Summary: Mr K complains about the Council’s delay in ensuring compliance with a planning condition. And then a delay in taking enforcement action. The Ombudsman’s decision is there was no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr K, complains about the Council’s enforcement action about noise from a healthcare facility near to his home. Specifically that:
• the healthcare facility breached a condition on a planning permission, which the Council had not checked compliance with; and
• the Council took too long to take planning enforcement action.
2. As a remedy Mr K wants the Council to refund him and his wife the costs of some windows they had installed.

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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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
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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What I have and have not investigated

6. Mr K complained to us in July 2023 about matters going back to the spring of 2021. We will usually only investigate matters that occurred in the 12 months before a complaint to us.
7. I have used my discretion to investigate matters back to August 2021, when the Council agreed with Mr K that the noise was coming from the piece of the equipment with the planning permission. Although part of this complaint is late, the Council’s enforcement action took some time. And it is understandable that Mr K awaited the outcome of the planning permission and its implementation before complaining to the Ombudsman.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr K;
• made some initial enquiries of the Council and considered the information it provided;
• considered publicly available information on the Council website’s planning pages;
• spoken to Mr K; and
• sent my draft decision to Mr K and the Council and invited their comments.

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What I found

Legal and administrative background

Statutory Noise Nuisance

9. The Council’s Environmental Health Team provides a service to investigate complaints of statutory nuisance. The statutory provisions relating to nuisance can be found in the Environmental Protection Act 1990. Noise can amount to a statutory nuisance. If an officer witnesses noise which in their opinion amounts to statutory nuisance, they may start enforcement action to stop the nuisance and prevent its recurrence.

Planning enforcement

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 limit associated with the planning permission.
11. Local planning authorities (LPA) can take enforcement action if they find there has been a breach of planning control. However, they should not take enforcement action just because there has been a breach of control. The National Planning Policy Framework says:

‘’Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.”

12. LPAs normally first try to deal with breaches informally, often through negotiation with the developer/landowner. Negotiations may take time and can result in an owner making a planning application to seek to correct any breach of the planning permission. This allows the LPA to give local people an opportunity to comment on that development and then assess it against planning policies. Normally, development meeting planning policies will get planning permission, unless there are other relevant planning reasons to justify refusal.

What happened

Background

13. Mr K and his wife moved to their home in 2015. Mr K says they have experienced problems with noise from a nearby healthcare facility, from shortly after they moved. And they have had various meetings and emails with the healthcare provider since then. In 2019 the healthcare provider commissioned an acoustic report. The report suggested some of the healthcare facility’s equipment was old.
14. Mr K first contacted the Council’s Environmental Health Team in the early spring of 2021. It opened an investigation into a possible statutory nuisance. It wrote to the healthcare facility noting it would expect it to regularly maintain equipment and periodically monitor noise from the equipment. Its communications with the healthcare facility continued about its maintenance regime; asking it questions about specific pieces of equipment.
15. The Council’s Environmental Health Team investigated; including installing noise recording equipment and monitoring. But this investigation did not provide evidence the noise from the healthcare facility amounted to a statutory nuisance.
16. In July Mr K told the Environmental Health Team that in his view, the noise was coming from a specific piece of equipment. And he noted the Council had granted the healthcare facility planning permission for the housing of that piece of equipment. The planning permission included conditions about the time of operation of the equipment.
17. The Council’s Environmental Health Technician contacted its Planning Enforcement Team. The officers noted further investigation was needed to find out whether Mr K was correct the piece of equipment with the planning permission was the source of the noise.

The enforcement investigation about the breach of the planning permission

18. At the end of the summer, the Council was satisfied the source of the noise was from the equipment with the planning permission. And the healthcare facility had breached a condition on the permission, as it had not installed the equipment in the correct place. It wrote to the healthcare provider about this. The healthcare provider advised it would appoint a contractor to investigate the issue and suggest a solution.
19. At the end of 2021, Mr K contacted the Ombudsman complaining because the Council had not started formal enforcement action about the breach of the planning permission. We advised Mr K that, before we would consider the complaint, he would need to complete the Council’s own complaint procedure.
20. In the early part of 2022 the Council issued a Breach of Condition Notice to the healthcare provider, after the provider’s attempts to mitigate the noise were unsuccessful.
21. Around a month later, the healthcare provider applied for planning permission for the equipment in the place it had been placed. The Council granted planning permission with conditions.
22. In early 2023, the healthcare provider completed works associated with the planning permission. The Council’s planning enforcement team was satisfied the planning conditions were met, so it closed its enforcement investigation.
23. Around the same time, Mr K and his wife installed new windows in their home. Mr K advises me they installed the windows to reduce the noise into their home.
24. Mr K complained to the Council that the measures associated with the planning permission had not stopped the noise pollution.
25. The Council provided responses through its two-stage complaint procedure. Key responses included that it:
• accepted that enforcement action had taken some time. But that was because it had allowed the healthcare provider time to find a solution. It noted the pressure on healthcare facilities following the COVID-19 pandemic;
• served a breach of condition notice when it decided it could not give the healthcare provider any more time;
• acknowledged Mr K’s assertions that noise levels had not improved. So it asked its Environmental Health Officers to monitor the noise and whether the healthcare provider had complied with the conditions on the new planning application.
26. The Council carried out some further monitoring of the noise Mr K continued to experience. Mr K and the Council now agree the continuing noise is not from the equipment related to the planning permission.
27. Mr K complained to the Ombudsman in July 2023.

Analysis

28. The decision whether to take planning enforcement action is a statutory discretion. As with any discretionary decision, the Ombudsman can consider whether the authority has taken relevant factors into account, whether it has taken account of irrelevant issues, whether its decision was properly recorded and evidenced, whether it had had regard to any relevant guidance or policies. And whether its decision was reasonable and proportionate in all of the circumstances.
29. With this complaint, the Council established the healthcare provider built the infrastructure for its equipment in the wrong place. So this breached the planning permission. The Council at first took informal action: writing to the provider and agreeing to allow it time to resolve the issue. For the Council to take formal action, it would need to conclude action was warranted and proportionate. So I cannot criticise it for wanting to explore this option first.
30. The Council’s files note some delay by the healthcare provider in its investigation of solutions to the issue of the noise. But the Council kept the provider’s actions and delay under review. It has explained why it allowed the provider time to rectify the situation. And it took formal action when the healthcare provider’s ‘solution’ did not lead to the desired improvement.
31. After the Council did serve its notice, the landowner submitted a retrospective application. They were entitled to do this. And the Council was correct to hold its enforcement action while it considered that application. The work resulting from that planning permission has resolved the problems with the noise from that particular piece of equipment.
32. I understand Mr K had been living with the noise from the healthcare facility for some time and he would have liked the Council to act more quickly; escalating sooner to formal enforcement action. But my decision is the Council has provided cogent reasons for its decisions to not act earlier. So that means there is no basis for me to criticise the officers’ professional judgement. I do not uphold the complaint.

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Final decision

33. My decision is there was no fault by the Council. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman