Summary: Mr X says the Council should not have abandoned enforcement action in 2022 and failed to ensure its officers returned messages and responded to emails. There is no fault in the Council’s decision to abandon prosecution but it delayed reaching that decision and has still not decided whether to pursue the planning breach. There is no evidence of failure to respond to Mr X’s contacts since 2022. An apology for the delayed decision to abandon prosecution and an agreement to make a decision on the outstanding planning breach is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained the Council:
• unreasonably abandoned enforcement action in 2022 when it knew the business had not complied with the planning condition and residents were experiencing noise nuisance; and
• failed to respond to his messages and emails and refused to meet with him.
2. Mr X says as a result of the Council’s actions noise nuisance from the business had a severe impact on his life and he eventually had to move out of his home.

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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 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (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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What I have and have not investigated

7. I have investigated the period from the point at which the Council abandoned prosecution action in 2022. I have not investigated the period from 2017 to 2022.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mr X and the organisation 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

What should have happened

Legislative background

10. A breach of planning control is defined in section 171A of the Town and Country Planning Act 1990 as:
• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.
11. Local planning authorities have discretion to take enforcement action, when they regard it as expedient to do so having regard to the development plan and any other material considerations.

The Council’s enforcement and prosecution policy

12. This says the Council will take a more collaborative approach to those who comply with regulatory and legal requirements and those who work with it to achieve compliance. It will not hesitate to take all necessary enforcement action against those who commit serious and/or persistent breaches and offences and refuse to work with it to achieve compliance.
13. It says most businesses and members of the community want to comply with the law. The Council will therefore take care to help businesses and others meet their legal obligations. The Council will take firm action, including prosecution where appropriate, against those who flout the law.
14. It says the Council will take an evidence based approach to determine the risks and ensure enforcement action is proportionate.
15. It says the Council may prosecute in respect of serious or recurrent breaches, or where other enforcement actions, such as voluntary undertakings or statutory notices have failed to secure compliance.
16. It says prosecution will only be considered where the Council is satisfied it has sufficient evidence to provide a realistic prospect of conviction against the defendant(s).

What happened

17. At the time of the issues complained of Mr X lived above a property which had been converted into a business premises. One of the conditions imposed on the planning permission for the change of use to the business premises required the business to provide details of the sound insulation planned to prevent noise nuisance to the flats above. The condition required those details be approved in writing by the Council before any development took place. The operator of the business did not submit details for sound mitigation measures and opened the business without complying with the planning condition. The condition said the levels of noise measured within habitable rooms should be no higher than 35 dB between 7am and 11pm and 30 dB from 11pm to 7am.
18. Mr X and other residents reported issues with sound transmission in 2017. Following an investigation the Council served a noise abatement notice. The Council then served a planning enforcement notice in 2018. That enforcement notice required the operator of the business to stop using the building as a business other than in full compliance with the conditions on the planning approval, with the notice taking effect on 24 May 2018. As the notice had not been complied with the Council referred the matter to its solicitors for prosecution in November 2018. The Council then began prosecution action.
19. Following the service of the notice environmental health officers regularly carried out noise recordings in the neighbouring properties to support the legal case. Environmental health officers also gave the operator of the business advice about how to mitigate noise. The operator of the business carried out various measures to reduce noise transmission in 2018 and 2019. Environmental health officers continued to carry out noise recordings which showed noise below the limit set by the World Health Organisation.
20. The Council’s prosecution case should have been heard in court in 2020. That prosecution was delayed as courts were affected by the COVID-19 lockdowns. When the case was heard in court in 2021 the operator of the business pleaded not guilty and a trial was set for 2022. Shortly before the trial was due to take place the Council took legal advice. Following the legal advice the Council decided to drop the prosecution as the operator of the business had undertaken mitigation measures and done everything it could be expected to do to comply with the notice. The Council told Mr X and other residents about the decision. The Council told the residents it had asked the operator of the business to submit the documentation to discharge the planning condition. The Council said if he did not comply the Council would refer the file for legal advice about taking further prosecution action. The operator of the business has not submitted the required documentation. The Council has not taken any further action or legal advice. Mr X no longer lives in the property.

Analysis

21. Mr X refers to matters going back to 2017. I am not exercising the Ombudsman’s discretion to investigate the entire period. That is because the Ombudsman will not normally consider a complaint about matters which occurred more than 12 months ago. I see no reason why Mr X could not have complained to the Ombudsman within 12 months if he believed the Council had delayed taking enforcement action. In any event Mr X’s main concern is with the Council’s decision not to pursue prosecution shortly before the court was due to hear the case in 2022. That matter is within 12 months of the complaint to the Ombudsman and is the complaint I have investigated.
22. Mr X’s main concern with the Council’s decision to stop prosecution in 2022 is that he says it relied on information available to the Council at the time it began its prosecution. Mr X therefore does not understand why the Council stopped the prosecution case in 2022 when as far as he is concerned it had no new information. Having considered the advice on which the Council relied in deciding to stop prosecution I am satisfied this was largely around the measures the business had taken to address transmission of noise and vibration. The evidence I have seen suggests the Council had all that information at least by May 2019. I have no evidence to suggest the operator of the business carried out any further mitigation measures after that. I am satisfied though the Council had reached the decision to begin prosecution action for non-compliance with the enforcement notice before May 2019. I therefore could not say the Council made two opposing decisions based on the same evidence.
23. I understand Mr X’s concern though about the Council abandoning prosecution action shortly before the case was due to be heard in court in 2022 given the situation with mitigation of noise at the business had not changed since May 2019. I would have expected the Council to keep the legal case under review and to have taken advice on whether the mitigation measures undertaken by the business would undermine the prosecution case, particularly when the Council’s monitoring did not identify noise at statutory nuisance levels. I accept though there would likely have been some delay during COVID-19 lockdowns in 2020. I would have expected the Council to have reviewed the case in 2021 though and I have no evidence it did so.
24. I consider it likely if the Council had reviewed the case in 2021 it would have received the same advice it received in 2022 and would have discontinued the case earlier. Failing to keep the prosecution case under review is fault but I do not consider it likely that affected the overall outcome. I appreciate Mr X believes the Council should have continued with prosecution action. As the Council reached its decision after taking legal advice though it is not a decision I could criticise. The point for me is that the Council should have taken that advice earlier. I appreciate this meant Mr X had an extra year where he believed the Council would take action against the operator of the business. While I understand his frustration about the decision in 2022 I consider it likely, given the length of time matters had been progressing, Mr X would have experienced a similar level of frustration if the Council had stopped prosecution action in 2021. In those circumstances I consider an apology satisfactory remedy. The Council has agreed to that recommendation.
25. I am concerned though that more than a year has passed since the Council discontinued prosecution action. Despite engaging with the operator of the business the Council still does not have the paperwork required to discharge the planning condition. I am concerned about that because in June and July 2022 the Council told other residents if the paperwork was not forthcoming it would take legal advice on whether to pursue further prosecution action. The Council has provided no evidence to suggest it has referred the case for advice or taken any action before I issued my draft decision. That is fault.
26. The Council says it has not received any complaints of noise nuisance from residents since 2020. I believe the implication the Council is making here is that there is no longer an issue for it to pursue. Even if that were the case, I would expect the Council to have decided whether to pursue further enforcement action against the operator of the business as he had not complied with the request to submit the documentation to discharge the planning condition. However, the documentary evidence I have seen shows residents still reporting noise from the business in 2021 when corresponding with the Council about the ongoing legal case. The Council’s environmental health team also refers to a significant reduction in the number of noise complaints since 2021 which does not suggest there have been no complaints at all. I am therefore not convinced the mitigation measures undertaken have resulted in residents no longer pursuing noise complaints.
27. In any event, as the Council had told residents it would refer the case for further legal advice it raised their expectations about what the Council would do if the operator of the business did not put in the documentation required. I do not consider it likely this has caused Mr X an injustice given he moved out of his property in 2022. As none of the other residents have complained to the Ombudsman I consider satisfactory remedy here would be for the Council to review the evidence and decide what, if any, enforcement action to take for the ongoing planning breach. The Council has agreed to that recommendation.
28. Mr X also says the Council failed to respond to a large percentage of his emails and refused to meet with him. As I said in paragraph 17, I am not exercising the Ombudsman’s discretion to investigate what happened before 2022. I therefore cannot comment on any failure to respond to emails or requests for a meeting before 2022. Having considered the documentary evidence from 2022 onwards I have not identified any failures to respond to Mr X, with the exception of one email, or any refusal to meet. I therefore have no grounds to criticise the Council.

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Agreed action

29. Within one month of my decision the Council should apologise to Mr X for the frustration he experienced due to the faults identified in this decision. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
30. Within two months of my decision the Council should decide whether to pursue the outstanding planning enforcement issue.

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Final decision

31. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr X an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman