Summary: Mr X complains about the way the Council has dealt with numerous concerns he raised about the operation of a business close to his home. He also complains that the Council failed to make reasonable adjustments for him, breached his data, and failed to respond to his complaints. Mr X says this has badly affected his health, and he is scared to go out in case he is threatened by his neighbour. The Ombudsman does not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Mr X, complains about the way the Council has dealt with numerous concerns he raised about the operation of a business close to his home. He also complains that the Council failed to make reasonable adjustments for him, breached his data, and failed to respond to his complaints.
2. Mr X says this has badly affected his health, and he is scared to go out in case he is threatened by his neighbour.

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What I have investigated

3. Mr X has made numerous, repeated complaints to the Council about similar issues. I have investigated Mr X’s complaint up to the point the Council issued its stage two (final) response to his complaint (April 2020).
4. The final section of this statement contains my reasons for not investigating the complaints Mr X has made since April 2020 and other parts of his complaint.

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The Ombudsman’s role and powers

5. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
8. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

10. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
11. I considered the relevant legislation, set out below.

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What I found

What should have happened

Breaches of planning permission and planning enforcement

12. When a local authority gives planning consent, it often attaches conditions to it. Some conditions can limit what a business can do, for example, in a residential area. If there are alleged breaches of planning conditions, the council should investigate.
13. Government guidance explains how councils should use their enforcement powers. Enforcement action should only be taken if it would be a proportionate response. In reaching a decision, councils should consider what harm is caused to the public by the unlawful development or breach of planning consent. If a council decides it would approve an application for the development, further enforcement action is not likely to be in the public interest.

Noise nuisance complaints

14. Under the Environmental Protection Act 1990, if noise causes a statutory nuisance, authorities are required to take action to ‘abate’ (reduce) such nuisance. To be a statutory nuisance, the law says the noise must be unreasonable and must substantially interfere with the use or enjoyment of a home, or must injure, or be likely to injure, health.
15. Councils are required to investigate complaints of noise nuisance. A council will gather evidence to establish whether or not the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it will serve a noise abatement notice requiring the nuisance to be stopped.
16. There is no fixed point at which noise becomes a statutory nuisance. Councils will rely on professional environmental health officers to gather and assess evidence of noise and decide if a statutory nuisance exists. To do this, officers may, for example, ask the person complaining of nuisance to complete and return diary sheets detailing the noise.
17. Councils must also consider how the noise affects the average person, who may not share the specific circumstances of the complainant. In practice, this means councils have some discretion deciding whether noise is a statutory nuisance. However, a council cannot take action against the perpetrators of noise without robust evidence.

Reasonable adjustments

18. The Equality Act 2010 puts a duty on any body that carries out a public function. It aims to ensure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
19. The duty is to make adjustments by taking steps to remove or prevent obstacles to accessing that service. If adjustments are reasonable, they must be made.
20. The Ombudsman can look at whether a council has considered making reasonable adjustments. We cannot decide if an adjustment is reasonable or if there has been a breach of law. This is something only the courts can determine.

What happened

21. Mr X’s rear garden backs onto a small residential road. On the opposite side of this road, Mr X’s neighbour operates a small business from a workshop in his rear garden. The neighbour’s rear garden backs onto an industrial estate.
22. The neighbour has operated this business for approximately 18 years. Many years ago, the Council put some conditions on the neighbour’s planning permission which limited aspects of his business operation.
23. In September 2019, Mr X complained to the Council about the neighbour. He alleged that the neighbour was breaching the planning conditions. The Council visited the neighbour and discussed the planning conditions.
24. In January 2020, Mr X complained again to the Council about the neighbour. He again alleged planning breaches. The Council visited the neighbour.
25. The Council told Mr X what action it took and gave him details of the meeting it had with the neighbour.
26. The next day, Mr X emailed the Council. He said he could not go online to make a formal complaint because of a disability. He asked for alternatives so he could make a formal complaint.
27. The following day, Mr X formally complained to the Council by email.
28. The Council replied that day, saying it usually responds to complaints in writing or by email. It asked Mr X to let the Council know if either of those ways was unacceptable, or if there was an alternative way he would prefer the Council to respond.
29. Mr X replied the same day, saying he wanted a response by email.
30. The Council sent its stage one response to Mr X’s complaint at the end of February. It responded to each of his complaints. It told Mr X the action it took about his allegations of breaches of planning conditions.
31. The Council said it was not its responsibility to enforce vehicles causing obstructions on the road or pavement between Mr X’s rear garden and the neighbour. It said it was for the police to enforce.
32. The Council said if Mr X believed there was a noise nuisance coming from the neighbour’s business, he must contact a named Council officer in the first instance. It asked Mr X to provide certain information which would help it investigate a noise complaint. It said that officer would then liaise with officers from the environmental health team.
33. Mr X asked that his complaint was dealt with at stage two of the Council’s complaints procedure. Mr X complained that he had received a notification in April saying that an email he sent the Council was deleted without being read.
34. The Council sent its stage two response in April. The Council said it did not know why Mr X received that notification.
35. Regarding planning enforcement action, the Council said it did not have to take enforcement action every time there is a breach of planning conditions. It said its powers are discretionary. It said it was not necessary for the Council to take enforcement action on minor breaches.
36. The Council said there appeared to be four potential breaches of planning conditions. It said it would address each of the breaches with the neighbour.
37. Regarding noise nuisance, the Council said it would be helpful if Mr X told the Council when the nuisance happened and provided other information. It said the evidence Mr X had provided was not clear on the details.
38. The Council said that during a phone call with Mr X in March, the officer agreed to arrange a meeting between Mr X, a planning compliance officer, and an environmental health officer to discuss the noise complaint. The Council said Mr X said he did not want this meeting to go ahead. It said it would address the issue directly with the neighbour, based on the information Mr X had given up to that point.
39. On the same day the Council sent its stage two response, Mr X called the Council asking that his complaint was not dealt with by the officer who sent the stage two response. The Council sent Mr X an email that day saying his request had been passed to a senior officer.
40. At around this time, Mr X called the Council to report a vehicle parked near his back fence. He believed this was the neighbour’s car. He was unhappy with where and how it was parked.
41. Shortly after, the Council sent Mr X a letter. It said it had investigated Mr X’s report of about the vehicle and put a notice on the car. It said that it then found out that the car was taxed, MOT’d, and that it had identified the owner. It told Mr X that the car had not been abandoned.

Analysis

Complaints about the neighbour’s business

42. Mr X complains about the way the Council has dealt with numerous concerns he raised about the neighbour’s operation of a business close to his home.
43. Mr X alleged that the neighbour had breached his planning conditions. I find that the Council investigated these allegations and decided not to take enforcement action. This is a decision the Council is entitled to make (see paragraph 13). For this reason, I do not find fault.
44. Mr X complained that the neighbour’s customers park on the pavement at the rear of his property, blocking his access through the gate in his back fence.
45. The Council told Mr X that it was not responsible for enforcing obstructions to the highway or pavement, this is for a matter for police. I agree. The road has no parking restrictions and is unmarked. It is not the Council’s responsibility to enforce parking where there are no restrictions.
46. Mr X says the Council sent enforcement officers who issued parking tickets.
47. The Council responded to Mr X’s report about the car. In its response to Mr X, the Council confirmed the vehicle had not been abandoned (which is the only enforcement action the Council could have taken about a car which was otherwise parked legally on a road with no parking restrictions). I find the Council put a notice on the car as it should have, given that it believed Mr X’s report was about an abandoned car. The Council later found that the car was not abandoned. For this reason, I do not agree that the Council’s enforcement officers issued parking tickets. I find the Council did what it should have in response to Mr X’s report about the car.
48. Mr X complains that there are signs saying ‘disabled – no parking’ on the fence outside the rear of his house but the Council allows parking.
49. These are not official signs. They appear to be signs Mr X has put up himself. As I have said, there are no parking restrictions on this road, so the Council is not at fault if people park there.
50. For the reasons given above, I do not find the Council at fault.
51. Mr X complains of excessive noise from the neighbour’s business.
52. I find that the Council investigated and found no statutory nuisance. It asked Mr X to provide more information. As I have said in paragraph 17, the Council cannot take action without robust evidence.
53. In February, the Council gave Mr X an officer’s contact details so Mr X had someone he could directly contact about noise.
54. In March, the Council offered Mr X a meeting with officers to discuss the noise. Mr X said he did not want this meeting to go ahead because he wanted to be anonymous. The Council then said it would address the issue with the neighbour directly, based on the information Mr X provided. This is appropriate.
55. I find that the Council has done all it can, and all it should, regarding investigating Mr X’s noise complaint, based on the information Mr X provided. For this reason, I do not find the Council at fault.

Reasonable adjustments

56. Mr X complains that the Council failed to make reasonable adjustments for him.
57. In January, Mr X sent the Council information about his disability. In February, Mr X told the Council he could not make a formal complaint online because of his disability. He asked for alternative ways to make a formal complaint. The next day, he made a formal complaint by email.
58. Without delay, the Council asked Mr X if responding by email/in writing was acceptable, or if he had a preferred alternative way of communicating. Mr X said he wanted the response by email. The Council did this.
59. I find that this shows the Council considered its duties under the Equality Act when responding to Mr X’s complaint.
60. Regarding the noise complaint, Mr X says he told the Council he cannot submit information in written form and says the Council has not addressed how he is to provide this.
61. In the Council’s stage one response in February, it asked Mr X to first contact the named officer regarding his noise complaint. It gave the officer’s phone number as well as his email and postal address. It said the officer would then liaise with other appropriate officers.
62. While the Council did not specifically say this was a reasonable adjustment, I find that it is clear the Council took steps to help Mr X raise issues and provide information over the phone. This is positive, and in line with the Council’s duties under the Equality Act.
63. Further, Mr X told an officer that he had difficult completing a form online. The Council arranged for an officer to help with this. This is another example of a reasonable adjustment the Council has made for Mr X.
64. As I have said in paragraph 20, the Ombudsman can look at whether a council has considered making reasonable adjustments. We cannot decide if an adjustment is reasonable.
65. I find that the Council has either offered to make, or made, reasonable adjustments for Mr X in line with his requests. For this reason, I find that the Council has acted in line with its duties under the Equality Act. There is no evidence that Mr X asked for a reasonable adjustment that the Council did not consider.
66. For this reason, I do not find the Council at fault.

Data breach

67. Mr X complains that the Council breached his data. By this, he means that that Council deleted an email he sent.
68. I have seen the notification that Mr X received which said the email was deleted without being read.
69. I am unable to find that the Council deleted the email without reading it. It may have been a fault with Mr X’s internet or email provider. I cannot say. In any event, deleting one email would not be significant enough to constitute fault.
70. For this reason, I do not find the Council at fault.

Failure to respond to Mr X’s complaints

71. Mr X complains that the Council failed to respond to his complaints.
72. Mr X has made a number of complaints and sent a large number of emails to the Council, almost entirely about the same issues.
73. I find that the Council has responded to each of Mr X’s points of complaint. There is no evidence that the Council has failed to address any of Mr X’s complaints. For these reasons, I do not find the Council at fault.
74. Mr X does not accept the Council’s responses. This is not evidence of fault.

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Final decision

75. I have completed my investigation and I do not uphold Mr X’s complaint. This is because there is no fault.

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Parts of the complaint that I did not investigate

Variation of planning conditions

76. Since April 2020, Mr X has made further complaints about the neighbour’s business, specifically about the Council’s decision to vary planning conditions. Mr X wants the Ombudsman to investigate this.
77. The Council granted a variation to the neighbour’s planning permission in October 2020.
78. As I have said in paragraph seven, we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply.
79. I find that the Council has not yet had sufficient time to investigate or respond to this part of Mr X’s complaint. For this reason, I consider this part of Mr X’s complaint premature. Once the Council has responded to this particular point of complaint, Mr X can bring a new complaint to the Ombudsman if he remains dissatisfied.

Reasonable adjustments

80. In April, after the Council’s stage two response, Mr X asked the Council for a reasonable adjustment. Mr X’s doctor sent the Council a letter in July about reasonable adjustments.
81. Mr X has asked the Ombudsman to investigate this. As I have said in paragraph three, I have investigated Mr X’s complaint up to the point the Council issued its stage two response. This means that I have not considered, as part of my investigation, Mr X’s later requests for reasonable adjustments.
82. There is no evidence that this part of Mr X’s complaint has been through the complaints procedure. For this reason, I find that this aspect is premature. The Council will need an opportunity to consider this through its complaints procedure before the Ombudsman can investigate it.

Discrimination

83. Mr X alleges that the Council has discriminated against him.
84. The Ombudsman cannot make a finding about alleged discrimination. This is an issue only the courts can determine. In line with paragraph eight, I do not consider it is unreasonable to expect Mr X to exercise his right to take this matter to court.
85. For this reason, I have not investigated the part of Mr X’s complaint about discrimination.

Complaint handling

86. Mr X complains that he requested that the officer who sent the stage two response no longer deal with his complaint. He says this was never done, and that the officer continued to handle his complaint.
87. Mr X made this request on the same day that officer sent the stage two response.
88. I have investigated the Council’s actions up to the date it sent the stage two response. For this reason, I will not investigate this part of Mr X’s complaint further.
89. Further to this, Mr X complains that he did not get responses to an email he sent the Council about parking in September 2020 and a complaint he made about parking in October 2020. As I have said above, these fall outside the scope of my investigation because they occurred after April 2020.

Subject Access Request

90. Mr X complains that he made a Subject Access Request to the Council, but he has not yet had a response.
91. As I have said in paragraph nine, the Ombudsman normally expects someone to refer complaints about data protection to the Information Commissioner. This is because we consider the Information Commissioner is better placed to deal with complaints of this nature.
92. Mr X says he has taken his complaint to the information Commissioner.
93. For these reasons, I do not consider there are good reasons to investigate this part of Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman