Summary: Mr D complains the Council’s Planning Team failed to deal with reports about construction noise and did not refer him to Environmental Health quickly enough. The Ombudsman has found evidence of fault which the Council had already acknowledged in its correspondence with Mr D. He has upheld the complaint and competed the investigation because the Council will sets out when new referral procedures about construction noise will be in place.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council failed to deal with his reports of out of hours noise caused by construction work and site deliveries. He says the case should have been referred sooner to Environmental Health to investigate.

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What I have investigated

2. I am looking at events from August 2018 onwards. I explain below why I am not looking at earlier actions.

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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 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)
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 have spoken to Mr D and considered the information he provided. I asked the Council questions and carefully examined its response.

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What I found

What happened

Background

7. The Council granted planning permission for two new houses near Mr D’s home in 2017. The Owner of the site was required to complete a Construction Method Statement (CMS) which included details of acceptable working hours. The CMS stated work and deliveries to the site should be between 8am and 6pm weekdays and 8am to 1pm on a Saturday.

Events I have investigated

8. On 1 August 2018 Mr D complained to the Council about noise at the site happening outside the CMS hours. A Planning Enforcement Officer (Planning Officer) acknowledged the case and opened an investigation. She contacted the site owner who explained why the noise had occurred and measures taken to prevent a recurrence.
9. On 23 August Mr D emailed the Planning Officer about further early morning noise. On 14 October Mrs D contacted the Council about work at the site happening outside the CMS hours. The Planning Officer replied on 23 October. She had spoken to the owner about working within agreed hours. The Council did not consider it expedient to take formal enforcement action.
10. On 1 February 2019, the Planning Officer emailed Mr D. She had contacted the site owner about outstanding breaches of planning control, and he would be submitting a new planning application to seek permission for the changes. In respect of noise at the site she had spoken to Environmental Health who investigate statutory noise nuisance and she provided Mr D with contact details for that Team along with a leaflet.
11. Following further contact from Mr D Environmental Health sent him a noise log in July to complete and return within 14 days. It told Mr D it had also written to the alleged perpetrator advising a complaint had been received. On 5 September Mr D returned the noise logs but they related to noise from July. On 16 September, an Environmental Health Officer spoke to Mrs D. They explained the noise logs needed to be correctly completed and relate to current noise. Mrs D said the works had stopped at present.
12. Mr D complained that month to the Council about it failing to refer him to Environmental Health sooner. The Head of Planning replied on 25 September that Mr D had been given details about Environmental Health in February and there was no fault. Mr D asked the Council to consider his complaint further.
13. On 7 October, the Council received more noise logs from Mr D. Again, they related to noise from July. Mr D said the noise had stopped but he wanted Environmental Health to do a proactive site visit. I understand Environmental Health subsequently told Mr and Mrs D it would not be doing a site visit as there was no noise happening to merit a visit.
14. On 14 October, the Council replied to Mr D’s complaint. It reiterated that Mr D had been advised about Environmental Health in February. However, prior to that the Council had sought to resolve any planning breaches via the CMS but “we came to realise over time” it “would probably have more success if action were pursued under Environmental Health legislation”. The Council apologised for not forwarding the noise element of the complaint directly to Environmental Health “from the beginning”.

What should have happened

15. 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)
16. When the Council receives a report about an alleged breach of planning control it logs the report and opens an investigation. A Planning Officer will investigate and may visit the site and discuss matters with the owner. The Planning Officer should notify the complainant about any key decision to resolve the case or close it.
17. The Council does not have procedures on when or how to refer a case from Planning Enforcement to Environmental Health.
18. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’ which can include noise from premises or vehicles, equipment or machinery in the street. For the issue to count as a statutory nuisance, it must unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or injure health or be likely to injure health.
19. Statutory noise nuisance complaints are investigated by the Environmental Health Team. They will contact a complainant and ask them to fill out a noise log detailing the current problem. Once the noise log is returned to the Council an Officer will consider if there is a likely statutory nuisance ongoing that requires further investigation. If there is no ongoing noise the Council cannot look to take enforcement action. It cannot investigate retrospective allegations of a statutory noise nuisance.

Was there fault by the Council

20. The Council has already accepted with Mr D that it could and should have referred his noise complaint to Environmental Health from the outset. I have not found any additional fault to that already identified. I also note the Council did advise Mr D about Environmental Health and its role in February 2019.
21. The Council did not have procedures in 2018 or 2019 advising Planning Officers when to refer a case to Environmental Health. If it had, this fault may not have occurred. The Council accepts that procedures are now needed and “as a result of this investigation the Council will now look to introduce clearer guidance” for Officers.

Did the fault cause an injustice

22. Although Mr D believes earlier investigation would have found a statutory nuisance it is impossible for me to conclude that would be the case. The Ombudsman cannot hypothesise about what might have happened in the absence of any evidence of a statutory nuisance.
23. The Council’s failure to refer the noise case to Environmental Health meant a statutory noise nuisance investigation was delayed and Mr D was not told about the role of Environmental Health until six months after his initial complaint in August 2018. The Council also already apologised to Mr D for this failure. I consider that an adequate remedy given that I cannot say with any certainty whether earlier action would have resulted in a different outcome regarding a noise investigation. Mr D says he should receive financial redress for his time and trouble. The evidence shows me he had limited interaction with the Council which I do not consider warrants a time and trouble payment.

Agreed action

24. The Council has now accepted that procedures are needed to inform Officers about when and how to refer a noise complaint. I consider that an adequate remedy to the complaint. The Council should tell me when the policy will be introduced within four weeks of this case closing.

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Final decision

25. Subject to further comments by Mr D and the Council, I intend to uphold the complaint and complete the investigation.

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Parts of the complaint that I did not investigate

26. I am not looking at what happened prior to August 2018 because Mr D could have complained to the Ombudsman sooner.

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Investigator's decision on behalf of the Ombudsman