Summary: We will not investigate this complaint about the Council’s investigation of a breach of planning control. We have not seen enough evidence of fault in the Council’s actions to justify an investigation.

The complaint

1. Ms X complains the Council has failed to properly investigate and take enforcement action against breaches of planning control at an industrial estate close to her home.

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The Ombudsman’s role and powers

2. We 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. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating.

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

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How I considered this complaint

3. I considered information provided by Ms X and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The Council has considered the reports of breaches of planning control at the site.
6. It says the site has 11 main buildings that are used for different purposes such as office, light industrial and warehousing or storage purposes
7. It says that in 2017 it considered a planning application at the site and no information disputing these uses were put forward. The site is also a rural employment area in the Council’s Local Plan.
8. The Council has explained to Ms X that planning use classes B1, B2 and B8 changed to class E(g)(iii) in 2020. Class E(g)(iii) says:

“…any industrial process being a use which can be carried out in any residential area without detriment to the amenity of that area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit.”

9. It also confirmed that development is defined as carrying out building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land change of use.
10. The Council is satisfied there is no breach of planning control at the site.
11. I understand Ms X disagrees with the Council. She is concerned about noise from a gym on the site and also traffic noise. However, the Council confirms its’ environmental health officer has written to tenants on the site warning them about noise nuisance.
12. Noise nuisance is a separate issue from a breach of planning control. Should Ms X experience noise nuisance, she can report this to the Council who will consider whether a statutory nuisance is occurring. Section 82 of the Environmental Protection Act gives complainants the right to approach the magistrates’ court directly and apply for an abatement order. This process does not involve the council, and the court will instead consider the complainant’s evidence itself and decide whether a statutory nuisance exists. This process is also open to Ms X if she is dissatisfied with the Council’s actions on her reports of noise nuisance.

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Final decision

13. We will not investigate Ms X’s complaint because we have not seen enough evidence of fault in the way the Council considered her reports of breaches of planning control.

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Investigator's decision on behalf of the Ombudsman