Summary: Mr X complained about the Council’s handling of his concerns about a breach of planning condition. We found no fault in how the Council reached its decision there was no breach of the condition. However, the Council was at fault in not considering his complaint about that decision. To address the frustration this caused, the Council agreed to apologise to Mr X.

The complaint

1. Mr X said the Council failed to properly investigate his reports of a breach of a planning condition (‘the Condition’) on a site near his home (‘the Site’), and then refused to consider his complaint about the matter. Mr X said the failure to comply with the Condition caused unacceptable noise that badly affected his enjoyment of his home. Mr X wanted the Council to enforce the Condition and stop the noise.

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The Ombudsman’s role and powers

2. 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)
3. Where we find fault, we must also consider whether that 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. In his complaint, Mr X referred to statements made in an email the Council sent him several years ago (‘the Email’). The Council sent the Email with a copy of the planning permission that included the Condition (‘the Permission’). The Email and the Permission were not fully consistent. A complaint now about any inconsistencies between the Email and Permission would be a late complaint (see paragraph 4 of this statement). I saw no good reason to investigate now the contents of the Email. The Condition was enforceable despite the passage of time. My focus therefore was the Council’s investigation into the alleged breach of the Condition and not the contents of the Email.

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How I considered this complaint

7. I have:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared Council information with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

8. Most development needs planning permission from the local council. Councils often place conditions on planning permissions to regulate and control any development they approve.
9. Development without the necessary planning permission or that does not comply with a planning permission and its conditions, will be a breach of planning control. Councils should investigate reported breaches but planning enforcement is discretionary. This means councils may decide to take informal action or not to act at all in response to any breach they find.
10. Government guidance says councils 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 approve a planning application for the unauthorised development.
11. The Council has a 2018 Better Regulation and Enforcement Policy covering its enforcement powers and duties. The policy sets out the Council’s approach to its enforcement and reflects Government guidance about proportionate responses. The Council also publishes its planning enforcement protocol on its website. The protocol says planning enforcement is a lengthy process, sometimes taking several months or years to fully resolve. It is therefore impossible to give a fixed time for a case but it will update complainants after 12 weeks. The protocol says the Council will tell complainants about its enforcement decisions. The protocol also reflects Government guidance about proportionality and considering ‘planning harm’ when deciding whether to take enforcement action.

What happened

12. Mr X lived near the Site, which had planning permissions for business activities, including the Permission with the Condition. The Condition aimed to protect nearby residents from noisy named activities. A few years after the grant of the Permission, Mr X believed a business was not complying with the Condition and reported noise from the Site to the Council.
13. The Council opened a planning enforcement case and wrote to Mr X explaining the investigation process could take “several months”. The Council’s letter reflected the Government’s advice about proportionate enforcement responses. And said the Council would normally only start formal action where it found a breach unacceptably harmed the public interest. The Council’s letter said COVID-19 restrictions were affecting its usual enforcement standards and timings. And, it would contact Mr X “once appropriate action has been identified”. The letter gave Mr X contact details for the Council should he need more information. The Council also wrote to the business.
14. The Council’s records showed Mr X reported the noise on five days over the following five weeks. Meanwhile, the business wrote to the Council disputing any breach of the Condition but admitting that other activities on the Site caused noise.
15. During the following eight months, the Council made two visits but found no evidence of noise from the Site. Mr X then started to contact the Council again about noise. Mr X said, after a time, noise from the Site always restarted and the Council needed to deal with the matter. Mr X made three further noise reports over the following four months. The Council again contacted the business, which said there had been no change to activities on the Site. The Council also made another visit but heard no noise from the Site. The Council wrote to Mr X and said it would continue to monitor the Site.
16. Six months later, Mr X contacted the Council saying noise from the Site had been increasing over the last month and it was noisy that day. The Council acknowledged Mr X’s contact and, about two months later, made a further visit. Soon afterwards, Mr X reported noise from the Site on two separate days over two weeks.
17. The Council replied recognising that Mr X was reporting noise due to a breach of the Condition but saying the business denied any breach. So, it was continuing to investigate as it needed evidence of a breach of the Condition. The Council said it would try to watch the Site more closely and so bring the investigation to a close. The Council apologised for the delay in deciding the matter but said gathering the necessary evidence was difficult.
18. Mr X replied saying he would complain again if the noise restarted. Mr X also sent the Council a copy of the Email. Mr X said the Council should know if the Site complied with what the Email said about the Condition. The Council told Mr X it needed time to consider the Email, which was not on its planning file, as its contents were not consistent with the Permission. The Council recognised Mr X’s frustration with the time it was taking but said it needed evidence of any breach of the Condition.
19. Over the following four months, Mr X contacted the Council about noise from the Site on four days. The Council, having again visited the Site, wrote to Mr X saying it had carried out a lengthy investigation into his sporadic reports of noise breaching the Condition. The Council said it had not evidenced a breach of the Condition and so would close its enforcement case.
20. Mr X said the Council’s decision was unacceptable and it had not dealt with the Email. About three weeks later (and the following week), Mr X reported noise from the Site to the Council. The Council contacted the business to arrange another visit. The Council also wrote to Mr X saying it would visit the Site to consider what the Email said about equipment on the Site (‘the Equipment’).
21. The Council wrote to Mr X after the visit. It said the Equipment on the Site reflected statements in the Email and the business was servicing the Equipment to keep it in good working order. The Council said it was satisfied the business was complying with the Condition. The Council also pointed out the Condition and Email did not cover all buildings, equipment and activities carried out on the Site. So, while the Condition sought to reduce noise, it did not eliminate noise from the lawful use of the Site, including activities that took place in the open air. The Council confirmed it found no breach of planning control on the Site and so would take no further action. It was over two years since Mr X had first reported noise from the Site.
22. Mr X complained to the Council. Mr X said he could see the Equipment from the road and it was not in line with the Email. The Council was failing to act despite the business breaking planning rules. The Council refused to consider Mr X’s complaint under its complaints procedure. The Council said it had carried out a planning enforcement investigation into Mr X’s concerns about noise from the Site. And too much time had passed for it now to consider the complaint.
23. Mr X came to the Ombudsman saying the Council had not properly investigated his report of a breach of planning control. And the Council was wrong to say his complaint was out of time when it had taken years to investigate the breach.

