Summary: Miss X complained about the Council’s handling of her reports of problem noise, particularly its planning enforcement investigations. We found the Council at fault for not keeping in touch with Miss X about its enforcement investigations and it agreed to apologise for the distress this caused Miss X.

The complaint

1. Miss X complained about the Council’s handling of her reports of breaches of planning control because it:

• did not communicate with her effectively; and
• failed to properly investigate her concerns.

2. Miss X said noise from the continuing breaches badly affected her home life, disrupted her sleep and was extremely stressful. Miss X wanted the Council to visit the site, talk to her about the problem, and deal with the noise.

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The Ombudsman’s role and powers

3. 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)
4. 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:

• considered Miss X’s written complaint and supporting papers;
• talked to Miss X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared the Council’s comments and redacted supporting papers with Miss X; and
• shared a draft of this statement with Miss X and the Council and considered any comments received before making a final decision.

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What I found

Background

Construction noise

7. Councils have powers under section 60 of the Control of Pollution Act 1974 to issue notices controlling how a contractor runs a building site (‘section 60 notices’). A notice aims to reduce noise from building works that can affect neighbouring properties. A notice may include limits on noise levels and working hours. Contractors may appeal against a section 60 notice but once it comes into force, a failure to comply with it is a criminal offence.
8. The Council also has a Code of Construction Practice that it applies to construction sites. The Code sets out the standards and procedures for contractors to follow when carrying out development in its area. The Council’s officers inspect construction sites to ensure contractors follow the Code.

Statutory nuisance

9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance may include noise from premises and smells from industry, trade or business premises. To be a ‘statutory nuisance’, the matter complained about 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 and assess the evidence. Officers will consider factors such as the timing, duration, and intensity of the alleged nuisance and use their professional judgement to decide whether a statutory nuisance exists.
11. If satisfied a statutory nuisance is happening, has happened or will happen in the future, councils must serve an EPA section 80 notice, known as 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.
12. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. People can appeal an abatement notice but once it comes into force, a failure to comply with it is a criminal offence. It may be a defence against a notice to show the responsible person has taken reasonable steps to prevent or minimise a nuisance.

Planning enforcement

13. Carrying out development without the necessary planning permission is a breach of planning control. Councils should investigate reported breaches but planning enforcement is discretionary. The Government’s National Planning Policy Framework (NPPF) says councils should act proportionately in responding to suspected breaches of planning control. And the Government’s National Planning Practice Guidance (PPG) encourages councils to resolve issues through negotiation with developers.
14. The Council has a Local Enforcement Plan (LEP) that reflects the NPPF and PPG guidance and sets out which reports are prioritised for action. The LEP says the Council aims to appoint an enforcement officer and give their name to the person reporting a breach within two working days. And the enforcement investigation will start within seven working days. The LEP gives no time limit for an investigation as resolving a case depends on its circumstances. But the person reporting a breach will receive an update within five weeks and on key events and be told when and why a case is closed.
15. Planning enforcement is also time limited. For example, built development usually becomes immune from enforcement action four years after completion.

Consideration of what happened

Introduction

16. My role was to consider whether the Council acted with fault in the eight months Miss X said it took to address her reports of problem noise. Miss X found the Council’s overall response unsatisfactory but particularly on planning enforcement. I therefore focused on what happened based on the Council’s three planning enforcement investigations. In doing this, I carefully considered all the information provided by both Miss X and the Council. However, I did not find it necessary to, and this statement does not, address every contact between the parties or each detailed matter raised in their correspondence.

Phase One

17. In December, Miss X reported a breach of planning control to the Council’s Planning Enforcement Team (‘PET’). Miss X’s report referred to noisy drilling and said, ‘they also leave a noisy ventilator on all day’. The Council assessed Miss X’s report as about construction noise. The Council redirected the report to its Construction Management Team (‘CMT’) as they were responsible for the monitoring construction sites. The Council closed Miss X’s planning enforcement case.
18. I found no fault in how the Council acted and reached its decision to ask its CMT to investigate Miss X’s concerns. Its assessment and interpretation of Miss X’s description of the problem noise as about building works was understandable and sustainable. And it was for the Council to decide which team was best able to investigate Miss X’s report.
19. The evidence showed the Council sent Miss X two emails, in quick succession, the day after she reported the problem noise. One email was an automated ‘planning breach report’ telling Miss X the Council had closed her planning enforcement case. The other email referred Miss X to an attached letter, which letter said the CMT was investigating her report. Miss X provided evidence she received the emails. The evidence also showed the Council attached its letter, about transferring the case to its CMT, to its email. While it is unfortunate that Miss X appears not to have seen the letter, I did not find fault by the Council in how it communicated its decision to Miss X.
20. Although Miss X was unaware of what was happening, the Council’s CMT started investigating the week after she reported the problem noise. The Council said it would normally investigate construction noise more quickly but pointed to the COVID-19 emergency and the closeness to Christmas. However, its CMT officer visited the site, which was a building with several tenants. The officer found construction works taking place in part of the building. The officer spoke to the landlord and contractors about the Council’s Code of Construction Practice and they both denied breaching the Code’s working hours. The officer also gathered information about air conditioning equipment in the building, which the landlord said had been in place for more than 10 years and serviced regularly.
21. Meanwhile, Miss X contacted the Council about it closing her planning enforcement case while noise was continuing. The Council’s Planning Enforcement Team (‘PET’) and Noise and Nuisance Team (‘NNT’) knew of the contact. The NNT responded, making a same day visit to the building. The NNT officer noticed an air conditioning unit in the building basement and, after completing a COVID-19 risk assessment, visited Miss X. While finding noise from the unit audible in Miss X’s home, the NNT said it was not a statutory nuisance. The NNT also contacted the landlord and discussed steps to reduce noise from the building. The steps included servicing the plant and machinery, fitting silencers, and adding timers to switch machinery off overnight.
22. The Council’s NNT and CMT officers then discussed the case. The Council issued a section 60 notice. The notice included a limit on construction working hours at the building from 8:00am to 6:00pm Monday to Friday. The Council’s records showed a CMT officer spoke to Miss X the next day and she said, “the noise was better”. Miss X denies this call took place.
23. It took the Council a month, from Miss X reporting problem noise, to issue the section 60 notice. This would likely have seemed a long time to Miss X. However, while the Council recognised it might have responded more quickly, I did not find avoidable delay in the CMT investigation amounting to fault. Indeed, if the PET had investigated, under the LEP the Council had seven days to start an investigation. I also saw no contemporaneous evidence that construction work continued after 24 December until the New Year. The evidence showed the Council took suitable steps to investigate and assess the noise to reach informed decisions to find no statutory nuisance but to issue a section 60 notice. I therefore found no fault in how the Council dealt with Miss X’s first report of problem noise.

Phase Two

24. However, in the weeks that followed, Miss X made four further reports to the Council about intermittent noise between Monday and Friday. The Council’s records showed officers telephoned Miss X in response to her reports, although they were not always able speak to her or leave a message. The Council considered Miss X was describing a fan needing maintenance. Miss X thought the noise came from equipment used by a tenant in the building. The Council had contacted the landlord for an update on fitting silencers and timers when Miss X reported installation of a new, noisy and ‘very large ventilator’.
25. The same day as Miss X’s report, a NNT officer visited the building but could hear no noise and found the gates locked and no one on site. The Council’s records showed the officer also tried, unsuccessfully, to contact Miss X during the visit but only able to speak to her later after the visit. Miss X said the Council needed to assess the noise from the rear of the building, which was enclosed by other buildings. Miss X also sent the Council photographs and a video recording of the new equipment. Miss X thought the equipment belonged to a new tenant as the noise was during the day but not evenings or weekends. The Council let Miss X know it was asking the landlord to identify the tenant responsible for the equipment in her photographs and video.
26. About 10 days later, Miss X told the Council she could no longer see the new equipment, but noise remained a problem. The NNT contacted the PET referring to Miss X’s concerns about a noisy condenser unit that might be linked either to a new tenant or the construction works at the building. The NNT asked the PET to open a planning enforcement case and updated Miss X on its request. The PET opened an enforcement case into the alleged unauthorised installation of a condenser unit. The PET wrote to Miss X with the case reference number, the enforcement officer’s name, and said it would update her on the investigation within five weeks. The Council said its PET asked the landlord to apply for planning permission for any unauthorised units or remove them within 28 days. The Council said it also asked the landlord not to use any unauthorised unit without getting planning permission. And that any application for planning permission would need an acoustic report.
27. Meanwhile, the NNT had discussed the problem noise with Miss X and again contacted the landlord about accessing the rear of the building. Miss X then sent the NNT further recordings of the problem noise. Nine weeks after Miss X first reported problem noise, the NNT, having reviewed all the information they now held, issued an abatement notice. The notice required the landlord to ‘prohibit the occurrence’ of noise amounting to a statutory nuisance from the condenser units. The notice gave the landlord 42 days to comply. The Council contacted Miss X the next day and noted she said, “the unit had been turned off since the service of the notice…”.
28. Over the following 42 days, Miss X made five further reports of noise from the air conditioning units. An NNT officer also made three visits. On two occasions, the Council carried out COVID-19 risk assessments enabling a senior NNT officer to assess the noise from inside Miss X’s home. The officer found no noise amounting to a statutory nuisance. The officer also found two ‘old looking’ condenser units at the building, one of which was in use. The contractors said a third unit was not yet active. The officer noted that if all the units were in use “the levels of sound may be louder”. The Council also told Miss X that its NNT officers would want to witness a breach of the abatement notice after the compliance date before taking further enforcement action.
29. Meanwhile, five weeks passed since the Council opened its second planning enforcement investigation. The Council continued to contact the landlord about ensuring the units were off at night and over weekends. The Council’s records also showed its NNT officers responding to contact from Miss X.
30. Six weeks after opening its second planning enforcement case, the PET received a photograph from the landlord’s agent. The photograph was said to show the machinery understood to be causing noise had been removed. The Council’s PET wrote to Miss X about removal of the unit and said it was closing its planning enforcement case. Miss X replied immediately saying nothing had changed and asking the PET not to close the case. The PET replied, saying it was sorry the breach was not resolved and would open a new planning enforcement investigation.
31. A few days later, the compliance date for the abatement notice passed.
32. Miss X complained about the PET. In responding, the Council accepted it had taken time to investigate the problem noise, which had concerned construction works, a new unit and existing units at the building. The investigations had also included the CMT, NNT and PET. It was satisfied officers had kept in touch with Miss X but agreed the PET could have ‘checked in’ more often to reassure Miss X it was still investigating. The Council apologised and said had reminded officers of the importance of keeping in touch with residents throughout investigations.
33. The time it took the Council to issue the abatement notice is likely to have been stressful and frustrating for Miss X. However, the Council needed to gather evidence to assess and to then reach an informed view on whether there was a statutory nuisance. Here, the Council contacted the landlord for information (including the source of, and responsibility for, the noise), liaised with Miss X and considered her recordings, and made site visits. These are steps I would expect a council to take to investigate an alleged statutory nuisance. And, here, the evidence showed the Council took timely, appropriate and proportionate action to reach its decision to serve an abatement notice. The Council also continued to liaise with both Miss X and the landlord during the 42 days for compliance with the notice. I therefore found no evidence the Council acted with fault in responding to the alleged statutory noise nuisance.
34. The Council missed, by a week, its five-week time target for updating Miss X about its planning enforcement investigation. In writing to Miss X after six weeks to say it was closing its investigation, it relied on the landlord’s agent information, including a photograph. On balance, given the circumstances, I did not consider the Council’s acceptance of the agent’s information meant it acted with fault. Indeed, the source of the continuing noise Miss X reported was not necessarily the machinery said to be removed from the building. A visit by the NNT had found noise from an ‘old’ unit at the building and that a ‘new’ unit might not be active. I found the Council’s response (see paragraph 30), suitably and proportionately addressed any injustice to Miss X arising from any failure to update her in line with the LEP.

Phase Three

35. In the month after the compliance date for the abatement notice, Miss X made seven noise reports. The Council’s records showed its NNT responded by returning Miss X’s telephone calls (although it was not always able to speak or leave a message for her). A Council NNT officer also made four visits, including three to Miss X’s home, having carried out COVID-19 risk assessments. The officer found no noise amounting to a statutory nuisance. Miss X was not satisfied when the Council said it could not further enforce the abatement notice as its NNT officers had not witnessed noise amounting to a statutory nuisance. So, the Council offered to arrange a visit from another senior NNT officer to provide a second opinion on the noise. The Council’s NNT made two further visits to the building in the following month finding no statutory nuisance.
36. Meanwhile, the PET was investigating the units that remained at the building. The Council had confirmed to Miss X the PET were investigating but accepted it delayed writing to her formally about opening the third investigation. The Council told Miss X the PET needed to find out when the air conditioning units were installed because formal enforcement action was not possible after four years.
37. The Councils NNT and PET continued to keep in touch with the landlord. The landlord said their engineers were satisfied the units were working correctly and not producing excessive noise. The landlord again confirmed the units had been in place more than 10 years. However, the PET served a legal planning contravention notice on the landlord and asked for information about the units. (A failure to reply to such a notice, or reply with false or misleading information, is a criminal offence.) The PET told Miss X about the notice and the date given for the landlord to reply. The PET said they would update Miss X when they received a response.
38. The Council’s PET and NNT officers then met with representatives for the building. The Council’s records of the meeting referred to visits finding no statutory nuisance but only one unit was in use. If all the units were in use, for example once COVID-19 restrictions ended and all tenants returned to the building, a statutory nuisance would likely take place. The Council’s records showed the landlord agreed to provide acoustic screening for the units. It was about five months since Miss X had first reported problem noise.
39. Shortly after the meeting, Miss X contacted the Council twice to report noise. The Council returned Miss X’s telephone calls and made a night visit to the building but found no lights or noise. Three weeks later, Miss X reported a noise problem. No senior officer was available to carry out a COVID-19 risk assessment for a home visit. And the Council’s records showed Miss X declined a visit by an officer that could assess noise at the entrance to her home.
40. Over two months passed and then Miss X contacted the Council again. An NNT officer tried, unsuccessfully, to return Miss X’s call and then emailed asking if noise from the units had returned. The PET wrote to Miss X and told her it had closed the third planning enforcement investigation. The PET explained the Council was satisfied on the information it held, including the response to the planning contravention notice, the units were lawful and immune from enforcement action. This contact came about four months after the PET had told Miss X it had served a planning contravention notice on the landlord. The NNT also closed its noise case, having sent Miss X a second email, but getting no reply.
41. The Council’s PET did not keep in touch with Miss X during the third planning enforcement investigation despite assuring her it would in responding to her complaint. I found fault here. This further failure to keep in touch about planning enforcement issue, is likely to have caused Miss X added avoidable distress and frustration.

Conclusion

42. The balance of the evidence suggested work to the units after service of the abatement notice, including acoustic screening, suitably and substantively addressed the noise problem. The Council took about six months to achieve this outcome. Those six months will no doubt have been challenging and frustrating for Miss X. However, the Council took timely, appropriate and proportionate steps throughout those six months to investigate the various noise issues Miss X reported. But there was, as the Council accepted in responding to Miss X’s complaint, a failure to keep in touch with her on planning enforcement matters. The Council having accepted this and told Miss X it would keep her informed in the future, failed to do so during its third planning enforcement investigation.

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Agreed action

43. I found the Council failed to keep Miss X updated during its third planning enforcement investigation and this was likely to have caused Miss X injustice. To put this right, the Council agreed to send Miss X a written apology within 20 working days of this decision statement and copy it to the Ombudsman. I did not consider Miss X suffered any greater injustice as the third planning enforcement investigation found the building air conditioning units were immune from enforcement action.

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Final decision

44. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendation at paragraph 43.

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Investigator's decision on behalf of the Ombudsman