Summary: Mr X complained the Council failed to take planning enforcement action against breaches of planning control including issues of dust, light pollution, noise and operating hours. The Council used its professional judgment to determine what action was proportionate. This included issuing a breach of condition notice to ensure the dust doors are correctly installed.

The complaint

1. Mr X complains the Council is failing to take planning enforcement action against breaches of planning control including issues of dust, noise, light pollution and operating hours.
2. Mr X says the situation has been stressful and the pollution from the site affects his enjoyment of his home and he is unable to sit outdoors.

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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. 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

5. My investigation will focus on issues from January to October 2024. Mr X complained to the Ombudsman in October 2024 and so it is appropriate to consider the actions in the period preceding his complaint and not matters afterwards.

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

Enforcement

8. 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.
9. 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.
10. 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.
11. 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 60)

Planning Enforcement Options

12. Councils have a range of options for formal planning enforcement action available to them, including:

• Planning Contravention Notices – to require information from the owner or occupier of land and provide an opportunity to rectify the alleged breach.
• Planning Enforcement Notices – where there is evidence of a breach, to identify it and require action to remedy it.
• Stop Notices - to prohibit activities without further delay where it is essential to safeguard the public.
• Breach of Condition Notices – to require compliance with the terms of planning conditions already decided necessary for approval of the development.
• Injunctions – by application to the High Court or County Court, the Council may seek an order to restrain an actual or expected breach of planning control.

13. However, 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.

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Key facts

15. This section sets out the key events in this case and is not intended to be a detailed chronology.
16. Mr X previously complained to the Ombudsman about fault in the planning application process for a waste management site near his home. Mr X’s property does not directly adjoin the site but is situated approximately 200 metres away with roads, including a main road, houses and other businesses in between.
17. Mr X has raised concerns with the site since the business started in 2018. However, as explained above this complaint is only concerned with actions from January to October 2024. Mr X made a formal complaint to the Council in August 2024. He raised concerns about breaches of planning control including a light staying on outside the operating hours and dust leaving the site. The Council’s response dated 12 September explained it had carried out negotiations with the site operator regarding the light and found a solution. It also said it had served a BCN in May 2024 regarding the dust and the operator had submitted a discharge of condition application which it was still considering.
18. Mr X escalated his complaint to stage 2 of the complaint’s procedure on 17 September 2024. Other issues raised included Mr X saying the Council should carry out more site visits and not expect the public to do the Council’s work for it; the replacement doors are not fit for purpose and breaches of operating hours. The Council’s response dated 3 October explained it takes proportionate action to monitor sites but reports from the public providing evidence can be helpful. It said it had visited the site and is satisfied the doors are effective. It did not provide any specific response to the issue of breaches of the operating hours.
19. Mr X then escalated his complaint to the Ombudsman on 21 October 2024.

Dust

20. In November 2023, Mr X noted that the dust issues had improved. However, he contacted the Council on 30 April 2024 saying the dust blinds on one door at the site were broken. The Council served a BCN on the site operator on 15 May requiring it to take action by 15 June.
21. Mr X sent further emails in June about breaches of planning control including missing dust screens, working outside operating hours and doors left open. Mr X mentions dust blowing towards the city centre but did not mention that his property was specifically affected. The Council visited the site on 26 June and had contact with the site operator’s agent the following day.
22. In July, the site operator submitted an application to discharge the condition on the planning permission regarding the specification for the doors. The Council notified Mr X of the application and explained this was not an issue which required it to consult with the public. The Council approved the application on 10 September and then carried out an unannounced site visit on 20 September. It noted the site was tidy and the doors had been correctly installed. The Council closed the enforcement case in respect of the dust issue on 4 October as there was no longer a breach of condition and so no further action required.
23. The information provided indicates the Council was aware of, and took appropriate action in respect of the dust issues. It opened an enforcement case and served a BCN. The site operator chose to submit an application for the discharge of the condition relating to the doors which was correctly considered and approved by the Council. The Council then inspected the site and took the view there was no longer a breach of condition. I am satisfied the Council has used its professional judgement in respect of the dust issues and the doors for the building. Even if Mr X disagrees with the decisions made by the Council about the suitability of the doors, there is no evidence of fault in how the Council dealt with Mr X’s reports and so I cannot criticise the decision made. I have not considered matters after Mr X made his complaint to the Ombudsman in October 2024.

External light

24. Mr X complained in February 2024 that an external light was left on at the site outside of normal operating hours. He made a further complaint in March. The Council wrote to the operator reminding it that lights should not be left on after operating hours. Mr X made a further complaint in May. In July the Council requested the operator to change the direction of all external lighting to prevent light being visible to residential properties north of the site. The Council then closed the case.
25. Mr X contacted the Council in August 2024 disagreeing with the outcome. He noted that lighting could be observed beyond the boundary of the site. An Environmental Health officer considered the case and made a professional judgement that the lighting would not disturb sleep and therefore would not constitute a nuisance. The Council advised Mr X of the outcome of its consideration and provided details of how to make a formal complaint if he disagreed. There is nothing to suggest Mr X made a further formal complaint about the external lighting.
26. I am satisfied the Council investigated Mr X’s complaints about the lighting. It took action and advised the operator to make changes. The Council then used its professional judgement that the light would not constitute a nuisance. I note that Mr X lives some distance from the site and that he has not provided any details to show that he is significantly adversely affected by the lighting. I wrote to Mr X and asked him about how the light affected him personally but he did not reply. On the basis of the information I have seen, there is no fault causing a significant injustice in respect of the light.

Noise

27. The Council received a complaint about noise in February 2024. It sent Mr X an email seeking further information about how he was affected but closed the case when no response was received. A further complaint received in November 2024 concluded the noise was from night time rail works and not from the waste management site.
28. Based on the evidence provided, there is no evidence of fault causing a significant injustice in how the Council dealt with noise reports.

Operating hours

29. Mr X’s reports to the Council often include actions occurring outside the permitted operating hours. Many of his reports concern doors being left open after the permitted hours. I have not seen evidence to suggest Mr X’s reports included details of operations at the site outside the permitted hours that had a significant detriment to him.
30. As explained above, the Council is not obliged to take enforcement action even if there is a breach of planning control. Guidance requires it to consider if there is harm being caused and to act proportionately. The Council can decide what action to take which can include informal approaches or more formal enforcement action. I am aware the Council has seen evidence from the site operator which indicated that on certain days when reports were made, there was no activity taking place outside the permitted hours. The Council has therefore decided not to take further action, a decision Mr X may not agree with but which the Council is entitled to take.

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Decision

31. I find no fault causing a significant injustice and so will not investigate the complaint further.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman