Summary: Mr X complained about the Council’s delay in dealing with a change of use of land near his home. We found no fault in how the Council investigated the reported breaches of planning control arising from use of the land.

The complaint

1. Mr X complained about the Council’s delay in dealing with a change of use of land near his home. Mr X said noise from the business that had started to use the land significantly disrupted his family’s sleep, which adversely affected their health and wellbeing. Mr X wanted the Council to deal with the problems caused by the noisy business use so he and his family could get their lives back.

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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 a council made its decision. If there was no fault in how the council made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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)
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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How I considered this complaint

5. I considered evidence provided by Mr X and discussed the complaint with him. I also considered evidence from the Council and relevant law, policy and guidance. I gave Mr X and the Council an opportunity to comment on my draft decision and considered any comments received before making a final decision.

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What I found

Background

Statutory nuisance

6. Councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Activities a council might decide are a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street; and
• smells and fumes from industry, trade or business premises.

7. To be a statutory nuisance, the activities must:

• unreasonably and substantially interfere with the use or enjoyment of a home or other property; and/or
• injure health or be likely to injure health.

8. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather and assess evidence of, for example, the timing, duration, and intensity of the alleged nuisance. Officers use their professional judgement to decide whether a statutory nuisance exists.
9. The law says a potential nuisance must be judged on how it affects the average person. Councils cannot act to stop something that is only a nuisance to the complainant because they have special circumstances, for example, a medical condition making them unusually sensitive to noise or fumes.

Development control

10. Most development, which includes a material change in the use of land, needs planning permission from the local council. A grant of planning permission will usually include conditions to control and regulate the development.
11. Once permission is granted, people sometimes need to change their development proposals. Some changes may affect conditions on the original planning permission. If so, people may apply for permission to develop without complying with those conditions. (See section 73 of the Town and Country Planning Act 1990, as amended (‘Section 73’).) In dealing with a Section 73 application, the council must publicise it and give people an opportunity to comment before making a decision. Councils must make most decisions within eight weeks. If the council approves a Section 73 application, it may apply different conditions to the new planning permission.

Planning enforcement

12. Carrying out development without the necessary permission or without complying with the conditions on a permission may be a breach of planning control. Councils have legal powers to take enforcement action if they find planning rules have been breached. Government guidance says, as enforcement action is discretionary, councils should act proportionately in responding to suspected breaches. (See National Planning Policy Framework (NPPF) paragraph 60.) This means councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements.
13. When deciding whether to enforce, councils should consider the likely impact of harm to the public and if they might grant approval on receiving an application for the unauthorised development or use. Planning applications made after development takes place are ‘retrospective’ applications.
14. The Council had a November 2020 Local Enforcement Plan (the Plan). The Plan referred to and reflected the NPPF guidance, including the principle of proportionality and assessing whether a breach caused serious planning harm. The Plan provided for site visits to establish any breach. The Plan said the Council would prioritise cases so it could investigate the most serious breaches likely to cause most harm to the public
15. When deciding whether enforcement action was expedient, the Plan said a case might be referred to another department considered better placed to deal with it. And, normally, the Council would first try to resolve a case by negotiation making every attempt to encourage those responsible to resolve the matter voluntarily. If informal negotiation was unsuccessful and the breach had significant harmful effects, the Council would normally take formal enforcement action.
16. The Plan also said the Council would acknowledge a reported breach within five working days and provide a detailed response or update within 25 working days. After this, those reporting a breach should wait for the Council’s enforcement team to contact them and it would tell them about key stages in the investigation. The Plan said dealing with some cases could take a long time and be complex. There might be lengthy negotiations and legal time periods for notices, appeals and prosecutions.

Summary of what happened

The development

17. Land near Mr X’s home (‘the Site’) had conditional planning permission (‘the Permission’). The Permission was for industrial use of the Site that did not adversely affect a residential area. A condition on the Permission restricted the hours during which named activities could take place at the Site (‘the Condition’). A new company (‘the Company’) moved to the Site. Residents, including Mr X, complained to the Council about noise and odours from the Site and breach of the Condition.

Year one

18. In the year that followed, both the Council’s planning enforcement service (PES) and environmental protection service (EPS) investigated residents’ complaints. The investigations included visits to the Site and securing information from the Company about its activities. The PES did not consider the Permission applied to the Company’s use of the Site. The PES said the Company should either apply for planning permission for its use or reduce noise from the Site to comply with the Permission.
19. Meanwhile, on advice from the EPS, the Company took steps to reduce noise from the Site and commissioned a noise survey. And, about three months after residents had first complained, the EPS and Company agreed a three-month noise improvement plan for the Site. The Company updated the Council about noise reduction work and other mitigation measures it carried out on the Site throughout the three months. (While the Company carried out the works, residents noise complaints continued.) The Company’s contractor had some supply problems that led to the noise improvement plan taking about four months to complete. (The Company told the Council, residents and other interested parties about the supply problem.)
20. The EPS also carried out an odour survey. The EPS found insufficient evidence of a statutory nuisance due to odours from the Site. The EPS told the Company and residents, including Mr X, of its findings and closed its odour investigation.
21. Residents, including Mr X, reported breaches of the Condition. The Council referred the reports to the Company. The Company responded to the breaches and said it had reminded staff of the hours set out in the Condition.
22. In the four months after completion of the noise improvement plan, the Council made further visits to the Site. The visits included residents and other interested parties. The EPS found no statutory noise nuisance and closed its investigation.

Year two

23. About a year after residents first complained, the Company made two Section 73 applications (see paragraph 11 of this statement). The Section 73 applications sought to vary the Condition and another condition on the Permission. Before the Council decided the applications, the Company altered their proposals. This meant the Council publicised the applications twice, first for the original proposals and later for the altered proposals. Mr X and other residents objected to both proposals.
24. A Council planning officer prepared reports assessing the Section 73 applications. The reports recognised residents’ questioned whether the Permission applied to the Company’s use of the Site. The reports said officers were assessing use of the Site and were commissioning an independent noise survey. The assessment would confirm whether the Company needed to apply for planning permission for a change of use of the Site. And, deciding the Section 73 applications would not prejudice the Council’s ability either to ask for a planning application for a change of use or take enforcement action.
25. One report recommended approval of the final proposed changes to the Condition. The other report recommended refusal of the proposed changes to another condition. Councillors at the Council’s Planning and Highways Committee considered the reports. Mr X and other residents attended the committee meeting. Councillors decided to refuse both applications. It was about seven months since the Company had made the two Section 73 applications.
26. The Company appealed to the independent Planning Inspectorate (PINs) against the Council’s refusal to change the Condition. (The Company did not appeal the refusal to change the other condition). About seven months later, PINs allowed the appeal but further altered the Company’s proposed changes to the Condition. (In this statement, ‘the Condition’, includes the Condition as changed by PINs.) The planning permission issued by PINs included a new condition. The new condition gave the Company two months to get the Council’s approval to a Noise Management Plan for the activities named in the Condition.
27. The Company submitted, and the Council approved, a Noise Management Plan within the following two months.
28. Meanwhile, throughout year two, the PES had continued to communicate with the Company. The contacts had included arrangements for the independent noise survey and had addressed residents’ reports of breaches of the Condition. In response to some alleged breaches, the Company gave the Council timed CCTV evidence showing activities on the Site. The Council also told the Company that continued breaches of the Condition could result in formal enforcement action.

Year three

29. By year three, the independent noise report commissioned by the Council had been completed. The Council shared the report with the Company saying it showed noise from the Site had a significant adverse impact on nearby homes. The Council told the Company the Permission did not apply to its use of the Site. (In this statement, ‘the Permission’ includes the Permission as varied by PINs on appeal.) The Council asked to meet with the Company. The Council and the Company also continued to deal with residents’ reports about breaches of the Condition.
30. Over the following three months, the Council both met and communicated in writing with the Company about its continued occupation of the Site. The Council and the Company also continued to address residents’ reports of breaches of the Condition. The Company and the Council then reached an informal, temporary, agreement that allowed the Company to continue using the Site. The agreement included the Company changing its working practices, which aimed to further reduce noise. The Council told the Company it would take enforcement action if it failed to comply with the informal agreement. The Council expected the Company to apply for planning permission for its use of the Site within the following two months.
31. The Council and the Company continued to keep in touch. The Company took further steps to investigate and mitigate noise on the Site. The Company also sought legal advice.
32. Meanwhile, Mr X had formally complained to the Council. Key issues in the complaint included:

• the inadequacy of the Permission to properly control use of the Site;
• the failure to deal with odours from the Site; and
• how the Council was dealing with use of the Site.

33. In summary, the Council’s response to the complaint was that it had investigated noise and odours from the Site and found no statutory nuisance. Its investigation of breaches of conditions on the Permission had led to Section 73 applications. And, enforcement action was normally held while planning applications, including any appeals, were decided. Its noise report had found noise from the Site had a harmful impact on nearby homes. This meant the Permission, and its planning conditions, did not apply to the Company’s use of the Site. It had agreed, temporarily, to the Company’s continued use of the Site. This was to give the Company time to make, and the Council decide, a planning application for its use of the Site. If the Company breached the agreement, it might take enforcement action. The Council recognised residents’ frustration but the case was complex and sensitive and enforcement action had to be proportionate. The Council signposted Mr X to the Ombudsman if dissatisfied with its response.
34. Meanwhile, two months passed and the Council asked the Company for an update on its planning application. In correspondence over the following three months, the Company’s final position was it had completed significant mitigation works and resolved the harm identified by the Council’s noise report. And, having taken legal advice, it would not make a planning application but suggested an alternative way forward to address any further noise complaints. In summary, the Council’s final position was to reject the Company’s alternative proposal for addressing any future noise reports. And, having further considered matters, year three ended with the Council serving the Company with a formal planning enforcement notice. The notice said the alleged breach of planning control was a material change of use of the Site without planning permission. The notice gave the Company twelve months to stop the use and remove all its plant and equipment. The Company appealed to PINs against the notice.

Year four

35. Mr X and other residents took part in the appeal. The PINs decision came about seven months after the Council had issued the enforcement notice. The PINs decision referred to a further noise report commissioned by the Company around the end of year three. And, in summary, the decision said the Company’s use of the Site had caused significant planning harm to the nearby residential area. That harm had existed for about 19 months after residents first complained about use of the Site. PINs were satisfied extensive works had since taken place that significantly reduced noise and, indirectly, odour emissions. When the Council issued its enforcement notice, noise and odour from the Site no longer caused unacceptable harm to the residential area. PINs found there was no breach of planning control, quashed the notice and said the Company’s use of the Site complied with the Permission.
36. Mr X brought his complaint to the Ombudsman.

Consideration

Introduction

37. The Ombudsman is not an appeal body and our role is not to ask whether a council could have done things better, or whether we agree or disagree with what it did. Instead, we look at the procedures a council has followed to reach a decision. If we consider it followed those procedures correctly, we cannot question whether any resulting decision is right or wrong, regardless of how strongly a complainant may disagree with it.
38. As a publicly funded body we also must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what a council did or how it acted.

Late complaints

39. The evidence showed Mr X quickly became concerned about the Council’s handling of his concerns about the Company’s use of the Site. But, more than two years passed before Mr X complained to the Council. And despite the Council signposting him to the Ombudsman, more than a further year passed before Mr X brought his complaint to us. I therefore found Mr X’s complaint was a late complaint (see paragraph 3).
40. Mr X contacted the Ombudsman after the PINs decision on the Company’s appeal against the Council’s enforcement notice. Until then, whether the Company’s use of the Site was lawful remained in dispute between the Council and the Company. And, despite the passage of time, the evidence suggested Mr X continued his contact with the Council until finally coming to the Ombudsman during year four. So, rather than limit my investigation to the 12 months before Mr X’s complaint to us, I exercised my discretion to consider the Council’s actions back to year one.

Use of the Site and planning enforcement

41. Unlike the Ombudsman, PINs are an appeal body and do look at the merits of council development control and planning enforcement decisions. Here, PINs decided the Company’s use of the Site did not breach planning control when the Council issued the enforcement notice around the end of year three. I recognised Mr X found noise and odours from the Site continued at unacceptable levels into year four. However, I had no role in or powers to override PINs decision. And PINs decided the Company’s use of the Site was lawful and in line with the Permission when the Council issued the enforcement notice.
42. However, over three years had passed between Mr X, and others, first raising concerns about use of the Site and PINs enforcement decision. That was a long time. And the PINs enforcement decision said the Company’s use of the Site had caused unacceptable planning harm before completion of significant noise reduction works. The PINs decision showed that unacceptable planning harm had lasted about 19 months from Mr X and others first reporting their concerns to the Council.
43. At the start of the 19 months, the evidence showed the Council responded without avoidable delay to concerns about the Site raised by Mr X and other residents. And, given residents highlighted noise and odour from the Site, at first both the Council’s EPS and PES responded to those concerns. Both the EPS and PES liaised with the Company and visited the Site. These were steps a council would reasonably be expected to take to investigate reports of noise and odours. The steps were also in line with the Plan, which included Council services other than the PES dealing with concerns if better placed.
44. The PES also gave the Company a choice of applying for planning permission or reducing noise. The Plan allowed the Council to seek a negotiated or voluntary resolution to a breach of planning control. So, giving the Company time to reduce noise from the Site was also in line with the Plan. And the Company engaged with the Council, including its EPS, and completed noise reduction measures during year one. The Company was therefore willing to try to resolve matters without the need for formal enforcement action.
45. The evidence also showed the Council’s EPS investigated odours from the site. Residents were aware of what was happening and some took part in visits to the Site. The Council, as PES, accepted the findings of its EPS about odour from the Site not being an issue. (A view later shared by PINs after its inspector had viewed activities on the Site, including the odours they produced, in deciding the enforcement notice appeal.) Having suitably investigated whether odours from the Site were a statutory nuisance or caused unacceptable planning harm, the Council was entitled to reach the view they were not.
46. The Council, as EPS, was also satisfied that, following noise reduction works, no statutory noise nuisance existed at the Site. The Council, as PES, had then further considered noise levels, liaising with the Company and visiting the Site. These were suitable and proportionate added steps for the Council to take. And, despite the initial noise reduction works, the Council as PES considered noise from the Site continued to cause unacceptable planning harm. Some of that unacceptable noise arose from activities covered by the Condition. The Council also decided to commission an independent noise report.
47. It took many months to arrange and complete the noise report and for the Council to then consider and, later, share the report findings with the Company. Information about noise levels from the Site would provide evidence to help inform the Council’s enforcement decision. And, if the Council decided to issue an enforcement notice, the Company would have a right of appeal to PINs against it. So, the Council might also use the noise report in justifying its enforcement decision on any appeal. Therefore, despite the time taken, I did not find the Council at fault for securing a noise report after completion of the initial noise reduction works.
48. The Company also made its two Section 73 applications. If approved, these applications might have addressed some residents’ complaints. I recognised it took significant time to process the Section 73 applications, which included an appeal to PINs. However, the evidence showed residents were aware of the applications and the Council’s continued contact with the Company about reported breaches of the Condition. And the Plan referenced that appeals could add time to enforcement investigations. I therefore did not find the Council at fault for not taking formal enforcement action while deciding the two applications and awaiting PINs appeal decision on the Condition.
49. More than 19 months had passed when the Council shared its noise report with the Company and the planning process for both Section 73 applications was fully concluded. And, after receiving the noise report, the Company carried out work aimed at further reducing noise from the Site. The PINs enforcement appeal decision later found that, at some point after the 19 months, the Company’s use of the Site no longer caused unacceptable planning harm to the nearby residential area.
50. I recognised the PINs enforcement appeal decision came over a year later. However, the Council had continued to liaise with the Company, including about reported breaches of the Condition. And, discussions had led to an informal agreement, which the Council believed would be followed by the Company’s planning application for use of the Site. The Company, having taken legal advice, then confirmed it would not apply for planning permission. The Council, having decided there was a breach of planning control that now would not be resolved informally, issued the enforcement notice. So, the evidence showed the Council continued actively to pursue matters after the first 19 months. And the Council’s approach, in making every effort to resolve the case without formal enforcement action, was in line with the Plan. I therefore did not find fault here.
51. Unfortunately for Mr X, on deciding the enforcement appeal, PINs did not find the Company’s use of the Site breached planning control. The PINs decision also effectively found that, on issue of the enforcement notice, the activities controlled by the Condition did not cause material planning harm. I recognised that Mr X continued to find the Company’s use of the Site had an unacceptable impact on his home. And, since Mr X brought his complaint to the Ombudsman, further planning matters have, and continue, to take place, involving the Council, the Company and use of the Site. So, the Council continues to investigate alleged breaches of planning control on the Site. However, the Plan recognised that dealing with enforcement cases can take a long time and, as here due to differing views about the type and nature of the Company’s use of the Site, cases can be complex. So, despite the passage of more than three years since Mr X and other residents first complained about the Site, I found no evidence of fault in the Council’s planning enforcement investigation.

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Decision

52. I found no fault.

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Investigator's decision on behalf of the Ombudsman