Summary: Miss C complained about the Council’s response to her reports of noise nuisance and planning breaches at a neighbouring development site. Miss C says her family suffered noise nuisance, disturbance and loss of privacy from the development during a stay at her property and she could not let the property because of the continuing disturbance. We have found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Miss C, complains the Council failed to properly investigate or take appropriate action in response to her reports of noise nuisance and planning breaches at a neighbouring development site. In particular, Miss C says the Council failed to ensure the developer fenced off a tree protection zone before starting work as required.
2. Miss C says because of the Council’s fault she and her family suffered noise nuisance, disturbance and loss of privacy from the development during a stay at the property and the developer has destroyed an established hedge and failed to provide a landscaping scheme as required. Miss C also says she could not let the property because of the continuing disturbance and has lost £6,250 in rental income and suffered unnecessary distress.

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The Ombudsman’s role and powers

3. 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)
4. 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 read the papers provided by Miss C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Miss C with third party details removed. I have explained my draft decision to Miss C and the Council and provided an opportunity for comment.

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What I found

Background and legislation

Statutory nuisance

7. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
8. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises

9. 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.

10. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
11. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
12. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
13. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
14. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
15. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
16. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82 of the Environmental Protection Act 1990.

Planning enforcement

17. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.
18. Section171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

19. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
20. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.

Relevant planning history

21. The Council gave planning permission subject to conditions for a small housing development in 2017. One of the conditions required the approval and implementation of a scheme to safeguard those trees to be retained on the site. The Council discharged the condition relating to tree protection in 2018.

Key events

22. Miss C owns a property near the development site which is normally let out. Miss C and her family live elsewhere although they spent a short period over the Christmas period at the property which Miss C described as partly a maintenance visit.
23. Miss C reported noise from generators on a nearby building site to the Council on 12 December 2019. The Council telephoned Miss C on 13 December who explained she did not live at the property which was currently empty but she was trying to let the property. The Council explained a person at the property needed to be affected by the noise for it to count as a statutory nuisance and the impact of the property being empty.
24. The Council visited the site the same day. The developer advised the generators were due to be removed as electricity was being connected to the site which was likely to take place by the New Year. The Council telephoned Miss C to provide an update following the visit. The Council explained as well as the requirement for someone at the property being affected by the noise for it to count as a statutory nuisance it also considered the building site was operating reasonably within normal hours and there was no unreasonable noise. 
25. Miss C contacted the Council on 16 December to report noise from a generator during the day and concerns about hedges and shrubs being removed on the site and the developer not complying with a planning condition relating to a tree protection area. The Council received a separate report from a third party about the erection of a boundary fence. The Council noted during a visit in December that the fencing for the tree protection area was not in accordance with the approved plan.
26. The Council acknowledged Miss C’s report on 2 January 2020. This acknowledgment referred to both the boundary fence issue and the alleged breach of the planning condition relating to tree protection.
27. Miss C made a further report of noise from the from building works on 2 January.
28. The Council contacted the site owner and agent. The Council visited the site again on 3 January 2020.
29. Miss C contacted the Council on 7 January to explain she had not reported the boundary fence.
30. The Council visited the site on 16 January and noted both boundary fencing and tree protection fencing on site. The Council sought a plan to show where the missing tree protection fencing was on site.
31. The Council received an additional report about the boundary fencing on 17 January from another resident.
32. The Council provided an update to Miss C on 24 January to say it had visited the site and noted the planning breaches and was working with the developer to address these. Miss C sought further information at the end of January. The Council provided a more detailed account of its planning enforcement actions which remained ongoing to Miss C in early February. The Council has provided details of its contact with the developer and their agent to the Ombudsman.
33. The Council emailed Miss C on 10 February to confirm the outcome of her noise report. The Council confirmed its view that there was no unreasonable practices or hours of operation at the site and that there could not be a statutory nuisance when the property was empty.
34. Miss C contacted the Council on 10 February about a container being placed within the tree protection area and provided photographs. The Council confirmed the relevant planning condition requirements and its visit in December which had identified the fencing was not in accordance with the approved plan. The Council confirmed it was due to revisit the site.
35. Miss C contacted the Council on 12 February seeking further information. The Council responded on 13 February to confirm there were no planning conditions relating to hours of working or noise at the site.
36. The Council met the developer’s agent at the site in early March and noted some works had started to address the planning breaches. A further visit was agreed for 17 March to check full compliance with the tree protection measures. The Council also advised that to keep any boundary fencing above one metre would require planning permission and a retrospective application. Alternatively, the fencing could be reduced to 1 metre under permitted development allowances. The Council provided an update to Miss C on 5 March.
37. The developer confirmed on 9 March that it would submit a planning application to amend the boundary fencing and that works were continuing in relation to the tree protection area and this would be completed by the deadline of 17 March.
38. The Council explained to Miss C that the site visit of 17 March had not taken place due to officer illness and it was not clear when this could be rearranged due to COVID-19 restrictions. The Council noted at the most recent site visit works had started and the site cabin had been relocated. The Council contacted the developer to check if work was continuing at the site and to ask for photographs.
39. The Council contacted Miss C on 24 March to confirm the developer had replaced the tree protection fencing and removed the site cabin from the tree protection area so that element of the enforcement investigation was now satisfied. The Council explained there was an ongoing issue about the boundary fencing which required planning permission. The Council also advised Miss C that the hedges and shrubs that she reported as being removed had not been protected.
40. Miss C subsequently contacted the Council about a fallen tree. The Council visited the site and provided a detailed response towards the end of June about the relevant planning conditions and the approved plan for tree removal and replacement. This did not show the shrubs behind Miss C’s property and the Council explained it did not consider the removal of these to be a breach of planning control.
41. The Council visited the site on 14 July and noted the boundary fencing remained in place and the tree protection fencing was in place and the site cabin had been removed from the tree protection area. The site was not operational at that time.
42. Miss C contacted the Council on 3 September about its response to her reports and about the impact of the development on her ability to rent out the property seeking compensation. The Council responded on 8 September to explain aspects of the enforcement investigation remained ongoing but the site was not operational and it would provide further updates as the case progressed. The Council confirmed on 10 September that it had been in contact with the developer and a new contractor had not yet been appointed but the Council would meet the contractor at the site when works were due to restart.
43. Miss C sought an update at the end of September. The Council responded in early October to confirm development had not recommenced on site. The Council visited the site on 3 November and confirmed work had not restarted and the protective fencing remained in place.
44. Miss C sought an update in early February 2021 and the Council confirmed work had still not restarted on site. The Council has confirmed the planning enforcement case remains ongoing for the unauthorised boundary fence and the implementation of the landscaping scheme. The Council has explained that landscape mitigation along the boundary between Miss C’s property and the development is planned but not yet implemented as the development has paused and is not complete. The Council understands the developer has ended his arrangement with the original contractor and there is no activity on site which is locked. The Council has explained that the developer is cooperating with the planning enforcement investigation but until a new contractor is appointed to complete the development it cannot conclude the enforcement investigation and secure completion and compliance with all the planning conditions. The Council has also explained it does not consider there to be any current planning harm.

My consideration

45. The Council has provided evidence it responded to Miss C’s reports of noise and took appropriate action including visiting the site. The Council provided its reasons to Miss C for its decision the noise did not constitute a statutory nuisance. This was a decision the Council was entitled to reach and I have seen no evidence of fault in its decision making process.
46. Miss C has told me she found a particular telephone call with the Council about the noise to be dismissive of her concerns and she felt unfairly judged as a second home owner. Whilst I cannot now comment on the tone of a telephone conversation some time ago, I have found no evidence the Council dismissed Miss C’s noise report. It was appropriate for the Council to explain why the property being empty affected its assessment of whether a statutory nuisance was occurring. Nevertheless, the Council visited the site and found it to be operating within normal hours and did not consider the noise to be unreasonable.
47. I have seen no evidence of undue delay or other fault in the Council’s response to Miss C’s noise reports. Although the Ombudsman considers it good practice for councils to advise people of their private right of action under the the Environmental Protection Act 1990, I accept this may not have been appropriate in this case given the property was normally empty which would affect any such claim.
48. Turning to Miss C’s reports of alleged breaches of planning control at the site, I should explain that councils have no duty to monitor development. They are dependent on members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate. We cannot investigate the actions of the developer only the response of the Council to Miss C’s reports.
49. I am satisfied based on the evidence provided, that once the Council was aware some of the planning conditions had not been complied with it took appropriate action. This included visiting the site and contacting the developer. In terms of the issues reported by Miss C, the Council worked with the developer to ensure items were removed from the root protection area and protective fencing erected in line with the plans approved when it discharged the relevant condition. There was a slight delay in providing Miss C with a response about the loss of shrubs and hedging but I do not consider the delay to be excessive or to constitute fault in the circumstances of any planning harm likely to arise. The more recent issue about the required landscaping remained ongoing at the time of the Council’s response to the Ombudsman.

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Final decision

50. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman