Summary: Mr X complained the Council has failed to properly investigate his concerns about unauthorised development and activities at an industrial site next to his home which are unsightly and cause noise nuisance. We found the Council’s failure to properly investigate Mr X’s concerns about the use and appearance of the site in a timely manner is fault. This fault has caused Mr X frustration, distress and uncertainty. The Council has agreed to apologise and make a payment to Mr X to address this injustice. It has also agreed to take action to improve its service.

The complaint

1. The complainant, Mr X complained the Council has failed to properly investigate his concerns about unauthorised development and activities at an industrial site next to his home which are unsightly and cause noise nuisance.
2. Mr X also complained about significant delays in responding to his complaints and that the Council did not follow its complaints process.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 X complains about unauthorised works and use of the site and noise nuisance since late 2021, but we would not investigate events going back so far. Mr X complained to the Ombudsman in March 2024, so my investigation will only focus on events since March 2023. It was open to Mr X to raise his concerns about the Council’s actions, or lack of action in 2021/2022 much sooner.
7. I have referred to events in 2021 and 2022 for context but they do not form part of my investigation.

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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 X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X; and
• 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

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. 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.
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.
12. Government guidance says: “Effective enforcement is important as a means of maintaining 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.” (National Planning Policy Framework September 2023, paragraph 59)

Planning Use Classes

13. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ which means ‘of its own kind’ or ‘unique’.
14. Planning permission is usually needed to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.

What happened here

Background

15. Mr X contacted the Council in October 2021 to report problems with an industrial site close to his home. He told the Council:
• two new buildings had been constructed without planning permission or building regulation approval;
• noise levels at the site were not compatible with light industrial use; and
• that new sections of a stone wall had been constructed to a poor standard with pipes and cables fastened to the top of the wall.
16. The Council’s Environmental Health team advised Mr X they were unable to take any action unless the noise was a statutory nuisance. Mr X says he told the Council he did not consider it was a statutory nuisance, but that it did not comply with light industrial use.
17. Mr X says he received a standard acknowledgement from the Council’s Planning Enforcement department but did not receive a substantive response. Mr X also asked his local Councillor for assistance who contacted the Council on Mr X’s behalf.
18. The Council says it investigated Mr X’s concerns about new buildings being built and found the buildings along with the ancillary structures had been damaged by fire. In planning terms the works were considered to be a repair. In relation to the section of wall, the Council says this had previously been an entrance to the site and had historically been blocked off. The Council did not consider it expedient to enforce this aspect of Mr X’s complaint.
19. The Council says it corresponded with Mr X’s local Councillor and trusted the information would be passed on to Mr X.

Current complaint

20. Mr X spoke with a planning enforcement officer in February 2023. He reiterated his concerns that two new units were constructed, to a very poor standard, without planning permission. He asked the Council to take enforcement action and to confirm the permitted class use for the site. Mr X also complained about a problem with noise.
21. The planning enforcement officer told Mr X the site manager had confirmed the two lean to building were only reinstated when the site was tidied up as they were in a derelict condition. The company acknowledged the poor standard of finish and confirmed it would carry out works to further tidy up by the end of March 2023.
22. The officer confirmed it was not expedient to take enforcement action in relation to the works so a planning application was not necessary.
23. Mr X says no improvement works were carried out so he contacted the planning enforcement officer again in May 2023. Part of the new stone wall was then partially rendered in June 2023. Mr X chased the planning enforcement officer for an update in August 2023.
24. The planning enforcement officer responded in September 2023 and confirmed the building works had been completed. They also told Mr X his concerns about breaches of operating hours and uses had been investigated. There was no breach of planning permission regard the use of the site and any breach regarding operating hours had now stopped.
25. Mr X disputed the Council’s findings and provided photographs of the unfinished works and videos of work being carried out outside operating hours and at noise levels he asserted were not compatible with light industrial use. Mr X chased the planning enforcement officer for a response in October 2023.
26. The planning enforcement officer said they had contacted the site’s management company who would review the CCTV to see which units were working outside the permitted hours. The officer also told Mr X the management company intended to render the rest of the wall in the next few weeks. They referred Mr X’s concerns about noise to the Environmental Health team.
27. An officer from Environmental Health contacted Mr X and reiterated that they could only take action if there was a statutory nuisance. They explained for a statutory nuisance to exist the noise had to be prejudicial to health or a nuisance. The noise had to be detrimental to Mr X’s enjoyment of his property and evidence had to prove frequency, duration and intensity. The officer also explained that businesses had a defence under legislation for ‘best practical means’. They confirmed environmental health would not get involved with the type of noise associated with light industry and suggested Mr X raise his concerns with the planning department.
28. Mr X told the officer the noise was occasional, sometimes all day, sometimes for a few hours and some days were quiet. It was also occasionally noisy outside of permitted operating hours and at weekends. Mr X noted the site had planning permission for light industrial B1 use but considered the current use was B2, general industrial.
29. The environmental health officer advised Mr X that as he lived next to an industrial site and the works carried out were of the nature of the business and the generation on noise was expected from these activities it would be very difficult to prove a statutory nuisance.
30. In November 2023 Mr X made a formal complaint. He noted it was now over two years since he had first reported these issues. Mr X said that on many occasions he had been unable to open the windows or sit outside in his garden due to the noise of angle grinders and impact wrenches. The Council did not respond at this stage.
31. In early December 2023 the planning enforcement officer told Mr X they were meeting the management company on site the following week and would check the uses on the site.
32. The officer then updated Mr X following this visit. They advised the management company had agreed to work on the rest of the wall and would try to blend the colour to match. They would also move the water pipe from the top of the wall onto the industrial estate side so that it was not on view. The officer said these works would take place in early 2024.
33. The officer also reiterated that the two infill extensions were not classed as expedient to enforce. The officer had discussed the noise issues with the management company and they would look into this. The planning enforcement officer would also look into the companies on site and their uses. They confirmed uses classes were updated in 2020 and the site’s old B1 use class had now changed to Class E.
34. In subsequent correspondence the planning officer confirmed the Council had powers under section 215 of the Town and Country Planning Act 1990 to require land or buildings to be properly maintained if their condition was detrimental to the amenity of the area. The officer did not consider the works to the wall or its condition were bad enough to warrant taking any action at that time.
35. Mr X disagreed and asserted all of the problems he had raised were a direct result of the new construction work at the site. He also asked whether the officer had now checked the use of the business on the site.
36. The Council’s records show the planning enforcement officer chased the management company in January 2024 for confirmation works to the wall were now completed. They also asked for confirmation all units on the site fell within the permitted use class.
37. The management company confirmed works were completed in December 2023 and that all units on the site fall within the permitted use class.
38. In March 2024 Mr X asked the Ombudsman to investigate his concerns. He complained the Council had not addressed his concerns about the site and had not responded to his complaint. Mr X wanted the Council to take the matter seriously and deal with his concerns about the site effectively.
39. We referred Mr X’s complaint back to the Council to consider under its own complaints procedure in the first instance. The Council told us it had not dealt with Mr X’s complaint under its formal complaints process. It had instead treated it as part of the ongoing enforcement complaint. The Council said it would respond to the complaint by 22 April 2024.
40. The Council did not respond by this date and subsequently said it would respond before the end of June.
41. In early June 2024 the Council asked the management company to confirm the use of the unit closest to where the wall had been re-rendered. The management company confirmed this was a vehicle bodywork and electronics repair business, and that it had been in occupancy at the unit since December 2022.
42. The management company also confirmed that the units complained about were occupied by independent traders and were not newly built. It said they had been reinstated from the previous state which had become dilapidated many years ago. They had been reinstated several years ago.
43. On 10 July 2024 the Council wrote to both the management company and the occupier of the unit to advice that the use of the unit as a vehicle body work and electronics repair business was not within the permitted use class. As this use would require planning permission, the Council advised that the unit occupant should apply for planning permission for the change of use.
44. The Council responded to Mr X’s complaint on 9 July 2024. It set out Mr X’s five concerns and addressed each in turn. The Council said it had visited the site and sought information from the sites management company in relation to the two buildings Mr X asserted had been erected without planning permission.
45. The Council again said that no new buildings had been erected but that two buildings which were in a dilapidated state had been reinstated a number of years ago. It did not consider it expedient to take any enforcement action because no material harm or adverse impact was being caused. The development was also acceptable in planning terms. The Council noted Government guidance was clear that in such circumstances formal enforcement action was not appropriate.
46. In relation to the unsightly wall the Council advised the reparation does not require planning permission so there is no breach of planning control. The Council had visited the site and viewed the wall and surrounding area. It noted that since Mr X’s initial complaint the rendering had been improved and cables and pipes on top of the wall had been removed. The Council did not consider the wall was causing a material harm to the amenity of the area that would warrant a section 215 notice.
47. The Council said Mr X’s complaints about noise nuisance had been investigated by the Environmental Health team who had no cause to take formal action. It said the problems were sporadic rather than continuous and would not reach a statutory nuisance level.
48. The Council had investigated Mr X’s concerns about working hours and established one tenant had worked outside of permitted hours. The management company had confirmed this tenant had now left the site, and as such the matter had been resolved. The Council asked Mr X to let it know if there were further instances of working outside permitted hours and it would investigate further. It also said the management company would ensure permitted hours were kept to.
49. Finally, the Council confirmed the site classification was for light industrial use. It had established that one tenant was operating a vehicle bodyworks and electronics repair business. This was a breach of planning control and the Council had invited them to submit a retrospective planning application to consider and assess the change of use.
50. Mr X was not satisfied with the Council’s response. He maintained the two buildings were constructed approximately three years ago. He also disputed the Council’s view that no material harm or adverse impact was caused to the amenity of the site. He asserted the construction works should be compliant with planning and building regulations.
51. Mr X acknowledged it had been established in 2021 that the noise could not be considered a statutory nuisance. However he maintained the noise levels were not compatible with light industrial use. Mr X noted he had provided videos in September 2023 of both the new units working out of permitted hours with noise. The tenants of both units were still at the site making excessive noise and occasionally working outside permitted hours.
52. It was one of these units that operates as a vehicle body work and electronics repair business. Mr X was unhappy the Council had told him in September 2023 that there was no breach on planning control but now admitted there was. He was also unhappy the Council had invited a retrospective planning application, which would prolong the disturbance, rather than take enforcement action.
53. In response to my enquiries the Council says it has been proactively investigating this matter. It says it has used a varied degree of enforcement methods to regularise matters by remedial works on site and more latterly by formal notices.
54. In relation to noise nuisance the Council notes that there have been no other complaints from any other neighbours and disturbance appears to be sporadic. From Environmental Health's point of view the noise does not reach the threshold to be deemed a statutory nuisance.
55. The Council chased the management company for a retrospective planning application. In September 2024 the management company told the Council the tenant had refused to apply for planning permission as they did not consider it was necessary.
56. In early November 2024 the Council sent a Planning Contravention Notice (PCN) to the tenant requesting further information about the use of the unit. The tenant returned the PCN on 22 November 2024. The Council was satisfied planning permission was required and has confirmed it was drafting an Enforcement Notice for service in early 2025.
57. The site’s management company has since confirmed the tenant will relocate to a different site.

Analysis

58. Although the Council says it has been proactively investigating this matter, the documentation provided does not support this.
59. The Council contacted the site’s management company in late 2022/ early 2023 regarding Mr X’s concerns but did not visit the site at this stage. It accepted the management company’s explanation that the lean to buildings were reinstated from a derelict state rather than newly built as Mr X asserted without seeing the building or requesting photographs or supporting evidence.
60. It is also unclear from the documentation provided how Council established in September 2023 that the building works had been completed. Or that there was no breach of planning permission regarding the use of the site and any that breach regarding operating hours had now stopped. The Council has not provided any evidence of how it considered these issues or arrived at its decision. There had not been any recent site visits or contact with the management company. And subsequent documentation shows the Council’s position was not correct.
61. The Council did not visit the site until December 2023, following Mr X’s formal complaint. Following this visit the Council confirmed that works were not complete, but that whilst not ideal, the condition of the site was not bad enough to require the Council to take any action. It also confirmed it was not expedient to take enforcement action in relation to the lean to buildings. Mr X disagrees with the Council’s position but provided it has properly considered the issues this is a decision the Council can take.
62. Following the visit the Council also told Mr X it would look into whether the companies on the site were operating outside the light industrial use classification. The Council appear to have done this by asking the management company to confirm all units on the site fell within the Class E planning use (former class B1). It did not ask for details of how each unit was being used, or seek to verify the use itself. The Council accepted the management company’s assurance that all of the units did fall under Class E.
63. In response to the draft decision the Council has provided evidence that the site is not solely light industrial use. Rather the site has permission for mixed use, with a number of heavy industrial units on the site. It is therefore unclear why the Council would ask the management company to confirm that all units were Class E use. Or why it would accept, without question or clarification, its assurance all units fell under Class E.
64. The Council’s records suggest it did not consider the use of the site further until June 2024 when it asked the management company to confirm how particular units were being used. The Council then immediately identified a breach of planning control and took action to address this.
65. Mr X is unhappy the Council invited a planning application to regularise the use rather than stop it, but this is in line with Government guidance and is a decision the Council was entitled to take.
66. While we would not criticise the Council’s action once it had identified a breach of planning control, I consider it could have identified this breach much sooner. The management company told the Council that the unit had been operating as a vehicle bodyworks and electronics repair business since before December 2022.
67. Had the Council properly investigated Mr X’s concerns about the use of the site and the nuisance this created at the outset this breach could have been identified and addressed much sooner.
68. I consider the Council’s failure to properly investigate Mr X’s concerns about the use and appearance of the site in a timely manner is fault.
69. There was also fault in the way the Council has considered Mr X’s complaint. Mr X’s letter was addressed to the complaints team/ customer services and was clearly headed as a complaint. It should have been dealt with under the Council’s complaint procedure, and not as part of the ongoing enforcement investigation. The Council’s complaints procedure says it will acknowledge complaints within five working days and respond within 20 working days. In this instance Mr X made a complaint on 27 November 2023 which the Council responded to on 9 July 2024. This is significantly outside the Council’s published response time. Delays of this nature are clearly unacceptable and amount to fault.
70. Having identified fault I must consider whether this has caused Mr X a significant injustice. Mr X has experienced frustration, distress and uncertainty as a result of the fault identified. He has also experienced noise nuisance from the unauthorised use of a unit close to his home for longer than he would have but for the fault.

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Agreed action

71. The Council has agreed to:
• apologise to Mr X for the frustration, distress and uncertainty he has experienced as a result of the fault identified. 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 in my findings.
• pay Mr X £250 to recognise the frustration, and distress and prolonged nuisance he has experienced as a result of the fault identified.
72. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.
73. The Council has also agreed that within three months of the final decision on this complaint it will:
• consider what changes to practice and procedure are necessary to avoid delay in action and the failure to properly investigate planning enforcement complaints and planning enforcement enquiries in the future.
• reviews its complaint handling procedure and explain what service improvements it will make to prevent similar occurrences. Any service improvements identified should ensure that complaints made to the Council are processed and responded to in line with its complaint policy.

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Final decision

74. The Council’s failure to properly investigate Mr X’s concerns about the use and appearance of the site in a timely manner is fault. This fault has caused Mr X an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman