Summary: Mr B complains of noise nuisance. The Environmental Health department investigated the noise nuisance and acted to abate a statutory noise nuisance. Although no longer a statutory nuisance, the noise continues to breach planning conditions. The Council’s planning department delayed telling Mr B it was taking no action on the breach of planning condition to control the noise. There is no fault in the Council’s decision it is not expedient to take enforcement action. Its failure to tell Mr B of its decision has caused some frustration, and unnecessary time and trouble to Mr B in pursuing matters. The Council will apologise.

The complaint

1. The complainant, who I will call Mr B, says the Council has failed to properly investigate, and act on, concerns about noise nuisance and vibrations from a neighbouring business. Mr B says the Council has not kept him informed of its investigation, and feels it has been reactive rather than proactive, only acting when he or others contact it to complain. Mr B feels the Council has not done enough to investigate the nuisance, for example only visiting for brief periods of time, and has used the wrong guidelines on acceptable limits. Environmental Health have passed the concerns to planning, who take no action and have been rude in correspondence.
2. Mr B cannot fully enjoy his home and garden due to the constant low-level noise and vibration. During the working hours he can only use half of his house, where the sound and vibration is not as bad. It causes stress, which the Council’s delays and inaction has compounded. Mr B has found his interaction with the Council frustrating and not helpful. Mr B is aware neighbours have had cracks appear in their houses, so he worries about the possible structural impact on his house.

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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 considered:
• Information from Mr B, including during a telephone conversation.
• Information from the Council in response to my enquiries.
• Information available on the Council’s website about the relevant planning application.
• The National Planning Policy Framework.
7. Mr B 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

8. Mr B lives near a business. In August 2018 the business installed a new piece of equipment, which Mr B says changed the noise and vibrations the nearby residents experience.
9. The business has an established use, and the introduction of the new piece of equipment does not change the use in planning terms.
10. The business installed the new piece of equipment in a new building; it did not have planning permission for the building. The Council asked the business to apply for retrospective planning permission. The Council granted permission in October 2019 but attached certain conditions to try to control and manage the noise to protect nearby residents.
11. As well as the Council’s planning department, its Environmental Health department was also involved to investigate whether the noise nuisance amounted to a statutory nuisance. The planning department also rely on Environmental Health’s investigations to establish any breach of planning conditions.
12. The Council found between August 2018 and March 2020 the business was causing a statutory noise nuisance. The Council served abatement notices on the business. The Council and the business agreed measures the business could take to reduce the noise from the piece of equipment. This action has resulted in the noise no longer amounting to a statutory nuisance. Mr B confirms the noise is not as bad as it was at the start but is still impacting him daily.
13. Mr B disagrees with the way Environmental Health investigated, for example he thinks it should have carried out longer visits to assess the noise as it can vary throughout the day. Mr B says the Council should consider factors such as the nature of the noise and the long duration, not just decibel levels. Mr B also says the Council has not investigated the vibrations because it does not have the right equipment.
14. The Council explains it follows World Health Organisation guidelines for investigating noise issues, and relevant British Standards documents. It explains it is difficult to monitor this type of noise over long periods, because other noises are often higher than the noise being monitored and affect the results. The Council visited 16 times to measure the noise, both internally and externally, and is confident it has enough information to reach its decision. The Council says it felt the ground for vibration, but no obvious vibration was felt. It noted oscillation of water in a glass inside one home but using the officers professional experience did not feel this was significant. The Council says if it had considered it necessary it would have hired equipment to measure the vibrations.
15. The Environmental Health department says although the measurements it took were below statutory standards for a finding of noise nuisance, they breached the planning conditions. Environmental Health shared this information with the planning department in April 2021.
16. The planning department conditions are for the noise emitted from the piece of equipment to be within a certain level. For the measures detailed in a noise impact assessment and mitigation scheme report to be implemented in full. And for an acoustic report to be submitted to the Council and agreed in full. The Council has not answered whether it has discharged these conditions; it appears not. The chronology the Council has provided shows its last contact with the business about the planning conditions was in May 2021 when the business was challenging the enforceability of the conditions.
17. In April 2021 the planning department told Mr B the Council would have to push the business for it to meet the imposed conditions. If this fails, the option for planning would be to serve a Breach of Condition Notice (BCN) with requirement for the business to comply with the required conditions. The BCN would not stop the business from working and operating the piece of equipment.
18. The Council says it prepared a BCN but realised the condition sought to restrict operation of a machine that does not require planning permission, the BCN only indirectly related to the works requiring planning permission which were the changes to the building. The Council also considered that taking enforcement action could worsen the noise and vibrations residents experience. The business could reduce the size of the building back to the original, and in doing so would have the machine on the floor rather than on a raised platform, and that would make the noise worse with no recourse to planning. The Council decided it was not expedient to take any further action.
19. The Council has not evidenced when or how it reached the decision not to take any action on the planning breaches, or that it told Mr B. The Council says it will re-visit how it communicated this to the relevant parties as it should have clarified no further action is proposed under planning powers.
20. The Council has correctly advised Mr B that any damage to his property is caused by the actions of the business, and he can pursue a civil claim against the business.

Was there fault causing injustice?

21. I must now consider whether there was fault in the Council’s processes, which has caused an injustice to Mr B.
22. The Council’s Environmental Health team reached its decision following site visits and noise monitoring by professional officers. Although Mr B disagrees with the process and decision, I cannot question or criticise the decision the Council has reached; it has followed the correct process to make its decision.
23. There is a range of ways of tackling alleged breaches of planning control, and local planning authorities should act in a proportionate way. The Council’s planning department has discretion to take enforcement action when it regards it as expedient to do so.
24. The Council has decided it is not expedient to act on the planning breach regarding the noise levels. This is a decision it is entitled to take, and it has explained its reasons. However, there does seem to be delay in the Council reaching this decision, as there is no evidence when it made the decision. I would expect the Council to keep clear records to show how and when it has decided on key actions. The Council has also confirmed it should have told Mr B, and it failed to do so.
25. The delay, or failure to keep accurate records, has not caused any significant injustice as the Council is taking no action. The Council’s failure to communicate its decision has meant Mr B has been frustrated at what appeared to him as a lack of action by the Council, and has had unnecessary time and trouble pursuing matters.

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Agreed action

26. To acknowledge the impact of the identified failings, the Council will apologise to Mr B for its failure to inform him its planning department would take no further action.
27. The Council should complete the apology within one month of the Ombudsman’s final decision and provide evidence of its compliance to the Ombudsman.

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Final decision

28. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Mr B of the delay.

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Investigator's decision on behalf of the Ombudsman