Summary: Mr X complained the Council failed to enforce the planning conditions for the neighbouring business next door, with dissatisfaction with how the Council dealt with his concerns. We do not find fault by the Council in the way it made its decisions for not taking enforcement action for some conditions. We found some fault with the delay in pursuing compliance with one of the conditions. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Mr X complains the Council has failed to enforce the planning conditions of a neighbouring property, allowing it to cause a disturbance to him and other local residents. He says despite him and other residents sending evidence of breached conditions and examples of these to the Council over a long period, it has not provided satisfactory reasons for why it hasn't taken action. Mr X says these breaches are causing significant negative impact to his residential amenity.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
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. 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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What I have and have not investigated

5. Mr X said his neighbouring property has been in breach of conditions since the Council approved its first planning application several years ago. I acknowledge this has been a longstanding matter. I have limited the scope of my investigation to the enforcement of the current conditions approved since mid-2022, which has given Mr X further cause to complain. I am not considering events before this point and have added Paragraph 19 for relevant background.

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How I considered this complaint

6. I discussed the complaint with Mr X, considered his views, and the information he sent.
7. I made enquiries of the Council and considered its written responses and information it provided.
8. 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

Law and administrative background

Planning enforcement

9. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
10. Government guidance makes clear that enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control. 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.
11. As planning enforcement action is discretionary, 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.

Statutory nuisance

12. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
13. Typical things which may be a statutory nuisance include:
• noise from 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 (generally an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
16. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
17. 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.

Background

18. I have summarised below an overview of the key relevant events. I have reviewed extensive emails sent between many concerned parties, including Mr X, and the Council. This is not intended to be a detailed account of each communication between the parties or an exhaustive chronology of everything that happened.
19. Several years ago, the Council granted Mr X’s neighbouring property planning permission for the conversion of some parts into holiday lets, with conditions in place. Over the years there were complaints about its use being against the conditions and causing disturbance to local residents. Mr X’s neighbour submitted a revised planning application to change it to mixed commercial and residential use.
20. In mid-2022, the Planning Committee granted the change of use, subject to several conditions.
21. I have summarised the main relevant conditions Mr X has raised for the purposes of this complaint (some overlap) as:
• “Condition 1”: The removal of material along the boundary fence between his property and his neighbour’s and the submission of plans for a replacement barrier, within one month of the decision notice and installed within one month of approval.
• “Condition 2”: The use of the site, and the associated [outbuilding], were approved to be “used ancillary” for holiday lets only and by resident guests only.
• “Condition 3”: The use of amplified sound systems is prohibited in external areas of the site.

What happened

22. In September 2022, Mr X formally complained to the Council his neighbour (“the Owner”) regularly breached these conditions or had not met them. He said the property hosted large group events and parties, disrupting his amenity with the noise and associated behaviour.
23. He said many local residents affected had submitted complaints and evidence of these as requested by the Council’s Planning team. The Planning Enforcement Officer (“PEO”) had emailed concerned parties saying:
• Plans had been prepared to discharge Condition 1. No further action would be taken for this technical breach, providing the plans were submitted promptly;
• Once it received ongoing evidence over a number of months of sustained use of the site, it would seek legal advice about whether it was sufficient to be legally enforceable;
• Following the advice, if it considered it expedient and in the public interest, it would take formal enforcement action. The PEO would respond to complaints in the meantime.
24. In response, Mr X said the site was continually advertised for large events despite the conditions. He complained the Council had failed to take action to ensure compliance. He said the Planning Committee had set out clear and specific expectations with these conditions. If properly enforced as evidently intended, it would reduce the harm to him and local residents.
25. In October, the Council responded at Stage One. It confirmed its investigation into the case and the gathering of evidence. It did not uphold his complaint. Mr X asked for a reconsideration of his issues of complaint. The Council maintained its position and advised it was monitoring the situation.
26. In March 2023, the Council responded at Stage Two after Mr X made further contact about his complaint in January. An independent internal view agreed with the response at Stage One. The case was ongoing, and it noted no reported incidents since before Christmas.
27. Mr X then complained to us.

The Council’s response to my enquiries

28. The Council provided a summary of complaints received about the site on its enforcement file:
• Between July and September 2022 - there were a number of complaints about events taking place.
• From September 2022 until April 2023 - no new incident complaints, noting the site had not really operated.
• April 2023 - it received a few complaints about an advertised weekend event for the summer.
29. The Council said there had not been a sustained ongoing recent period of reported breaches of conditions; complaints had been sporadic. It said it had limited evidence to substantiate it was expedient and necessary to take formal enforcement action.
30. For the recent complaints in April 2023 before the summer event; the Council took advice from its Legal team that holiday lets associated activity was not in breach of the specific wording in Condition 2. The Council said it was currently awaiting external and formal legal advice on the matter. Once received, it would review its approach.
31. After the summer event, Mr X reported breaches of several conditions, including Conditions 1-3, during that weekend. The Council reviewed the evidence. It said it was in contact with the Owner to ensure compliance and noted Condition 1 had now progressed as plans had been submitted. With reports of the amplified music, it discussed a way forward to involve Environmental Health (“EH”) to monitor the noise levels and corroborate the breaches.
32. The Council acknowledged the Owner had failed to meet the timescales for Condition 1.

Analysis

33. The Ombudsman is not an appeal body. It is not our role to make judgements and assess evidence provided to the Council of any breaches or decide if it should or should not take enforcement action. We consider whether there was fault in the way the Council investigated or what it considered when it made its decisions. If there was no fault with the decision making, we cannot question the outcome, regardless of if a complainant disagrees with it.

Conditions 2 and 3

34. Councils have discretionary powers with planning enforcement. Government guidance says councils should act proportionately and councils should try informal methods of resolving the matter before using their legal powers. So, formal action may not happen or be immediate. It is not just about a number of complaints received. Councils have to judge and balance all available evidence to decide whether there is a breach of conditions, whether it is causing harm, and whether it is expedient (the right thing to do) to take action and weigh up considerations of public interest. This varies from case to case.
35. The Council received complaints about the use of the site and recorded them in an enforcement file. In September 2022, the Council shared its intended ongoing approach with Mr X and other concerned parties after considering the allegations it received from mid-2022. After this, it received no new complaints of events until April 2023. I am satisfied the Council responded in light of the new concerns and then actively considered the evidence provided in this period.
36. There are concerns and contention about Condition 2 and whether events hosted are in breach of this wording, and the Council is waiting for formal legal advice. However, in general, I note the Council said over the period considered, complaints about Conditions 2 and 3 were sporadic and it decided this was not sufficient to warrant enforcement action. I am satisfied emails show it had contacted the Owner, internally discussed these matters, (such as with its own Legal team), and considered the evidence of these complaints at the time (such as videos and photos from advertisements). Having considered all the relevant information and evidence, this is a decision the Council is entitled to make.
37. Mr X said he was not reporting the breaches as statutory noise nuisance and disagreed with an EH approach. He said it was the principle of the events being the core issue (from non-enforcement of the planning conditions), not just the noise. However, it is not fault in itself for the Council to liaise with, or advise involvement of, its EH team to consider what other powers it could potentially use to address the matter. This is appropriate.
38. Mr X said the intention and expectations of the Planning Committee in agreeing the conditions were clearly to limit the impact of the Owner’s property and how it operated. I note the spirit of this. However, it is up to the Council to reach its own view on the evidence of the breaches at the time when it comes to planning enforcement and to consider the context for any planning conditions.
39. Mr X said the Council should take action to address what, in his view, is the root cause of the problems and caused serious harm to local amenity. However, it is not mandatory for the Council to take enforcement action. I cannot criticise the professional judgement of officers for deciding these did not meet the threshold to warrant further action from a planning enforcement perspective. While I appreciate Mr X strongly disagrees with this, I do not find fault with the Council’s actions relating to Condition 2 and 3.
40. I note Mr X’s dissatisfaction with the Council’s responses to his concerns throughout and with explanations given to its decisions. However, taking into account the above, I have not seen significant concerns that I would conclude were fault with regards to communication.

Condition 1

41. In September 2022, the Council informed concerned parties whilst outside of the prescribed timescales, it believed the drawings for the barrier were being submitted. It said it would not take action as long as it promptly received them. This did not happen until June 2023.
42. Considering the evidence, I have seen initial communication between the Council and Owner about Condition 1 between August 2022 and October 2022. The Council did not pursue it again until March 2023.
43. I recognise some of the wider circumstances on why progress on this specific matter was slow, however I consider the Council allowed it to drift by not following up. I acknowledge the Council said it was during a period where there were no new complaints. But on balance, it is my view the Council should have done more and had raised Mr X’s expectations about action for this standalone condition. The delay with pursuing compliance with Condition 1 when it said it would is fault. It appears this is still ongoing. This has caused injustice as Mr X took action himself to get the material on the boundary removed, causing avoidable uncertainty, distress, and frustration.

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Agreed action

44. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
45. Within one month of the final decision:
• Apologise to Mr X and pay him £250 as a symbolic payment to recognise the injustice to him with the Council’s delay in taking action with Condition 1.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I found some fault with the Council which caused injustice to Mr X. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman