Summary: Mrs B complained that the Council had not dealt with planning enforcement and noise issues properly when a nearby business increased its use of land near her home for storage and deliveries. There was no fault by the Council. It investigated the concerns raised properly and considered the evidence before deciding it could not take enforcement action.

The complaint

1. Mrs B complains about how the Council has handled planning and environmental protection issues on land close to her home which was being used as an extension to an industrial site. In particular she says the Council:
• Has treated an access alley serving her home and to others properties as part of the land with industrial use;
• Has failed to take enforcement action against the business;
• Gave her incorrect advice about the different land uses and the requirements for planning permissions for structures on the land.
2. Mrs B says this has interfered with her use and enjoyment of her home and has caused her distress and frustration.

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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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How I considered this complaint

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

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What I found

The law and guidance

7. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Planning permission is usually needed to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.
8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. For the issue to count as a statutory nuisance, it 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.

9. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.

What happened

10. Mrs B lives in a largely residential area. However, there are some shops and business units, and an industrial site close to her home. The houses are separated from the industrial site by a side and rear access track that leads to garages at the back of the houses and to the rear of the shops and business units. Some years ago the residents and the Council jointly funded gates to the access track. The industrial business started to use land adjacent to the houses, on the other side of the access track as a storage and manufacturing area. The business owns the land.
11. Mrs B’s councillor raised the matter on her behalf. They said the industrial use of the land was noisy and also dangerous, with deliveries of materials, and forklift trucks accessing the storage area. Mrs B also complained that the company had sited a shipping container with an electricity supply, wood cladding and windows and doors in the storage area; and that it had sited a 15-foot metal stand to hold materials.
12. The Council has explained to Mrs B that her concerns about her right to use the access track are a private matter and outside of planning control. Mrs B’s councillor also raised that the operator had erected another set of gates on the access track. The Council said these are not subject to planning control.
13. The Council visited the site and talked to those using it. It had to decide the planning status of the land and whether the storage area was part of the industrial site (albeit separated by the access track). The Council has confirmed that there is no planning permission directly related to the land that could establish its planning use.
14. The Council consulted aerial views of the site going back to 2003 that showed the land had been used to openly store building materials and industrial items for a long time, and so the Council considered the site has established lawful planning use as storage and distribution. This means using the land for industrial storage would not need planning permission.
15. Mrs B’s councillor raised that although the land may have been used for storage, the alley way itself should not be used for storage and there is no planning permission for this. The Council has explained that when looking at whether a planning use had been lawfully established by the use over time, it considered the planning unit as a whole. The planning unit includes the use of the site as well as the physical structures, access, demarcations on the ground and land ownership. In this case, it considered the access way to be part of the planning unit because the operator has to use this to use the land: it cannot be separate or in a different use class.
16. The Council also considered whether the business needed planning permission for the shipping container and the stand. It has explained that case law has established that shipping containers are not usually permanent buildings. The Council has to decide whether these amount to development and whether that development is a change of use.
17. The Council decided that the shipping container is not a permanent structure, is not development, and does not need planning permission. In making this decision, it took into account that the business had placed the shipping container on an existing hard surface without the need for preparing the site. The land is associated with moving heavy goods, and so it is more likely to be moved and not permanent.
18. The Council took into account that the container has an electricity supply. It has explained that this does not make a structure permanent, and in any case, this electricity supply is an extension cable rather than permanently wired.
19. Mrs B also complained that the site was noisy because the business would deliver materials and move these with a forklift truck, and also use an electric saw. The Council considered the complaint and Mrs B’s diary of the noise she was suffering. However, it explained to Mrs B that it is unlikely that a forklift truck would be a statutory noise nuisance because it must have its engine running to work and its alarms are necessary for health and safety purposes.
20. The Council added that as Mrs B lives in a mixed residential and commercial area, the noises she had reported are associated with the area and their frequency and duration were unlikely to be a statutory nuisance. It told Mrs B that it could not take any action to stop or control the use of the site. Without planning permission there would also be no strict restrictions on the hours the business could operate on the site.

Analysis

21. There is no fault in how the Council has dealt with the use of the site. It was for the Council to decide whether the business needed planning permission to use the storage area and to place a shipping container on it. The Council has explained how it considered the historic use of the site, the planning history, how the land was being used, and the siting and set up of the shipping container. It has properly investigated the issues and taken all the relevant factors into consideration.
22. Similarly, the Council has considered whether it is likely that the use would be a statutory noise nuisance. It has explained its reasons for not investigating this further.
23. As the Council has considered all the relevant factors, there is no basis for me to criticise its conclusions or its decision that it cannot take enforcement action.
24. Mrs B says that she was initially told that the business would need planning permission for the shipping container, and that there were no details of who owned the storage area. Mrs B later searched the Land Registry and established more details about the ownership of the main site and the storage area. The Council later told her the owner did not need planning permission for the shipping container. I have read the Council’s correspondence with Mrs B and I have reviewed its case notes.
25. The Council needed to collate information and consider this to answer Mrs B’s concerns. I can see that this sometimes meant that its approach changed as new information came to light. But this is expected in a planning or noise investigation and I have not found that the Council gave Mrs B significantly conflicting information.

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Decision

I find no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman