Summary: Mr X complained about the way the Council dealt with a planning application from a nearby business and the issuing of an abatement notice relating to statutory noise nuisance. There was no fault in the Council’s actions.

The complaint

1. Mr X complained the Council failed to take appropriate action against a Business which adjoins his property. In particular he complains the Council:
• granted planning permission knowing the site would cause a statutory nuisance; and
• has shown bias towards the Business in regard to a noise abatement notice it served on it.
2. As a result, Mr X says he is unable to sleep or enjoy his property because of the high levels of noise. He also says he is experiencing constant worry because of the current situation.
3. Mr X wants the Council to revoke planning permission and reduce the working hours on the applicant’s site to 40 hours a week until the noise nuisance is abated.

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The Ombudsman’s role and powers

4. 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)
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 spoke to Mr X and considered his view of the complaint.
7. I considered information provided by the Council and available on its website.
8. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and Council policy

Planning protection

9. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
10. Planning considerations include things like access to the highway and the impact on neighbouring amenity.
11. The purpose of planning control is to consider what impact development might have on its environment and decide whether it is acceptable.
12. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
13. The planning process involves judgements to be made about perceived risks and what impacts there might be, as well as a professional judgement as to what measures might be necessary to control them. Planning foresight can never match hindsight in determining risks and outcomes. Because of this, planning controls cannot be expected to provide absolute guarantees that planning conditions will prove completely effective.

Environmental protection

14. Under section 79 of the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance.
15. The Act defines a number of matters as being a statutory nuisance including noise, fumes and gases.
16. If a council identifies there is a statutory nuisance it must serve an abatement notice under s80 of the Act on the person causing the nuisance.
17. A person served with an abatement notice has the right to appeal to the magistrates’ court within 21 days of receiving the notice. The magistrates court has the power to quash, vary the abatement notice or uphold it. Abatement notices can be appealed on grounds including where the requirements are unreasonable or unnecessary or the business has used ‘best practicable means’ to counteract the nuisance.
18. Under section 82 of the Environmental Protection Act 1990, a member of the public may bring a claim of statutory nuisance in the magistrates’ courts.

What happened

19. Mr X’s property is situated close to a Business which is involved in industrial operations some of which takes place outdoors.
20. Over time, the Business has grown and is now significantly larger than it was previously.

Planning application to the Council

21. The Business submitted a planning application which included proposals to extend the site.
22. The Business submitted a number of supporting documents including a noise impact assessment (NIA) from specialist noise consultants. This stated that following consultation with the Council, the report would consider both existing noise from site operations and the impact of future noise from the development proposals.
23. The NIA concluded that even though the proposed works would not increase the current level of noise, the current level was likely to be causing an adverse effect on neighbouring properties, including Mr X’s. The report made mitigation suggestions including barriers, reducing the volume of the reversing alarms on vehicles and insulation to the main work building.
24. The application was considered under delegated powers by a Council planning officer. The planning officer’s report included information on the relevant national and local policies which stated permission would not be granted for various types of development if they had an adverse effect on neighbouring residents.
25. The report detailed objections from residents including one relating to current noise and disturbance from the site which the objector considered would increase if the application was approved.
26. The report included a detailed analysis of the working hours at the site, past and continuing breaches of these hours by the Business and an ongoing enforcement investigation. The planning officer noted it was important to clarify the legal position of enforcement before determining the application. Therefore, they had carried out investigations and the Business had submitted a signed affidavit which stated the planning conditions restricting working hours attached to a previous planning permission have been continuously breached for over 10 years.
27. The planning officer noted enforcement was no longer possible because the working hours condition had been breached for over 10 years. In addition, the Business had stated in its application that the proposed works would result in a reduction in working hours and would therefore have a positive impact on noise.
28. The report contained the consultation response from an Environmental Health Services (EHS) officer, Officer 1, which raised no objections subject to the inclusion of planning conditions to restrict hours of work across parts of the site and the submission, agreement and implementation of a noise management plan.
29. The planning officer recommended approval with conditions which included those recommended by Officer 1 relating to hours of work and the noise management plan.
30. The Council granted planning permission.

Abatement Notice

31. The Council received a noise nuisance complaint about the Business which it investigated. Following this investigation, the Council issued the Business with an abatement notice, giving it 6 months to abate the nuisance.
32. Mr X was unhappy and complained to Council. He said:
1. the NIA carried out by consultants did not reflect the true level of noise produced on site as some machinery was not operational during the assessment. Mr X said he informed the Council of this but it still granted planning permission;
2. the Council granted planning permission despite knowing the site would cause a statutory noise nuisance;
3. the Council had allowed the Business too long to implement the mitigation measures in the NIA and the mitigation measures should have been attached as conditions to the grant of permission; and
4. the Council should reduce the working hours at the site until the noise nuisance had been abated.
33. The Council responded and said:
1. The planning officer had regard to the relevant local policies. They had consulted with officers from the relevant Council departments. In relation to the NIA, the Council said “In this matter the [Officer] who is qualified to interpret noise assessments, examines the robustness of the assessment to ensure it is suitable for the location based on guidelines within the [Council’s technical advice note]. If his assessment concludes that there is currently or will be a significant impact, this does not automatically mean that an application will be refused… consideration will be given to what, if any mitigation, can be put in place to offset the potential impact”. The investigating officer concluded the officer made appropriate enquiries and considered the relevant information and there was no fault in the way he scrutinised the application;
2. when the application was considered by planning, a statutory nuisance had not been established. In addition, the Council said it was not the role of the Council acting as the Planning Authority to identify or remedy an existing noise issue. The Planning Officer recommended conditions to allow the Planning Authority to keep control of the development and these were in line with the ones recommended by the relevant Council department. The investigating officer stated he had discussed with the relevant department why the mitigation measures were not imposed as pre-commencement conditions. The department had replied to say it “deemed a noise management plan was preferable to designing specific conditions that could fail the tests of being reasonable, necessary and relevant to the development, thus rendering them unenforceable”;
3. the period to abate the nuisance must be realistic as an abatement notice can be appealed if the period is considered unreasonable. The officer, in considering the works potentially required and the situation with Covid19, considered the time period reasonable. The Council explained there was no statutory maximum timescale and the officer could have given longer; and
4. the Council said there was no requirement in law to specify how the noise nuisance should be abated.
34. Mr X remained unhappy and complained to the Ombudsman.

My findings

Planning complaints

35. Before it made its decision to grant approval, the planning officer considered the application, relevant policies, statutory consultee comments and comments from the public, including concerns about noise. The officer’s report was comprehensive and considered the relevant issues, coming to a conclusion on each of these.
36. The relevant Council officer assessed the NIA against the Council’s technical advisory note and in their professional judgement decided the NIA was to industry standard and fit for purpose. The officer decided pre-commencement conditions were inappropriate. They recommended conditions to address the impact of noise to enable the Council to maintain control of the development. The Council followed the process we expect and so there was no fault in the Council’s actions or way it made its planning decision.
37. Mr X disagrees with the judgment of the planning officer. We are not an appeal body and providing the Council has followed the correct decision making process, as it did in this case, it is free to make any decision it chooses – only applicants have the right of appeal if they disagree with the planning judgments that were made during the process.

Noise nuisance complaints

38. Following a complaint about noise nuisance, the Council investigated and issued the Business with an abatement notice.
39. The abatement notice gave the Business 6 months to abate the noise so it was no longer a statutory nuisance. In making a decision about timescales, the Council acted appropriately when it took into account relevant legislation, the amount of work required by the Business and the Covid19 situation. There was no fault in the Council’s actions or how it made its decision.
40. If Mr X disagrees with the Council’s judgements, he can take legal action herself. If the developer/landowner causes nuisance to their neighbours, they may be vulnerable to private legal action requiring them to take action to stop it or to pay compensation for protective measures.
41. Mr X told me he believes the Council officer are biased towards the Business.
42. I have examined the emails between the Council and the Business. I have also spoken to officers about their actions. There was no bias in the actions of the officers. They acted in line with their duties. There was no fault.

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Final decision

43. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman