providing they follow the correct decision-making process, councils are free to exercise their discretion on whether to take formal enforcement action as they see fit.
23. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. Before it made its decision, the Council has considered:
• complaints from the public;
• the views of its EPO;
• the terms of planning conditions it imposed; and
• its powers under the Town and Country Planning Act 1990.
24. The Council has followed the process we would expect, and in these circumstances, I find no fault in the way it made its decision.

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Final decision

25. I have completed my investigation as there was no fault in the way the Council made its decision.

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Investigator's decision on behalf of the Ombudsman