What the Council said to the Ombudsman

24. The Council said it tried to get information from complainants when dealing with noise related planning enforcement cases. Complainants could provide details of the noise, its frequency and timing, to help with monitoring and site visits. Mr X had not provided log sheets giving information about the noise but emailed following noise incidents. Mr X’s reports were of sporadic noise. Complaints about sporadic noise usually took longer to investigate as it sought to identify any patterns of noise and to evidence any breach and any impact on residents. Here, its investigation did not identify any clear pattern of noise from Mr X’s reports.
25. The Council also pointed to emails from Mr X that showed there were periods of quiet. It therefore kept its enforcement case open and under review for a long time. When Mr X reported noise, it contacted the business to see if working practices had changed or any specific noise event had taken place. But it found nothing to explain any of Mr X’s noise reports. Its enforcement investigation had included visits to the Site. But it’s planning enforcement officer had not found noise audible outside the Site or linked to a breach of the Condition.
26. The Condition was enforceable. But it had not been able to evidence Mr X’s reports of a breach of the Condition. The Council said Mr X hearing noise did not mean there was a breach. And the Condition did not mean use of the Site would not result in noise that nearby residents might hear. The Condition aimed to reduce noise from named activities so there was no unacceptable impact on residents. Other activities on the Site, not covered by the Condition, produced noise. However, during visits by its planning enforcement officer, it did not find any noise causing unacceptable planning harm.
27. When Mr X brought the Email to its planning enforcement officer’s attention, a further visit took place, during which the business used the Equipment. However, the Permission did not need the installation and use of the Equipment. The business used the Equipment to reduce ‘human error’ and so help it to comply with the Condition.
28. The Council recognised Mr X complained shortly after it made its planning enforcement decision. It therefore should not have refused to consider his complaint as ‘out of time’. The Council offered its apologies but considered this would not have avoided a complaint to the Ombudsman.

Consideration

Introduction

29. We are not an appeal body. Our role is to consider whether there is evidence a council has acted with fault in reaching a decision. Without evidence of fault, we cannot question a council’s decision however strongly a complainant may disagree with it (see paragraph 2). Here, Mr X complained about the Council’s investigation into his reports of noise from the Site, which noise he considered arose from a breach of the Condition. I carefully considered all the information provided by Mr X and the Council to write this statement. However this statement focused on how the Council reached its planning enforcement decision. It also addressed Mr X’s linked concern about the Council’s refusal to consider his complaint.

Enforcement of the Condition

30. The evidence showed the Council’s planning enforcement investigation took over two years. That was a long time. However, at the start of the investigation, the Council told Mr X cases could take several months to resolve, which reflected information published on its website about its enforcement protocol. The Council also let Mr X know it was continuing to monitor the Site during the two years.
31. The Council’s investigation included consideration of the Permission and the Condition, visits to the Site, and contact with both the business and Mr X. These were steps reasonably to be expected in investigating a reported breach of planning control. I therefore saw no evidence of fault in how the Council investigated Mr X’s reports of noise from the Site as a breach of the Condition. Having taken those steps and kept the investigation open for a significant time, the Council was entitled to reach its decision that no breach had, or was, taking place. Without evidence of fault, I could not question that decision. And, in line with its published protocol, the Council wrote to Mr X to tell him of the decision.
32. However, while not falling below acceptable administrative standards, the Council could learn from what happened here to improve its enforcement service. For example, the Council referred to noise logs (see paragraph 24). But I saw no evidence the Council asked Mr X to complete noise logs. I also saw no evidence that at an early stage the Council explained its investigation approach. The Council could have quickly explained to Mr X the case would take significant time because of difficulties in investigating sporadic noise without any clear pattern. The Council could also have clarified at the start of its investigation the Condition only dealt with noise from named uses. And other uses on the Site caused noise. Providing added relevant information at an early stage of an investigation may help the Council to better manage a complainant’s expectations. It may also help complainant’s to better understand the planning enforcement process.

Complaint handling

33. The Council recognised it was wrong to view Mr X’s complaint as ‘out of time’. I agreed. There was fault here. As Mr X would likely have been frustrated by the Council’s refusal to consider his complaint, I also found the fault caused injustice. However, if the Council had processed Mr X’s complaint, it is unlikely this would have resolved the complaint to Mr X’s satisfaction. Mr X would therefore still have brought his complaint to the Ombudsman.

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Agreed action

34. I found no fault causing injustice in the Council’s planning enforcement decision making. However, there was fault in the Council’s complaints handling and it offered to apologise. I found the proposed apology a proportionate, appropriate and reasonable remedy for the injustice the fault caused Mr X. So, the Council agreed, within 10 working days of this statement, to send Mr X a written apology for the distress caused by its failure to put his complaint through its complaints procedure.
35. The Council also agreed to provide the Ombudsman with evidence it had complied with the agreed action at paragraph 34.

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Final decision

36. I completed my investigation on the Council agreeing the action at paragraph 34, finding:

• no fault in the Council’s planning enforcement decision making; and
• fault causing injustice to Mr X in the Council’s complaint handling.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman