Summary: Mr X has complained that the Council has failed to take action to prevent his neighbour operating a car repair business from his home. We have not found significant fault in the way the Council has responded to his concerns.

The complaint

1. Mr X complains that:
• The Council has failed to take planning enforcement action or action under environmental health legislation against a neighbour who operates a car repair business near his home.
• The car repair business causes unacceptable noise and nuisance. He is disabled and finds it difficult to sleep at night. He has to sleep during the day but is disturbed by noise from his neighbour’s activities. He says his driveway is blocked by delivery vans and customer cars. He feels stressed by the activities of his neighbour and is worried about his safety because he had to gather information about his neighbour’s activities for the Council.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with an organisation’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

4. I have considered Mr X’s written complaint and supporting correspondence and discussed his complaint with him. I have made enquiries of the Council and considered its response. I have had regard to relevant legislation and guidance. I have also sent Mr X and the Council a draft decision and considered their comments.

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What I found

Legal and administrative background

Planning

5. Planning uses of land or “use classes” are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial.
6. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of “fact and degree” for the Council to decide.
7. Councils can take enforcement action if they find a breach of planning rules. However, planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach.

Environmental Health

8. Under The Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential “statutory nuisances”.
9. Typical things which may be a statutory nuisance include noise from premises or vehicles, equipment or machinery in the street.
10. 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.
11. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers, generally an environmental health officer (EHO) to gather evidence. They may 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.
12. When the evidence-gathering process is complete, the EHO(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance, and will use their professional judgement to decide whether a statutory nuisance exists.
13. If the council is satisfied there is, was or will be a statutory nuisance, it must serve an abatement notice, which requires the person responsible to stop or limit the activity causing the nuisance. Failure to comply can lead to prosecution.
14. If the issue complained about is causing a nuisance but is not a statutory nuisance, councils can decide to take informal action. They may write to the person causing the nuisance or suggest mediation
15. A member of the public can also take private action in the magistrates’ court under Section 82 of the EPA. If the court is persuaded there is a statutory nuisance, it can order the person(s) responsible to take action to stop or limit it.

What happened

Previous complaint

16. Mr X lives in a residential cul-de sac. He originally contacted the Council in 2015 or 2016. He said that one of his neighbours was running a car repair business from home, leading to noise, pollution from fumes, and blocked driveways.
17. The Council served a planning contravention notice (PCN) on his neighbour in September 2016 to request information about the activities on site. Mr X also provided diary sheets detailing his neighbour’s activities.
18. In February 2017, the Council decided not to take enforcement action, but did not communicate this decision to Mr X.
19. Mr X complained to the Council in March 2018 and, after he contacted the Ombudsman, the Council responded through its complaints procedures. The Council accepted there had been delay in dealing with his complaint.
20. The Council’s investigation concluded in July 2019. It found that:
• the decision not to take enforcement action in February 2017 was reasonable based on the evidence available at the time, but its planning enforcement team should write to Mr X to explain its decision;
• the planning enforcement team would reconsider its decision if further evidence was submitted, and Mr X should be given the opportunity to “undertake further monitoring” and submit further records for consideration;
• it should have directed Mr X to the noise nuisance team who could consider whether any noise disturbance might constitute a statutory nuisance.
21. Mr X then complained to the Ombudsman who, in August 2020, found that:
• although the Council felt that the activities at Mr X’s neighbour’s property were not a breach of planning regulations, it had not shown how it considered Mr X’s evidence of the increase in traffic or the disturbance caused to neighbours; and
• it had not considered the environmental health impact on Mr X.
22. The Ombudsman could not conclude that the Council would have taken enforcement action or found evidence of a statutory nuisance. But we asked the Council to pay Mr X £500 to recognise the uncertainty caused by its actions and the time and trouble to which Mr X was put.

Current investigation

23. In March 2020, while the Ombudsman’s previous investigation was ongoing, Mr X wrote to the Council saying that his neighbour was continuing to operate his business from home in breach of the then COVID-19 regulations.
24. The planning enforcement team (Planning Enforcement) responded to Mr X in April 2020. It explained that car repairs could be undertaken during COVID-19 but it would investigate a potential change of use. It asked Mr X to again keep a log of activity for four weeks with dates and times of vehicles being dropped / serviced / collected.
25. It also forwarded Mr X’s concerns about noise to the environmental health department (Environmental Health) and asked it to look into his complaint. It then told Mr X that it was awaiting a response from Environmental Health.
26. Mr X declined the request of keeping a log as he had previously kept a log without any positive result and felt intimidated by his neighbour, but said people were still coming into the cul-de-sac to pick up their cars.
27. In the absence of log sheets from Mr X, Planning Enforcement undertook five unannounced monitoring visits which did not provide any evidence of repairs being undertaken. It then wrote to Mr X in January 2021 to explain that it was planning to close the case.
28. Mr X reiterated the difficulty of him keeping log sheets, so Planning Enforcement proposed a virtual meeting to discuss matters. Mr X said he had no means of conducting a virtual meeting but would continue to correspond by post. He also provided registration numbers of vehicles which he said had been repaired.
29. In March 2021, Planning Enforcement said it was progressing checks on the registration numbers with the DVLA. However, it explained that, if based on the registration number alone, these checks may be denied and, even if supplied, of limited use as evidence. It asked Mr X to provide details of makes, models, location, activity and movement of vehicles. It also told him to report any noise concerns to Environmental Health.
30. Mr X contacted the Ombudsman and also started providing details of registration numbers and makers of vehicles. In a few cases there were references to noise, times and where vehicles were parked.
31. Planning Enforcement again asked Mr X to provide details of makes, models, location, activity and movement of vehicles. It also explained that it had prepared a PCN.
32. Between March 2021 and January 2022, Planning Enforcement undertook a further ten site visits without identifying evidence of activity which it considered sufficient to constitute a material change of use.
33. Mr X continued to provide details of numerous vehicle registration numbers and makes. In a limited number of those cases, he referred to noise, times, activities including repairs and where vehicles were parked. Planning Enforcement continued to ask Mr X to provide details of makes, models, location, activity and movement of vehicles. It also continued to advise Mr X to report noise nuisance directly to Environmental Health.
34. This pattern of communication has continued with the investigation still open.

My assessment

35. In responding to Mr X’s previous complaint, we explained that planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second.
36. The Council, as local planning authority, is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to notable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.
37. The Council has explained that the main test it is using is the judgement as to whether a material change of use has occurred. It says that could be evidenced by the nature and extent of activities (including for example whether complaints have been received from third parties).
38. The Council has set out its position as follows:

“The current situation is that [Mr X’s neighbour] does operate a car repair business from his home address involving his attached garage and front drive, but we have insufficient evidence of a material change of use.”

39. I have considered whether there has been fault in the way that the Council has investigated Mr X’s concerns and, if so, whether this has caused him injustice.
40. I note that Planning Enforcement considered that the number of vehicles described on Mr X’s diary sheets suggested that there may be an increased level of activity. It had considered serving a further PCN. However, despite undertaking 15 site visits, it did not find evidence which, in its view, indicated a material change of use. It did not therefore consider there were grounds to continue with the PCN. Given the lack of findings from its site visits, I see no fault in the Council’s decision not to continue with the PCN.
41. Planning Enforcement also told Mr X it was planning to contact the DVLA. However, in the great majority of cases the diary sheets that Mr X has provided do not contain sufficient details to allow officers to undertake further checks with the DVLA and would be of limited value as evidence. It has therefore asked Mr X several times to provide details of makes, models, location, activity and movement of vehicles to help the Council to gauge the level and nature of activity actually undertaken on site. I see no fault here.
42. As regards noise nuisance, I note that Planning Enforcement told Environmental Health of Mr X’s concerns about noise in April 2020, and Mr X sent a reminder to Environment Health in July 2020.
43. I appreciate that Mr X may have been expecting action and a response from Environmental Health after that point. However, it appears that Environmental Health closed the case because it could not undertake visits in 2020 due to COVID-19. It is not clear that Mr X was informed of this, and this would be fault. However, in March 2021, Planning Enforcement told Mr X he needed to report noise complaints directly to Environmental Health. Although Mr X has sent a reminder to Environmental Health more recently, he has not sent reports of noise nuisance despite the Council’s advice. I cannot therefore conclude that this has caused Mr X significant injustice.
44. In conclusion, it is not in dispute that Mr X’s neighbour is operating a vehicle repair business. However, it is for the Council to decide whether there has been a material change of use, based on the range of evidence available to it.
45. The Council has explained that the diary sheets submitted to Planning Enforcement do not contain sufficient detail and its own site visits have not revealed evidence to support a material change of use. Moreover, the Council has not received any complaints from any other parties.
46. Overall, I do not consider that there has been significant fault in the way the Council has responded to Mr X’s concerns. Given this, it is not for the Ombudsman to question the merits of the Council’s position to date.
47. It remains open to Mr X to provide the details requested in respect of activities on site, and to report any noise nuisance to Environmental Health as set out on the Council’s website (Noise complaints - Warwick District Council).

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Final decision

48. I have closed my investigation on the basis that there has not been significant fault in the way that the Council has responded to Mr X’s concerns.

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Investigator's decision on behalf of the Ombudsman