Summary: Mr X (and his neighbours) complain about the Council’s handling of noise complaints about commercial refrigeration units located near their homes since 2015. While some matters are too old for us to investigate, there is no evidence of fault in the Council’s handling of the planning enforcement case against the company that owns the offending units.

The complaint

1. The complainant, who I have called Mr X, complains on his own and his neighbours’ behalf about the Council’s handling of noise complaints about commercial refrigeration units located near their homes since 2015. Mr X says the Council has failed to act promptly on their concerns. He also feels the Council has not taken sufficiently robust action against the offending unit owners/occupiers. He wants the Council to take immediate action to have the offending units removed from the site. He also wants the Council to provide compensation to him and his neighbours for failing to act on their noise complaints sooner.
2. We have consent from Ms Q, Ms P and Ms R for Mr X to act as their representative in this complaint.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
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 an organisation’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. 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

7. I have spoken to Mr X and considered the information he has provided in support of this complaint.
8. I have considered the information the Council has provided in response to our enquiries.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Statutory Nuisance

10. Councils must investigate complaints about matters which could be a nuisance covered by the Environmental Protection Act 1990 (EPA). These include complaints about noise.
11. The council must decide if the nuisance substantially interferes with the complainant’s use of their property or if it is likely to injure their health. In other words, the council must decide if the noise is a statutory nuisance.
12. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
13. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. In deciding if a noise amounts to a statutory nuisance, the council must take account of factors such as the frequency, duration and characteristics of the noise. The assessment is not based on decibel limits. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
14. 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.

Planning Enforcement

15. Councils can take enforcement action if they find planning rules have been breached. But they do not have to take enforcement action just because there has been a breach of planning control.
16. Enforcement action is discretionary and Government guidance says it should be proportionate. Councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost-effective way of achieving a satisfactory outcome.
17. In deciding whether it is expedient to start enforcement action, the council can take account of several different factors including national and local planning policies, permitted development rights, whether the development is likely to be granted planning permission, and the need to achieve a balance between protecting amenity and permitting development which is acceptable.

What happened

18. This chronology sets out key events and does not cover everything that happened.
19. Company Z moved into a light industrial site near Mr X and his neighbours’ homes in August 2015. Ms Q made complaints to the Council shortly after this about the amount and timing of noise created by Company Z.
20. The Council’s Environmental Health Team considered Ms Q’s concerns and completed site visits. The Team concluded the level of noise being emitted by Company’s Z work and refrigeration units did not meet the threshold to constitute a statutory nuisance. This Team did however believe there may be a breach of previous planning conditions attached to the industrial site relating to noise and hours of working. The case was referred to the Council’s Planning Enforcement Team for further consideration.
21. In April 2016, the Planning Enforcement Team decided to issue a planning enforcement notice to the owner of the industrial site (Company B). The owner of the site was different to Company Z, who rented one of the units. Some time after issuing the enforcement notice, the Council decided to withdraw the notice against Company B. The Council felt it had extremely limited prospects of successfully enforcing against or prosecuting Company B because it was based overseas.
22. In December 2019, the Council issued a further planning enforcement notice. This time, the notice was issued against Company Z for planning breaches related to the placement of refrigeration units on the industrial site without planning permission. Company Z appealed against the enforcement notice and its appeal was dismissed in late October 2020. Following this appeal, Company Z had until late January 2021 to comply with the enforcement notice to remove the refrigeration units from the site.
23. The Council continued to correspond with Company Z throughout 2021 about the removal of the refrigeration units. Company Z removed the louder of the two units from the site in October 2021. The Council’s Environmental Health Team conducted two site visits. This Team determined the level of noise emitted from the remaining unit was unlikely to warrant further action from a statutory nuisance or planning enforcement perspective. Company Z turned off the remaining unit on 24 December 2021 and it was removed from the site on 7 January 2022.

Analysis

Mr X

24. Mr X moved into his home in December 2020/January 2021. This means he was not affected by any noise emitted by Company Z’s refrigeration units on the site prior to this date. I therefore cannot consider if Mr X has been caused any injustice by the Council’s action before December 2020.
25. Mr X complains the Council did not do enough to enforce the notice issued against Company Z. Case records from the Council show it started contacting Company Z before the compliance period expired in January 2021, to help ensure appropriate progress was being made to remove the refrigeration units from the site. The Council continued to correspond with Company Z throughout the time it sought to relocate premises.
26. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the organisation made.
27. I have considered the steps the Council took to in this case, and the information it took account of when deciding not to pursue formal enforcement action. There is no fault in how it took this decision, and I therefore cannot question whether the decision was right or wrong. The Council considered all the relevant information and then took a view to continue with an informal approach to enforcement as the most expedient and cost-efficient option in line with government guidance.
28. Mr X complains about the Council’s decision not to take action against Company Z for statutory noise nuisance. He believes the level of noise emitted by Company Z remained unchanged since the Council initially established there was a statutory noise nuisance in 2015. Mr X also believes the Environmental Health Officer who conducted the two recent site visits, failed to obtain measurements of the noise emitted from correct locations or at appropriate times of the day.
29. The Council’s records show the Environmental Health Team did not consider the noise emissions met the threshold to constitute a statutory nuisance in 2015. That is why the matter was referred to Planning Enforcement for action as a potential planning breach.
30. The most recent site visits by Environmental Health Officers were made to help the Planning Enforcement Team determine whether the noise being emitted by the remaining refrigeration unit created a sufficient impact on neighbour amenity to warrant continued planning enforcement action.
31. The assessments made by the Environmental Health Officers in this instance were subjective and based on their professional opinion of whether any planning breach had occurred. The decision whether or not to proceed with formal planning enforcement action remained with the Planning Enforcement Team. This was a decision the Council was entitled to make based on the information and advice it had received and I have no cause to question the merits of this where there has been no procedural fault.

Ms Q

32. Ms Q raised concerns with the Council about the noise emitted by Company Z in 2015 and the Council concluded its action in response to this in 2016.
33. Ms Q did not have any further contact with the Council about this matter between 2016 and the end of 2020, when Mr X started raising concerns with the Council on his own and his neighbours’ behalf.
34. I have decided not to look at earlier events for two reasons. The first is there is no evidence to show that Ms Q has raised concerns about the Council’s earlier handling (in 2015 and 2016) with the Council previously. If Ms Q was concerned about the Council’s response it is reasonable to expect her to have complained to it promptly. The second is that even if I set that aside, and exercised discretion to investigate Ms Q’s complaints about these issues, they are now significantly out of time to bring to us. The law says Ms Q should have complained to us within 12 months of becoming aware of the problem. There is no good reason for us to investigate her complaint about the older events now.
35. My findings for the remainder of Ms Q’s complaint which relates to the Council’s actions from the end of 2020 are the same as Mr X, in that I have found no evidence of fault.

Ms P and Ms R

36. Neither of these neighbours have made complaints directly to the Council about the noise emitted by Company Z’s refrigeration units since 2015. If they had concerns, they should have done so. It is too late to look at any complaints they have about older events now. That said, given I am already investigating Mr X’s complaint I feel it makes sense for all parties that I do not exclude Ms P and Ms R from my consideration of the more recent period (from 2020 onwards).
37. However, as with Mr X and Ms Q, I have found no evidence of fault in the Council’s handling that would justify me recommending the Council takes any remedial action.

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Final decision

38. I have completed my investigation and found no fault in the actions of the Council since 2020. The Council’s actions in relation to this issue before this date are now too late to bring to us for investigation.

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Investigator's decision on behalf of the Ombudsman