Summary: Mrs X says the Council failed to properly consider a planning application for refurbishment and changes to a premises, and it did not take enforcement action when she reported breaches to a section 106 agreement. She says the Council is now failing to act regarding noise and light pollution. We did not find evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council did not properly consider a planning application to refurbish and make changes to a business premises. She says the Council was aware the plan would have a negative impact on her home, but did not take this into account. Mrs X immediately reported breaches to a section 106 planning agreement to the Council, but she says the Council failed to take enforcement action. As a result of the Council’s failings, Mrs X says that noise and light pollution from the development is affecting her home and wellbeing.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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)

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How I considered this complaint

4. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law and guidance

Planning permission

5. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
6. Planning considerations include things like:
• overlooking and loss of privacy;
• noise;
• traffic; and
• the impact on neighbouring amenity.
7. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
8. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Section 106 agreements

9. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.
10. A party to section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force.
11. If an applicant disagrees with the Council’s decision regarding an application to modify or discharge a section 106 agreement they may appeal to the Planning Inspectorate.

Enforcement

12. 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.
13. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

What happened

14. The owner of the light industrial building, (“the premises”) made a planning application to the Council to refurbish it and add a mezzanine floor with a new window along the side of one elevation. The new floor was intended for office use.
15. Mrs X’s home is within a large housing development which was built after the premises. When the housing developer applied for planning approval for the housing development, it signed section 106 agreement with the Council and the premises owner.
16. The section 106 agreement set out certain conditions for the owner of the premises, particularly with regard to Area Z, an area of hardstanding to the side of the premises. The conditions for the premises owner included:
• It “shall not make any alterations to the external appearance of the elevation of [the premises] that faces on to the Land without the prior written consent of the Council”;
• It “shall not use [the premises] other than for uses falling within Class B1 of the Town and Country Planning Use Classes Order 1987 which do not generate any more noise, vibration, smell, fumes, smoke, soot, ash, dust or grit than are produced by the use carried on at the date of this Agreement as evidenced by the [noise report]”.
• It “shall not use Area Z other than for the purpose of providing pedestrian and vehicular access associated with the Owner's business on the Retained Land”
• It “shall not store any goods, materials, equipment, skips, refuse or any other items within Area Z”.
• “all vehicles using Area Z to load or unload any goods, equipment, materials or any other items shall be backed up to the loading doors marked ["X"] on the Obligation Plan before any loading or unloading commences”.
17. Mrs X reported concerns to the Council that the owner had started work on the premises before the planning application was approved. She said the owner was using Area Z for parking, skips and storing materials for the works. But according to the section 106 agreement, Area Z should not be used for skips or storage.
18. The Council’s planning enforcement team investigated the reports and visited the site. The Council initially considered there was a planning breach because the restricted Area Z should not be used for storage as set out in the section 106 agreement. The Council’s officer emailed the premises owner and said “this infringement of the legal agreement is a serious matter and I suggest you regularise this infringement as a matter of urgency”. The Council suggested items could be relocated elsewhere and said that it could take enforcement action.
19. The Council’s planning enforcement notes show that the Area Z was cleared. However, a generator was later installed, and further items stored and parking within Area Z. The Council’s officer advised the owner to cease the use of Area Z. The owner agreed to move items within the premises. The Council visited and confirmed that Area Z was cleared.
20. The Council sent consultation letters regarding the planning application to adjacent residents. Along with several other residents Mrs X objected to the plan. She said amongst other things that:
• she would be affected by noise from the premises air conditioning units. She said this should be assessed.
• her outlook was affected as she would see the new windows and doors from her home,
• there would be overlooking from the new windows and from the existing raised car park.
21. The owner of the premises revised the plans and agreed to include obscure glazing to the new first floor windows. The Council advised the residents who had requested to speak at the committee meeting of the revised plans, giving 14 days for comments. Mrs X commented on the revised plan.

The Council’s consideration of the planning application

22. The Council’s planning officer recommended in his report to the planning committee that it should approve the plan. He referred to the section 106 agreement and the restrictions it covered. He noted that planning permission was not required for the internal works but was required of the changes to external appearance. The proposed office use would fall within existing authorised planning use of the building. He said that the applicant responded to overlooking concerns by including revised plans with obscure glazing.
23. The planning officer’s report summarised the key issues raised by residents, and other consultees. The Council’s environmental health officer did not consider the proposed office use would create additional noise, vibration, smell, fumes, or smoke, than was currently produced. It also noted that air conditioning units were proposed in a part of the building furthest from the residential estate, and so would be unlikely to cause noise impacting the residential amenity. If this was incorrect, any noise complaints could be investigated under the environmental Protection Act 1990.
24. The report referred to the planning officer’s assessment of privacy issues. He considered that the obscure glazing addressed the concerns regarding loss of privacy, but that a condition should be added to the approval that it should be installed to a sufficient level and it should be retained.
25. The officer’s report referred specifically to the potential impact on Mrs X’s home and amenity. It noted a bund which screened most of the houses from the premises, did not screen Mrs X’s home. However, in view of the distance and oblique angle of Mrs X’s home to the proposed windows it did not consider there would be significant overlooking or loss of privacy. The new development would be visible, but loss of view was not a material planning consideration. The report also stated that with regard to Mrs X’s concerns regarding loss of privacy from the raised car park, this was existing, and no changes were proposed to this area.
26. The report referred to potential noise and light pollution. It noted the section 106 agreement and the independent noise assessment that had previously been carried out. At that time the light industrial use of the premises included HGVs forklift trucks and existing bay doors opening and closing. The Council therefore considered office space use would likely reduce the noise levels. The removal of a bay door would also reduce noise levels. The officer considered the noise from air conditioning units would not be unacceptable due to their position. The officer considered that the scale of the proposed lighting plan would not negatively impact the amenity of residents. The Council proposed a condition to restrict the working hours during construction to preserve residential amenity. The Council did not consider that there were sufficient concerns regarding car parking spaces, as it did not consider there was sufficient evidence of vehicles speeding on the adjacent roads, or impacts on highway safety.
27. The report referred to the section 106 agreement and its restriction regarding changes to the external appearance to the premises. The Council said that if the committee approved the plan, it would issue its written consent for the external works as required by the agreement.
28. Mrs X commented on the Council’s planning officer’s report to the planning committee. As she was unable to attend the meeting due to the Covid pandemic restrictions, she sent a speaking statement to the Council. She said amongst other things that:
• Her home and amenity should be protected as set put in the s106 agreement, regardless of the distance or angle in relation to the premises. Her home would be overlooked.
• The raised car park in the plan was not screened and would breach the section 106. She would be overlooked by users of the car park.
• An increase in working hours would cause disturbance to residents.
• The addition of a canteen, kitchen and showers was a change of use of the building and noise from it would be increased.
29. The Council considered the planning officer’s report. The minutes of the planning meeting show that Mrs X’s speaking statement was read out. The Council approved the plan with conditions which included that the glazing to the new windows must be obscure to a certain height and must be retained. It also attached a condition regarding working hours during the refurbishment.
30. Mrs X complained to the Council through its complaint procedure that it had not properly considered the planning application. Her complaint included that:
• The Council had not considered all the points she raised in her objections and in her speaking statement which she said was not read out in full. Her photos and diagrams were not shown to the members.
• The Council did not consider the section 106 agreement and members were not aware of it.
• The change of use of the building was not properly considered, as it had a commercial kitchen installed. This was likely to cause noise which would impact on her amenity.
• The owner had breached the section 106 agreement regularly when carrying out the refurbishment works by storing items, and parking in Area Z, and had caused noise and vibration which affected their amenity. But the Council had taken no action regarding this.
• Her home was visible from the raised car park, and this breached the section 106 agreement.
31. The Council responded to Mrs X’s complaints. It stated there was no requirement for every objection to be listed within a report to committee. The planning officer summarises the objections. The Council said Mrs X’s speaking statement was read out at the meeting. Her photos and diagrams were held on the Council’s planning file. There was no requirement to share these. The Council considered that Mrs X’s statement and objections were appropriately shared.
32. The Council said its report had referred to the section 106 agreement and had members had access to it and were aware of it.
33. The Council considered there was no change of use to the building. The kitchen was ancillary to the main use of the building, which remained light industrial. The Council had investigated reports of a vent which Mrs X complained had not been shown on the plans. It had not witnessed noise and did not consider it was wrong in its decision regarding noise impacts.
34. The Council replied regarding Mrs X’s complaint about breaches to the section 106 agreement. The Council noted storage of materials had occurred in the Area Z during refurbishment. But it considered reasonable temporary use of Area Z in connection with the works was permitted. This was a technical breach in its view, and this use had stopped now the refurbishment was completed.
35. The Council replied about the impact of the raised car park. It said this car park was already in situ and had not been affected by the latest application.

Analysis

36. Based on the information I have seen, I do not consider there is fault by the Council in its consideration and its decision making.

Planning application consideration

37. Mrs X complains the Council did not properly consider her objections and the Council failed to protect their amenity. In her view the Council should have taken account of the section 106 agreement.
38. I can see the Council referred to Mrs X’s objections in its planning report. The Council addressed the concerns specifically with regard to the impact on Mrs X’s home. It did not consider the potential harm to her amenity was such that it should refuse permission. The Council summarised the main concerns and considered them. The Council referred specifically to the section 106 agreement. I have not seen evidence of fault in its decision making.
39. The Council’s minutes of the meeting show that Mrs X’s speaking statement was read out. It appears members were made aware of the concerns she wished to raise. I have not found fault here.
40. Mrs X says the Council failed to take account of overlooking from a raised car park. Mrs X says the Council knew about the impact on her amenity because of an email discussion between the owner’s agent and the Council. The agent had said the impact on residents of the raised car park was far greater than an alternative proposal to use of Area Z as a car park. However, the Council states that the use of this car park had already been approved in the original planning application for the housing estate. The Council considered there were no changes to the car park. It considered there were no concerns regarding parking capacity on the site. I have not seen evidence of fault here.
41. Mrs X said a planning enforcement officer told the owner’s agent that the use of Area Z as a storage area to carry out works was a planning breach and he had asked for this to stop, referring to enforcement action. In her view the Council then disregarded this and approved the planning application despite the identified planning breach. I have considered this and it is apparent the Council initially considered there was a breach of the section 106 agreement. The owner removed items from the area as a result of this. However, the Council then considered the planning application and recommended approval. It explained that it was entitled to have regard to the planning application and it considered that temporary use was permitted while the refurbishment works were carried out. I do not consider there is fault here.

Section 106 breaches

42. Mrs X complains the Council should have taken enforcement action when it identified the breach to the section 106 when items were stored in Area Z.
43. Based on the information I have seen the Council responded regarding storage of items, as the officer contacted the owner’s agent and this resulted in items being removed or relocated. The Council then considered that in view of the planning application which it had approved, it should allow temporary use. It sought its own legal advice about this and explained that a Local Planning Authority has discretion regarding enforcement action. In my view the Council took account of relevant factors when considering its I do not consider there is fault here.

Environmental health

44. Mrs X complains the Council failed to take appropriate action regarding noise from the refurbishment works, emissions and light pollution. She sent the Council video recordings and photos.
45. I have seen evidence the Council’s environmental health officer (EHO) responded to Mrs X’s reports regarding noise. During the refurbishment works the EHO visited several times but did not witness unacceptable noise from the works. The EHO advised the owner that it must take measures to keep noise to a minimum. He advised the owner to work within reasonable hours and to keep doors closed to contain noise. The owner agreed to provide noise and dust monitoring information.
46. The EHO investigated and visited the site several times in response to Mrs X’s complaint about noise from a louvered vent and a boiler flue. However, he did not witness unacceptable noise from these. He liaised with the owner and this led to improvements. The officer also attempted to visit Mrs X’s home, but was unable to do so during the Covid pandemic.
47. The Council responded regarding reports of light pollution. Lights were left on at night and movement sensor lights were allowed to stay on for too long. The EHO contacted the owner and it made adjustments. Mrs X reported further light pollution. The EHO sent diary sheets to Mrs X for her to complete regarding the timing of the light pollution. Mrs X does not appear to have returned these. I have not found fault by the Council here, as it has taken steps to address the issues Mrs X raised.

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Final decision

48. I have not found fault by the Council. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman