Welwyn Hatfield Borough Council (21 004 850)
The Ombudsman's final decision:
Summary: We found fault on Miss T’s complaint about the Council wrongly discharging a planning condition dealing with sound insulation and noise reduction. It only recently decided it had not discharged the condition, despite previously telling her it had and so could take no action. It also failed to keep her properly informed about progress on her reports about noise from a neighbouring business. The agreed action remedies the injustice caused.
The complaint
- Miss T complains the Council:
- incorrectly discharged a planning condition attached to consent for the development in which she owns a flat which dealt with sound insulation and noise reduction measures to protect it from noise; and
- failed to take proper and effective enforcement action against a nearby business which is causing a noise nuisance.
- As a result, her enjoyment of the amenities of her home is restricted as she suffers from noise nuisance when she opens her windows and excessive heat through lack of ventilation when they are closed.
The Ombudsman’s role and powers
- If we are satisfied with a council’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)
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
Relevant legal and policy considerations
- In 2010, the Government published a Noise Policy Statement for England (NPSE). The aim of this was to, “promote good health and a good quality of life through the effective management of noise within the context of Government policy on sustainable development”. The statement says this involves, “effective management and control of environmental, neighbour and neighbourhood noise […] to avoid significant adverse impacts on health and quality of life, mitigate and minimise adverse impacts on health and quality of life and where possible, contribute to improvement of health and quality of life”.
- The NPSE describes noise management as a complex issue. It notes there are no national noise limits such as air quality targets. It says sound only becomes noise (or ‘unwanted sound’), “when it exists in the wrong place or wrong time such that it causes or contributes to some harmful or otherwise unwanted effect like annoyance or sleep disturbance”. That is why the NPSE focuses on the desired outcomes of tackling noise.
- The statement says its first aim is to avoid noise which has a, “significant observed adverse level” (i.e. one where, “significant adverse effects on health and quality of life occur”). Its second aim is to, “require all reasonable steps should be taken to mitigate and minimise adverse effects on health and quality of life”, including where adverse effects on health and quality of life exist, but which may not be significant. The statement notes, however, not all adverse effects can be avoided.
- The Council’s District Plan states proposals will be refused if the development is likely to generate unacceptable noise or vibration for other land uses or be affected by unacceptable noise or vibration from other land uses. It will grant planning consent where appropriate conditions may be imposed to ensure an adequate level of protection against noise or vibration. (Policy R19)
Statutory noise nuisance
- The Environmental Protection Act 1990 (EPA) places a duty on councils to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
- Unreasonably and substantially interfere with the use or enjoyment of a home or other property; or
- Injure health or be likely to injure health.
- There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement considering several factors such as the activity, locality, time of day, frequency, and duration of the noise.
- The Council is required to investigate complaints of noise nuisance. It will gather evidence to find out whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance, it must take action to stop it. The Council must issue an abatement notice if it is satisfied a statutory nuisance exists.
- If a person breaches an abatement notice, they are guilty of an offence. A person committing an offence is liable to a fine on conviction by a Court.
How I considered this complaint
- I considered all the information provided by Miss T, the notes I made of our telephone conversations, and the Council’s response to my enquiries, a copy of which I sent her. I did not send her a complete copy because it contains information about third parties which needs to remain confidential. I sent a copy of my draft decision to Miss T and the Council. I considered their responses.
What I found
- Miss T bought her newly built third floor flat in early 2019. She bought it off-plan without viewing it. As soon as she moved in, she realised there was a problem with external noise. The constant whining noise came from a nearby business’ air conditioning units. The units are on 24 hours a day. She spoke to neighbours who also have the same problem.
- For Miss T, noise is only a problem when she opens her windows. When she does, it affects her quality of life, especially during summer. This is a problem for her as her rooms have no other form of ventilation. The noise means she cannot sleep with the windows open in the summer. When they are shut, the flat is too hot as the large south facing glass windows help store heat during the day. Miss T argues the developer installed a ventilation system which assumes windows can be opened.
- She claims the Council assumed the developer would only build small regular sized balconies and accepted its argument these were not amenity spaces. Instead, it built a larger balcony which wraps round the external corner. She argues the Council failed to consider whether British Standard 8233 applied only to small balconies. She says this standard does not apply to larger balconies like hers which are intended as amenity spaces.
- Miss T says she spoke to residents in the block of flats behind hers. They reported noise to the Council for a long time. She started to make reports to the Council’s environmental health team.
- When she examined the developer’s planning application, she found an acoustic noise report which confirmed noise levels would not exceed a British Standard (BS 4142:2014: Methods for rating and assessing industrial and commercial sound) and World Health Organisation guidelines. The developer argued residents would not need to open windows as the ventilation system fitted would meet Part L of the building regulations.
- Miss T points out no system was installed, apart from ‘trickle vents’ in the windows. She believes there was also a failure to comply with Part F of the building regulations about the system 3 ventilation system fitted. This system assumes windows can be opened.
- Miss T argues the Council failed to ensure ventilation in her flat complied with building regulations. She believes, for example, the Council failed to ensure it had information about her flat overheating when windows were closed. She also believes it failed to ensure the developer submitted a report within six months of occupation as required by a planning condition.
- She is unhappy with the way the Council dealt with her reports of noise nuisance.
- I now consider her complaints:
Complaint a): discharge of conditions
- When the Council granted planning consent for the development, it did so subject to various conditions. One condition (condition A) said no development shall take place until:
- the applicant submits to the Council, for written approval, details of sound insulation and attenuation (reduction) measures to be undertaken to insulate from noise, the development permitted (part 1);
- when occupied, the approved sound and attenuation scheme shall be implemented (part 2);
- once implemented a further report needs submitting within 6 months setting out its performance (part 3); and
- where the further report is not approved, the process from part 1 is repeated until a satisfactory level of noise attenuation is achieved (part 4).
- The decision notice explained the reason for this condition was to protect residential amenity.
- Shortly afterwards, the developer applied to discharge condition A. It sent the Council evidence in support, copies of which I have seen. This included an acoustic report carried out by an agent on its behalf.
- The report noted: the existing noise environment; sources were measured and predicted; several recommendations for noise mitigation for external amenity areas and for glazing and ventilation; the National Planning Policy Framework stating (paragraph 123) planning decisions should aim to avoid noise from giving rise to significant adverse impacts on health and quality of life because of new development; the World Health Organisation: Guidelines for Community Noise: 1999 which says to avoid any possibility of sleep disturbance, indoor guideline values for bedrooms were 30 dBL for continuous noise and 45 dBL for single sound events. These values assume the noise reduction from outside to inside with the window partly open is 15dBL.
- The report also referred to a noise survey which concluded flats facing the business needed enhanced glazing and a higher specification of acoustic vent. It recommended glazing type 2 (enhanced) and vent type C (acoustic ventilation airbricks) for bedrooms facing the factory. It said noise levels were predicted with ‘windows closed and appropriate ventilation open’.
- The Council’s environmental health officer objected to the application to discharge the condition. The officer said the agent failed to provide satisfactory evidence of the suitability and effectiveness of the proposed ‘trickle ventilation’. The officer needed more detail about the effectiveness of the ventilation scheme to show it complied with building standards and, ‘that the windows will not need to be opened to ensure sufficient ventilation is provided. Otherwise the acoustic mitigation scheme will be compromised’.
- The agent responded by sending the Council further information. The information explained what trickle vents could be installed which comply with building regulations. The agent also provided data about one of the vent types and noise levels recorded.
- The officer considered this evidence and confirmed he was happy to withdraw the objection to the application. In response to my enquiries, the Council confirmed it considered the noise impact assessment, a letter from the agent, a trickle vent brochure, a ventilation data sheet, and a date sheet. Technical officers assessed this and confirmed it was enough to discharge condition A.
- The Council’s initial position, until recently, was it had discharged condition A in 2016. The decision notice said to comply with planning consent, the development as approved must be carried out and completed according to agreed details.
- Upon completion of building works, the developer used a private approved inspector to confirm compliance with building regulations.
- The Council confirmed the further report required by part 3 of condition A, was not complied with and remains so. In its initial response to our enquiries, the Council stated it, ‘has confirmed that Condition [A] has been discharged and in light of this position it may not be expedient for the Council to pursue Enforcement action to ensure compliance with Part 3 of condition [A]’. It also said, ‘the details submitted in relation to Condition [A] were sufficient to enable this condition to be discharged’.
- In addition, the Council confirmed it would carry out a review to see if it was expedient to pursue planning enforcement action, considering its confirmed discharge of the condition.
- In May 2022, the Council decided it was not prevented from taking enforcement action. It confirmed it wrote to the freeholder of the block of flats requiring compliance with the whole of condition A. The Council says the freeholder confirmed it intends to ensure the planning conditions are discharged.
- Miss T said building control officers from another council visited in 2021 and confirmed the ventilation system fitted is ‘system 3’ (continuous mechanical extraction systems). This system requires windows to be opened to allow purge ventilation. She points out this contradicts what the developer said when applying to discharge condition A.
- I have seen an email from a building control officer from another local authority to Miss T sent in October 2021. This states the ‘type 3 system such as the system installed in your properties assumes that windows and doors can be opened to provide purge ventilation’. It told her the use of purge ventilation in the bedrooms may not meet building regulation requirements. It also explained the guidance which says where purge ventilation cannot be provided by opening windows or doors, a mechanical fan extracting to the outside could be acceptable. No alternative means of ventilation was provided within bedrooms.
- The building control officer could not say whether there was a breach of building regulations because she had not seen all the design data for what was installed. The officer pointed out she had no prior involvement as the developer used an approved inspector instead. In response to my enquiries, the Council confirmed it does not have building control officers.
- The Council also said it does not accept it wrongly discharged part 3 and 4 of condition A. This is because it has since clarified its legal position.
- In an update, the Council explained the freeholder of the building said it had appointed a specialist noise consultant to assess noise within the flats and external amenity areas. The consultant visited the site in July 2022.
- The freeholder also told it about hiring consultants to examine the ventilation system in the flats. The freeholder was to hold discussions with both consultants about ‘various possibilities’ to see if they complied with condition A. The ventilation consultant would carry out intrusive surveys along with a separate engineer in September on unoccupied flats.
- The Council explained it would take time to consider the issue of compliance. It is holding regular meetings with the freeholder. It decided not to act under the Housing health and safety rating system (HHSRS) as this would be premature because of ongoing discussions and actions. The HHSRS is a risk-based tool a council can use to identify and protect against potential risks and hazards to health and safety from identified problems in dwellings. If discussions and actions breakdown, it will proceed under the HHSRS. It also accepted its communication with Miss T could have been better.
- The Council confirmed the freeholder has now completed some pilot works which included installing acoustic trickle vents and acoustic airbricks. The Council expects a report shortly setting out noise readings taken to show whether these works are enough to mitigate the noise from the factory. It confirmed it continues to consider whether enforcement action is needed under the noise condition and will review it when it receives this report.
Analysis
- I make the following findings on this complaint:
- We cannot investigate any complaint Miss T has about a failure to comply with building regulations. This is because the developer used a private firm’s approved inspector. Using an approved inspector means the Council was not responsible for signing the works off and granting approval under building regulations.
- Until May 2022, the Council’s position was it had discharged condition A. It said this to Miss T and to us when responding to our enquiries. Despite saying it discharged condition A, the Council is now confident it has not in fact discharged it. This is because it obtained legal advice. The Council did not take steps to clarify its position about condition A and its ability to take enforcement action until May. Up until this point, it is clear from its enquiry response, it considered it had at least discharged parts 1 and 2 of condition A.
- I consider the Council took too long to legally clarify whether it had discharged condition A in whole, in part, or at all. This is fault. This caused injustice to Miss T as she suffered distress. She has the uncertainty of not knowing whether the current discussions and actions by the freeholder could have been taken much earlier but for the fault.
- The delay in seeking legal clarification about whether all parts of the condition were discharged, and whether it could now enforce it, meant: i) the Council had not fully explored or considered all options available to it before May 2022; ii) there was a lowered expectation by Miss T and other residents of the Council taking any enforcement action at all; iii) the Council failed to take a more assertive stance about non-compliance by the developer until after clarifying its legal position; iv) the Council could have started considering, and threatening, enforcement action much earlier than it did.
- I consider this failure caused Miss T an injustice in the form of distress. This is because: she has uncertainty of not knowing whether the current contact with the freeholder, and the testing it has now arranged, for example, would have been done earlier; there is the lost opportunity and uncertainty of whether the Council could have threatened, or taken, enforcement action earlier had it sought legal clarification sooner; she suffered frustration and stress from the failures which might have been avoided, or at least resolved sooner than they were.
- I found no fault on the complaint about the Council failing to properly consider the amenity impact on the balcony from noise. Miss T referred to BS8233. This is a code of practice which gives guidance and recommendations. It is voluntary and does not impose any legally binding liability. It suggests councils take account of noise for certain types of sites. I am satisfied this is what happened here. For example, I note at the time of the application’s submission, the developer sent an environmental noise report in support. This was considered by the Council at the time it approved the application. Noise levels were, therefore, considered by the Council when it granted consent.
I also note the developer’s acoustic report sent in support of the application to discharge the condition, also set out the predicted sound levels for the external balcony areas for all floors in Miss T’s block. As noted, the Council has yet to discharge this condition.
Complaint b): enforcement
- The Council confirmed it received reports of noise nuisance from the two existing blocks built as well as reports from Miss T.
2021:
- February: The Council wrote to the factory about noise from vehicles, staff, and plant equipment. It referred to a previous investigation and mitigation measures it put in place to reduce noise. It asked whether these measures were still in place. It warned it would monitor the situation over the next three months.
- March: The Council received a noise report from Miss T, sent her log sheets to complete, and advised her to use a Noise App to record noise levels. It told her it could not guarantee the outcome of its investigation because of a complex noise nuisance investigation in 2019. She said she could not sit on her balcony or open her windows because of it. She reported lorries outside with their engines running, as well as the movement of large objects round at night and in the early hours of the morning. It wrote to the factory warning it about her report.
- When she provided recordings, it agreed to visit her. Officers visited the site and discussed silencing measures, and the main issues residents were disturbed by (noise from compressors, lorries waiting, noise from pallets while loading the lorries outside the site). The site was told to remind drivers they should not arrive before their booked slot and should not wait on double yellow lines outside with the engines running. A monitoring visit was done. The Council sent the site photographs of lorries parked outside. The site replied saying engines were not running and lorries were there for less than 20 minutes which is the time allowed to enter the yard. It agreed to put up signs along the road about turning engines off when waiting to enter.
- April: The Council told Miss T it installed noise monitoring equipment in other residents’ properties.
- May: Officers carried out a case review and proposed a joint meeting with representatives of the Housing Association, the developer, and a resident representative.
- June: Miss T chased the Council about progress. The Council replied saying it investigated reports in 2019 and as a result, the compressor units were acoustically screened, and the inside of their casing acoustically treated. Noise monitoring equipment was installed in 2 flats in a nearby block. These found noise disturbance from vehicle movements, the compressor units, and the loading of lorries. As a result, It also told her officers would meet with representatives of the factory, the Housing Association, and the developer because any solution would be costly and complex. It warned the factory was a well-established operation but, officers need to consider the local conditions, circumstances, the financial implications, and whether further mitigation was needed. It invited the Housing Association, developer, and a resident representative to a joint meeting.
- She later reported problems with parked vehicles and idling engines. She agreed to have her details shared with other residents and discuss concerns with them.
- July: She told the Council lorries were still queuing outside with engines idling causing a nuisance from noise and fumes. The Council emailed the factory about its continuing investigation and further complaints. The factory replied saying it had installed a sign on the road for drivers to switch off engines. It asked her for questions for a meeting it would have with a developer and the Housing Association which she provided. Officers took legal advice. The Council chased the Housing Association about the meeting and a meeting was arranged to take place towards the end of the month. It also commissioned an independent acoustic report.
- September: Following a further report from Miss T, the Council told her it had sent the factory an email about lorries and idling engines the week before. It had not received a response so would send a further email. Miss T reported deliveries before 4am and loading taking place. She sent two Noise App readings and a video of a lorry idling for more than 20 minutes. The Housing Association told the Council there was evidence all planning conditions were discharged and building control given before buying from the developer. The Housing Association claimed there were no outstanding issues to address for nuisance.
- October: Miss T complained about the lack of communication and delays of up to two months to respond. The Council says it has evidence of the environmental health team responding to her on at least four occasions, three of which were in September and one in early October. It failed to send evidence of this despite being invited to do so.
- November: The Council updated her saying it was working with the legal team to resolve the problem. It decided to take external specialist legal advice.
- The Council carried out a review more recently of the case which confirmed its position about the business having a strong defence should it take enforcement action against it for statutory nuisance. It argued noise from the factory is not a statutory nuisance under the Environmental Protection Act 1990 because of case law (Coventry v Lawrence (2014) [UKSC13]), under the ‘agent of change’ principle’. This means the onus for mitigating impacts from noise generating activities (the factory) is placed on the new noise sensitive development (the developer of the flats).
- The Council also carried out a review of the case. This found a planning condition has the potential to relate to noise mitigation by the landlord who owns the building in which Miss T lives. It is looking at whether this might be a way it can take enforcement action and is seeking legal advice about it.
- The Council is also considering whether it could act against the landlord under the HHSRS. This would look at sound insulation, for example. Again, the Council is looking at getting legal advice about this course of action.
- The Council accepts resolving these issues will not be a quick process but, recognises this could be a ‘sizeable problem’ which could significantly be impairing the enjoyment of home life for numerous tenants.
Analysis
- In finding fault on this complaint, I took account of the following:
- There was no fault by the Council when it received Miss T’s report in February 2021 and the actions it took the following month. The evidence shows it sent her diary logs to complete, visited the site, and got the factory to put up road signs outside about idling engines. Although it says it carried out monitoring, it provided no evidence of it. In response to my earlier draft decision, the Council took issue with this finding saying it had evidence of monitoring. When invited to do so, it failed to send the evidence.
- It carried out noise monitoring in some residents’ properties which confirmed a noise problem in April. It held a case officer review the following month. It failed to provide evidence of the review or explain the outcome. This is fault.
- There is no evidence to show the Council gave Miss T updates between April and May.
- Nor have I seen evidence of it giving her an update about the meeting held in June.
- While the Council’s investigation continued, there is nothing to show what this involved between July and September. In response to my earlier draft decision, the Council said it explored legal issues, pursued the Housing Association for an update, reviewed the acoustic survey it commissioned, and provided updates to Miss T in September. I have not seen evidence showing this.
- Nor is there evidence of what the investigation involved between September to November.
- I found fault because there are periods when it is unclear what was happening with the investigation. There was also a failure to keep Miss T updated about what it was doing. While the Council argued this was not an entirely accurate conclusion, saying although updates to her were not always regular, it had kept her informed over a 10-week period, it failed to send evidence in support of what it said.
- I consider the fault caused her injustice in the form of distress. She had the frustration and uncertainty about what was happening as well as having to spend time chasing the Council about updates.
Agreed action
- I considered our guidance on remedies.
- The Council agreed to carry out the following action within 4 weeks of the final decision on this complaint, unless otherwise stated:
- Send Miss T a written apology for: its failing to keep her updated; failing to show what was happening during the identified periods; failing to clarify its legal position about the discharge of the condition until May 2022.
- Continue with discussions and negotiations with the freeholder for a further three months about actions it can take which would allow the Council to discharge the condition. In the next three months it will then consider whether it has enough evidence to take enforcement action or discharge the condition. The Council should provide Miss T with regular updates (once every two months) as to how matters are progressing. This decision on what action the Council should take should be made by its Executive Director (Place) and the Assistant Director (Planning).
- Pay £250 to Miss T for the frustration the identified faults caused her.
- Within one month, it agrees to contact all those it identified as a group who are, or have likely to have been, similarly affected as Miss T, and advise them of the issues and actions the Council intends to take. It will invite them to complain to Council if not satisfied.
Final decision
- I found fault on Miss T’s complaint against the Council. The agreed action remedies the injustice this caused.
Investigator's decision on behalf of the Ombudsman