Summary: Mrs X reported a breach of planning control and noise nuisance from a site near her home. We found no fault in how the Council reached its planning and noise nuisance decisions. The Council had already apologised to Mrs X for injustice caused by poor communication during its enforcement investigations and consideration of her complaint.

The complaint

1. Mrs X said the Council failed to properly investigate in a timely manner her reports of a breach of planning control and noise nuisance on land (‘the Site’) near her home. Mrs X said noise from the unauthorised development badly disrupted family life, including her children’s sleep, and caused immense stress and financial strain.
2. Mrs X wanted the Council to apologise; publish details of the planning breach; substantively address her concerns about its investigations, including of bias; reimburse her legal costs; and compensate her for the distress caused by its failures to act. Mrs X also wanted the Council to appoint an independent environmental health officer to review its noise nuisance investigation.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (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, 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 could not add to any previous investigation by the organisation, 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))

5. 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

6. I have:

• considered Mrs X’s written complaint and supporting papers;
• offered to talk to Mrs X about the complaint;
• considered information provided by the Council about the complaint; and
• shared a draft of this statement with Mrs X and the Council and considered any comments received before making a final decision.

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What I found

Background

Planning enforcement

7. Where development takes place without the necessary planning permission from the local council, there will be a breach of planning control. Councils, acting as local planning authorities, have responsibility for taking whatever enforcement action may be necessary, in the public interest, in their area. Councils should investigate reported breaches, but they do not need to act against every breach they find. Rather, they have discretion to act. The Government’s National Planning Policy Framework (NPPF) says councils “should act proportionately in responding to suspected breaches of planning control”.
8. When deciding whether to take formal enforcement action, councils will consider what degree of planning harm a breach will likely cause the public. Councils will also usually have choices in how they respond to a breach. For example, a council can ask, but not force, a developer to submit a retrospective planning application. This may happen where a council considers it could grant planning permission, probably with conditions, to regularise unauthorised development.
9. Councils may issue an enforcement notice if they find it expedient to do so having considered their planning policies and any other material considerations. The notice must set out the breach and what needs to be done and by when to deal with the breach. A notice cannot take effect for at least 28 days and those receiving the notice have legal appeal rights before the notice comes into force. An appeal may, for example, seek planning permission for the unauthorised development and or claim the time given to comply is unreasonably short. Once an appeal is made, the notice cannot take effect until the appeal is decided by the independent Planning Inspectorate.
10. The Council had a 2018 planning enforcement policy, which it updated in 2022, (‘the Policy’) that sets out its approach to planning enforcement. The Policy reflects the NPPF. The Policy says the planning system operates to regulate development in the community’s interest taking account of local policies and other material planning considerations. The Council will consider each case on its merits and, where possible, taking account of the attitude of the person responsible for the breach when considering how to act.
11. The Policy sets out the actions usually applying to enforcement investigations involving a breach. These actions include negotiations and retrospective planning applications. The Policy says normally officers will first try to resolve unacceptable breaches through negotiation and without formal enforcement action. But formal action will be considered if, after a reasonable time (the duration of which will depend on the circumstances of each case), attempts to negotiate fail.
12. As of November 2022, the Council’s website said it would update interested parties on key actions and decisions, for example, closing an enforcement case. The website also said its planning enforcement officers could not provide a “running commentary” on investigations. Officers were unlikely to enter into ad hoc correspondence during investigations, which investigations might take considerable time. If officers found emails and other contacts needed a reply, contact would be made. Interested parties would be updated on any key actions or decisions, for example, the closure of a case. The Policy also set out ‘principles of good enforcement’ that included, under ‘helpfulness’, officers providing courteous, efficient, effective and coordinated services. The Policy also referred people to the Council’s corporate complaints procedure with any complaint about the planning enforcement service.

Statutory nuisance

13. Councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things that may be a statutory nuisance include:

• noise from premises or vehicles, equipment, or machinery in the street;
• artificial light from premises; and
• smells from industry, trade, or business premises.

14. 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.

15. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise monitoring equipment, or carry out site visits. Councils will then assess the evidence gathered taking account of the timing, duration, and intensity of the alleged nuisance. The council’s officers will then use their professional judgement to decide whether a statutory nuisance exists.
16. If councils are satisfied a statutory nuisance is happening, has happened or will happen in the future, they must serve an abatement notice. If the nuisance is noise from premises, they may delay service for a short period to attempt to address the problem informally. An abatement notice requires the person responsible to stop or limit the activity causing the nuisance. A person receiving a notice has a right to appeal it in the magistrates’ court. And, depending on the circumstances, the notice may be suspended until the appeal is decided. People may have a defence against a notice if they have taken reasonable steps to prevent or minimise a nuisance. A failure to comply with a notice is a criminal offence, which can lead to prosecution and a fine.
17. Councils may also take informal action if the matter complained about is causing a problem but is not a statutory nuisance. For example, councils may suggest the parties try mediation or suggest changes to the activity causing the problem.
18. People also have legal rights to take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded the person is suffering a statutory nuisance, it can order those responsible to take action to stop or limit that nuisance. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their legal right to take action.
19. The Council has a 2021 Noise Investigation Procedure (‘the Procedure’) explaining how it will respond to noise reports. The Procedure says the Council approaches enforcement in a graduated way and often finds informal action resolves matters. The Procedure says the Council’s officers are “designated experts in assessing the existence of statutory nuisance and their professional judgement is very important”. The Procedure refers to people’s right to take private action (see paragraph 18) where an officer assesses the noise being complained about is not a statutory nuisance.
20. The Procedure says, to consider a noise complaint, the Council needs people to complete diary sheets (available on its website) for three weeks. The completed diary sheets then need to be attached to their noise report and sent to the Council. The Procedure also says the Council will contact and discuss the matter under investigation with the people being complained about, and it may take informal action to deal with it. The Procedure says the person reporting noise will be given contact details for the officer dealing with their case who will let them know how the investigation will proceed. The Procedure also says when investigating officers will have regard to its Corporate Enforcement Policy and the Regulators’ Code. The Government describes the Regulators’ Code as providing “…a clear, flexible and principles-based framework for how regulators should engage with those they regulate.”

What happened

21. The Site was used for providing health services to the public. In October 2021, equipment (‘the Equipment’) was replaced and moved to a different position on the Site. The Equipment was said to be essential for providing specific health services within a building on the Site. Mrs X contacted the Site occupiers (‘the Third Party’) to report noise from the Equipment. A few days later, Mrs X contacted the Council about the Equipment causing a noise nuisance and breaching planning control. The Council appointed both environmental and planning enforcement officers to deal with Mrs X’s reports.
22. The Third Party engaged with the noise issue and over the next seven weeks arranged three noise surveys in October, November and December 2021. After each survey mitigation work was carried out to try to reduce noise from the Equipment. The Council and Third Party kept in touch during this time and Mrs X knew about the surveys and mitigation works. The Council also told the Third Party the Equipment would need, retrospective, planning permission.
23. The mitigation works reduced noise from the Equipment, but adverse noise impacts continued. The Third Party’s third, December 2021, noise survey predicted night time noise, with a partially open window, would be 1bB below recommended limits for a bedroom. With ‘corrections’ in line with relevant British Standards, the 1dB below increased to 2dB above recommended limits, which indicated a moderate noise impact. Mrs X continued to report noise to both the Third Party and the Council. Mrs X said the mitigation work was inadequate and substantive Council action was needed to deal with the noise.
24. In early December 2021, the Council’s environmental enforcement officer (‘the EEO’) visited Mrs X’s home. Mrs X says the EEO listened to the noise from a bedroom in her home and commented that it would not disrupt their sleep. Later that month the Council installed noise monitoring equipment (NME) in the bedroom. The NME was in Mrs X’s home for about 24 hours and recorded noise for part of that time. The Council said this was sufficient given the consistency of noise from the Equipment. The EEO found noise from the Equipment could be heard but assessed it as “quiet” and not invasive enough to constitute a statutory nuisance.
25. In late December, the Third Party shared its noise survey information with the Council and confirmed the noise mitigation steps it had taken.
26. Meanwhile, the Council’s planning enforcement officer (‘the PEO') and Third Party were arranging a meeting to discuss further steps to resolve planning issues. The Council and the Third Party met in early January 2022. The Third Party then carried out a further noise survey and in late January submitted a planning application to move the Equipment within the Site. The Council’s planning officer consulted the EEO about the application. The EEO, having considered the noise impact assessment submitted with the application, was satisfied the Equipment was unlikely to cause an adverse noise disturbance for nearby homes in the proposed location. The Council granted planning permission to move the Equipment in late March 2022. Mrs X became aware of the planning application and, later, the grant of planning permission.
27. The PEO and senior Council planning enforcement officers considered the situation. The Council then told the Third Party to move the Equipment within three months of the grant of planning permission. The PEO and EEO kept in touch with the Third Party, which completed the move in mid-June 2022.
28. Meanwhile, in February 2022, Mrs X had complained to the Council. The Council issued its final complaint response in early May 2022.
29. In summary, Mrs X’s complaint was the EEO’s investigation was inadequate. The EEO had not carried out a noise assessment or applied the relevant considerations (see paragraph 15). Instead, the EEO had just listened to the noise and decided it was not loud enough to be a statutory nuisance. The EEO’s view was inconsistent with the noise reports provided by the Third Party. Mrs X said the grant of planning permission to move the Equipment was irrelevant to her noise nuisance report. Mrs X also said the Council gave too much weight to the services provided by the Third Party. And the EEO’s investigation was slow as there was no home visit until December, no NME until late December, and no written communication about the NME information or nuisance decision until January 2022.
30. In summary, the Council’s response was its EEO was an experienced and qualified noise investigation officer. Its EEO had found the noise heard was not a statutory nuisance, in part because it was “of such a low amplitude that it would not disturb sleep”. The Council said it sought to resolve matters by working with interested parties, in a graduated way, before moving to formal action. It had done this here and the Third Party had cooperated. The Council said it was confident moving the Equipment in line with the March planning permission would resolve matters. And it had given the Third Party three months to complete the move. It was satisfied both the EEO and PEO had carried out impartial investigations. The Council accepted it had not replied to an early February 2022 email from Mrs X and that it could have better handled Mrs X’s complaint. The Council apologised for the distress caused by its communication failures.

Consideration

Introduction

31. We are not a planning appeal body and do not determine if development breaches planning control or a statutory nuisance exists. Our role is to consider how councils reach their decisions and whether there is evidence of fault in the process. Where we find evidence of fault, we consider if this is likely to have affected a council’s decisions and caused a complainant significant injustice.
32. As a publicly funded body we must be careful how we use our limited resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision on whether a council has acted with fault. This means we do not try to answer every question or address each detailed point raised by a complainant about what a council did. So, we cannot always respond to complaints in the detail people might want.
33. While I carefully considered all that Mrs X said, this statement does not, and did not need to, address every point raised in the correspondence and complaints. My focus was whether the Council’s two enforcement investigations fell below acceptable administrative standards so as to evidence fault in its decision making likely to have caused Mrs X significant injustice.

The Council’s investigations

34. The Equipment Mrs X complained about was in position for about eight months, from October 2021 to June 2022. So, what happened during those eight months?
35. The email evidence from October 2021 onwards showed the Third Party had not foreseen that replacing and moving the Equipment would result in more noise. They also responded immediately to the concerns raised by Mrs X, and following contact from the Council, by seeking specialist noise advice. The three noise surveys carried out in the seven weeks after the Equipment was moved each resulted in mitigation works that sought to reduce noise. The Council was aware of the Third Party’s actions although it was not until late December 2021 that it received copy noise information. Both the Policy and Procedure provided for informal resolution, and I therefore found no fault in the Council adopting such an approach in dealing with Mrs X’s reports from late October to December 2021.
36. As Mrs X continued to report noise in December 2021, the Council took further steps including visiting her home and, later, installing NME. I recognise Mrs X may have wanted and expected a visit sooner than December and for the NME to be in place for longer than it was. However, the Council knew the Third Party was trying, and did, slightly reduce noise from the Equipment having commissioned noise surveys. I did not find the Council at fault for not visiting while the Third Party attempted noise reduction measures. It was also for the Council to determine whether to use NME, and for how long, to gather information about noise from the Equipment.
37. The Council, as of late December 2021, had obtained the Third Party’s noise surveys, visited Mrs X’s home, and used NME. The Council had therefore taken steps reasonably to be expected to gather information to reach a view on whether the noise reported by Mrs X was a statutory nuisance. I did not therefore find there was fault in the Council’s noise nuisance investigation. It was then for the Council to determine whether it was satisfied the noise reported by Mrs X was a statutory nuisance, which it did in January 2022. And it was not so satisfied.
38. From late October through to December 2021, the Council’s PEO, was also in contact with the Third Party, and the EEO. The evidence indicated the PEO had advised the Third Party, but not Mrs X, the Equipment breached planning control. And retaining it would need a retrospective planning application (see paragraph 8). The evidence indicated the Third Party may have wanted reassurance the Council would grant planning permission. The Council could not provide such reassurance as it must decide applications ‘as made’ on their merits and after publicising them for comment. The evidence showed a meeting took place in January 2022 and was followed by a planning application seeking to reposition the Equipment further from nearby homes. It took three months to reach to this point.
39. Three months is a long time. However, from early contact with the Third Party, the PEO knew it was willing to engage and try to resolve the issue. And the Third Party’s noise reduction measures had sought to address the issue of noise from the Equipment. Noise can be a material planning consideration when deciding a planning application. The Government’s Planning Practice Guidance says councils should usually avoid formal action where development is acceptable in planning terms and enforcement would solely regularise development. Here, without any noise issues, requiring a retrospective application to regularise the unauthorised Equipment would likely not have been ‘proportionate’. I therefore did not find the Council at fault in attempting to resolve the planning breach informally between late October and December 2021.
40. When Mrs X continued to report noise concerns in December, the evidence showed a meeting was proposed to try to resolve planning matters. Unfortunately, the meeting did not take place until January 2022. However, I saw no evidence of avoidable delay in arranging the meeting. Once the meeting took place in early January 2022, the Third Party, rather than seeking retrospective permission, decided to apply to move the Equipment within the Site and further from Mrs X’s home. In preparing the application, the Third Party carried out a fourth noise survey. Overall, I did not find the Council fell below acceptable standards although securing a planning application for the Equipment took three months.
41. Councils have eight weeks to decide most properly made planning applications. Here, the Third Party’s application was not correctly made and only formally accepted by the Council in mid-February. However, the Council granted planning permission to move the Equipment in late March 2022 about eight weeks after first receiving the application. The Third Party continued to cooperate with the Council by moving the Equipment within three months of the grant of planning permission. Three months being the time the Council would have given the Third Party if it had issued an enforcement notice.
42. Eight months was a considerable time. However, after three months, the Council held a planning application to move the Equipment. The grant and implementation of that planning permission aimed to provide a permanent outcome for the noise Mrs X complained about. The Council acted without delay in processing the application and giving the Third Party a deadline for moving the Equipment. I therefore did not find the Council at fault for not taking any formal enforcement action against Mrs X’s noise reports having received the January 2022 planning application to move the Equipment.
43. Mrs X was concerned the Council acted with bias because the Third Party provided public health services and pointed to officer verbal and email comments. I recognised Mrs X’s concerns. However, I saw no substantive evidence that would substantiate ‘bias’ by the Council. It should act in the ‘public interest’. And, if here it had found good reason to take formal enforcement action, doing so would have taken time. Preparing and authorising formal notices needs care to ensure they are correct and lawful and so can be ‘enforced’ if a recipient fails to comply. This usually involves consultation with a council’s legal advisers. A formal enforcement and or abatement notice would give the Third Party time to address any breach of planning and or statutory nuisance identified in that notice. The Third Party would have also had appeal rights against such formal notices, which would take control of the situation out of the Council’s hands. Here, by working with the Third Party, the Council secured a permanent resolution to the situation while effectively keeping control of the process.
44. Mrs X also complained about the Council’s poor communications, including the lack of any detailed explanation of its statutory nuisance decision. I recognise this would have added to Mrs X’s frustration and distress. The evidence showed many emails between Mrs X and both the Third Party and the Council. However, Mrs X often initiated contact. The Policy and Procedure did not provide for regular or routine contact and updates with those reporting a planning breach or noise nuisance. However, Mrs X did not receive written notice from the Council of closure of the planning enforcement case after the Equipment was moved. The Council accepted it could have better handled matters and apologised to Mrs X for injustice arising from its poor communications (see paragraph 30). I found the Council’s apology proportionately, reasonably and appropriately addressed its communication failings.

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Final decision

45. I completed my investigation finding that, despite poor communication with Mrs X, there was no substantive fault in how the Council reached its enforcement decisions.

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Investigator's decision on behalf of the Ombudsman