Summary: We will not investigate this complaint about the Council failing to take appropriate enforcement action against noise nuisance and breaches of planning control at a site near the complainant’s home. There is not enough evidence of fault in the way the Council has handled these issues, and we cannot achieve the outcome the complainant is seeking.

The complaint

1. Mr X complains:
• The Council has failed to take appropriate enforcement action against noise nuisance coming from a site near his home.
• The Council has failed to take appropriate planning enforcement action since refusing a retrospective application for the use of the site.

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The Ombudsman’s role and powers

2. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. We can 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. The Information Commissioner's Office (ICO) considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

5. I considered:
• information provided by Mr X and the Council, which included its complaint responses and an update on the status of the planning enforcement and noise nuisance issues at the site.
• the planning application and planning appeal history for the site, available on the Council’s and Planning Inspectorate’s websites.
• the Ombudsman’s decision on Mr X’s previous complaint that the Council had failed to take planning enforcement action against breaches of planning control at the site.
• the Ombudsman’s Assessment Code.

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My assessment

6. We have previously considered a complaint from Mr X about the Council’s handling of the planning enforcement case prior to the submission of the retrospective application. We do not reopen matters which have already been considered under a previous case, so we will not revisit these issues again now.
7. And whilst I appreciate Mr X says his amenity is significantly impacted by the use of the site, the Ombudsman is not an appeal body. This means we do not overrule Council decisions or tell it how it should operate its services. Rather, we look at whether there was fault in the way it makes its decisions. If we decide there was no fault in how it did so, we cannot question whether it should have reached a particular decision or say it should have reached a different outcome.
8. I find there is not enough evidence of fault in the way the Council has handled the noise nuisance allegations, or the planning enforcement case since it determined the retrospective application, to justify starting an investigation.
9. In reaching this view, I am mindful that:

Environmental health issues

• the Council conducted noise monitoring on two occasions in mid-2023 but a statutory nuisance was not identified. An abatement notice was then served following a third period of noise monitoring.
• further noise monitoring and officer visits have since been undertaken, but no breaches of the abatement notice have been identified.
• the Council has considered Mr X’s own evidence/recordings and explained why it can only attach limited weight to these.
• the Council has also explained why it does not consider it appropriate to issue a Community Protection Notice under the provisions of the Anti-Social Behaviour Act.

Planning enforcement issues

• After refusing the retrospective application, the Council sought legal advice and then issued a planning enforcement notice.
• it will be for the Planning Inspectorate to decide the merits of the appeal against the enforcement notice.

10. Mr X may well disagree with the Council’s environmental health and planning enforcement decisions for this site, but they are made by officers exercising their professional judgement and their merits are not open to review by the Ombudsman. In other words, we cannot determine if a statutory nuisance is occurring, or direct the Council to take certain planning enforcement action, so we cannot achieve the outcome Mr X is seeking.
11. Finally, I understand Mr X has contacted the ICO about information he believes the Council is withholding in relation to the number of noise complaints it has received. With reference to paragraph 4 above, it seems reasonable to expect Mr X to continue to pursue this matter with the ICO, so the Ombudsman will not investigate this aspect of the complaint.

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Final decision

12. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the way it has handled the noise nuisance case, or the planning enforcement case since the retrospective application was refused. We also cannot achieve the kind of outcome he is seeking.

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Investigator's decision on behalf of the Ombudsman