Summary: Mr X complained the Council failed to take enforcement action against his neighbour, who has developed and changed the use of the land, causing disturbance to his amenities. We decided not to investigate further at this stage, because the planning decision-making process is ongoing.

The complaint

1. Mr X complained the Council failed to take enforcement action against his neighbour who changed the use of their land, without planning permission. Mr X said the use causes him noise disturbance.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot yet show that any alleged fault has caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
4. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

5. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
6. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
7. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
8. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
9. Where there is a breach of planning control, such as developing or using land without planning permission or in breach of a planning condition, councils may take enforcement action.
10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
11. The planning enforcement process we expect is as follows. We expect councils to consider allegations and decide what, if any, investigation is necessary. If the council decides there is a breach of control, it must consider what harm is caused to the public before deciding how to react. Providing the council is aware of its powers and follows this process, it is free to make its own judgement on how or whether to act. Councils should keep adequate records of their decisions, including the details and background documents they relied on to make them.

Environmental Protection powers and planning decisions

12. Council environmental health or environmental protection officers have powers to control against nuisance, which might include pollution caused by noise, dust, smoke or odour.
13. For planning control of noise through conditions, the bar is set lower than it is for environmental protection control. Through planning conditions, councils can protect residential amenity at lower levels of noise than necessary for statutory nuisance under environmental protection powers.

What happened

14. Mr X reported several breaches of planning control to the Council on his neighbour’s land including a widened driveway, drainage works, a failure to demolish a building as part of an earlier planning permission, and an unlawful change of use of the land to run a business from the site.
15. Mr X said that noise from trucks delivering and collecting materials, and angle grinders used to cut paving slabs, caused a great deal of disturbance. Mr X said the business operated without any controls, seven days a week, bank holidays and early in the mornings.
16. The Council served a planning contravention notice and later invited the neighbour to submit a planning application so it could consider any changes to the use and development of the land against planning policy.
17. The neighbour submitted two applications. One for the change of use of the land and one for building a new house. The Council has not yet decided whether to approve or refuse these applications.
18. The Council’s environmental protection officers have been involved but have not found evidence of a nuisance. Mr X said this was because their visits were announced, and the neighbour ensured no work happened while environmental protection officers were on site.
19. The Council responded to an earlier draft of this decision to say it recently installed recording equipment on the site but found no evidence of a nuisance.
20. The Council’s planning officers can consult with environmental protection officers on likely noise impacts on residential amenity from the proposed use of the site before they decide the new planning applications.

My findings

21. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
22. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
23. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
24. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
25. I should not investigate Mr X’s complaint at this time because the planning decision-making process is ongoing. Mr X can submit his concerns about his neighbour’s use and development of their land, and the Council can consider whether to allow the applications or place conditions to control likely impacts on neighbouring amenities.
26. If Mr X remains unhappy at the end of the decision-making process, he can complain again, and we can consider whether there is evidence of fault.

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Final decision

27. I ended my investigation because the planning decision-making process is ongoing.

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Investigator's decision on behalf of the Ombudsman