Summary: The Council was not at fault for the way it responded to Miss X’s reports of planning breaches and noise nuisance in her block of flats. It took account of the relevant law and its own procedures. It made a professional judgement the noise did not amount to a statutory nuisance and acted proportionately to resolve the planning breaches.

The complaint

1. Miss X complained the Council failed to act against breaches of planning permission and noise issues in the block of flats where she lives. She says this impacted her mental health and she had to pay unnecessary legal fees to challenge the Council. She wanted the Council to act against the developer and compensate her.

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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 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)
3. 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(1), as amended)

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How I considered this complaint

4. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
5. Miss X and the Council have 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

Planning permission and enforcement

6. Councils should approve planning applications in line with their local development plan, unless material planning considerations suggest otherwise.
7. Material planning considerations may include:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

8. Material planning considerations do not include:

• Views from a property;
• The impact of development on property value; and
• Private rights and interests in land.

9. Councils can take enforcement action if they find a breach of planning rules. However, councils should not take enforcement action just because there has been a breach of planning control.
10. 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.
11. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
12. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework December 2024, paragraph 60).

Statutory Noise Nuisance

13. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’ such as noise from premises or vehicles, equipment or machinery in the street.
14. 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.

15. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
16. 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.
17. The law says that a potential nuisance must be judged on how it affects the average person. Councils cannot take action to stop something which is only a nuisance to the complainant because they have special circumstances, such as a medical condition which makes them unusually sensitive to noise or fumes.
18. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
19. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
20. This process does not involve the council, but it is good practice for councils to tell complainants about their right to take private action.

Background

21. Miss X bought a flat within one of two large blocks of flats several years ago. The purchase included a section of an area previously designated as an outdoor communal area for Miss X to use as private outdoor space. Over the next couple of years, the Council pursued enforcement action against the developer over several potential breaches of its planning permission raised by Miss X. During this time, Miss X erected fencing around her outdoor area.

What happened

Miss X’s planning complaint

22. In early 2024 the Council issued a planning contravention notice (PCN) against the developer to find out whether it had resolved the potential breaches of its planning permission. At the same time, it emailed Miss X and told her it was investigating:
• The incorrect location of a bin store and cycle storage area.
• A breach of a planning condition requiring an area to be used as a car park, that was currently being used for storage.
• Unlawful fencing around Miss X’s outdoor space. The Council said this was not in accordance with the approved plans for the building.
23. A Council note shortly after confirmed the developer had removed the storage section of the car park, but no work had started on the bin and cycle stores. The developer told the Council it could not relocate the bin and cycle storage to the correct location as the correct location was now an allocated resident parking space. It said it needed to explore legal changes to the use of the space before it could proceed.
24. Over the next few months, the Council kept Miss X up to date about the situation, but the legal process over the parking space remained ongoing. Miss X complained to the Council. She said the developer had failed to comply with several planning conditions and the Council had failed to take enforcement action. She said the car park was still being used as storage and the bin and cycle storage were still in the wrong place. She also complained that the Council had failed to take action to clarify the layout of communal areas to confirm her private space and its fencing. At the same time Miss X started legal proceedings against the developer over the sale of the communal space to her.
25. The Council responded to Miss X’s complaint at stage one of its complaint process. It accepted there were breaches of several planning conditions including the location of the bin and cycle store and the layout of communal areas. It said the legal process over the parking space was holding up resolving these issues. It said the developer had restored the car park and agreed in principle to move the bin and cycle store. The Council explained while the developer’s planning permission specified a purpose-built car park, it did not tie the use of the parking spaces to residents so it could not take enforcement action over others using the car park. The Council said it had invited a retrospective planning application to resolve the issues over the communal spaces.
26. The Council remained in dialogue with the developer over the coming months. Miss X asked the Council to escalate her complaint to stage two. In its stage two response the Council reiterated it was addressing the issues as quickly as possible. Miss X remained unhappy and complained to the Ombudsman.
27. The Council recently served a breach of condition notice (BCN) against the developer over the location of the bin and cycle storage. In response to our enquiries the Council confirmed the developer had finished relocating the bin and cycle storage. It noted while the layout was slightly different from the approved plans, it did not consider it expedient to take further action.
28. The Council also noted an element of storage remained in the car park but said this was temporary and did not amount to a material change of use. It said the developer intended to submit an application over the revised communal layout, this would include engaging with the Police’s “Secure by Design” officer to address security of the site which was also a condition of the planning permission. It said Miss X’s fencing remained unlawful.

Miss X’s noise complaint

29. In late 2023 Miss X told the Council she was experiencing excessive noise from her neighbour’s flat, from residents of both blocks of flats using the bin store outside her flat and from builders using the car park outside her flat before 8am and after 6pm. The Council provided Miss X with noise diary sheets which she completed.
30. In December 2023 the Council confirmed the developer had a building control completion certificate for the property. It liaised with Miss X over a potential visit to assess the noise. Miss X said her neighbours were currently away so a visit when they were back would be better.
31. An environmental health officer from the Council visited Miss X’s property in early 2024. Their notes show the visit lasted nearly two hours. They concluded the noise from the neighbours was due to poor sound insulation in the building and that it did not amount to a statutory nuisance. The officer noted they heard no noise from the car park during the visit.
32. Following the visit the Council contacted the developer asking it to minimise noise from residents using the bin store and from the car park. Miss X asked the Council for an update in early February 2024. The Council said it had written to the developers and confirmed it would not be taking enforcement action against Miss X’s neighbours.
33. Miss X continued to chase the Council for an update on her noise complaint. In March 2024 the developer told the Council the car park was only in use between 8am and 6pm and that it had added new designated bins for the second block of flats to the bin store. Miss X disputed the developers email and asked the Council to place time restrictions on residents’ bin use. The Council said it would continue to engage with the developers.
34. Miss X continued to complete noise diary sheets. In April 2024 the Council’s planning team told its environmental health team the developer intended to relocate the bin store. Miss X said the store would only be moved a few metres and the noise would continue.
35. The Council asked Miss X to complete further noise diary sheets. Miss X asked why she had to complete more sheets when she had already done so. The Council explained Miss X had alleged noise from several different sources and it needed information to evidence which source may be creating a noise nuisance so it could act. It confirmed to Miss X she had last reported noise from building works in the basement in December 2023, noise from the car park in March 2024 and noise from the bin store in April 2024. It asked Miss X to complete more diary sheets.
36. Miss X completed more sheets in July 2024. The diary sheets reported noise once a day most days before or around 8am. Miss X asked the Council to install noise monitoring equipment. The Council reviewed the diary sheets and asked Miss X if it could visit her property at 0730 one weekday morning to listen to the noise. Miss X refused. She said it was not convenient and the Council could witness the noise from elsewhere on the property. The Council said it needed to witness the noise from inside Miss X’s flat. Miss X still refused to allow the visit.
37. In October 2024 the Council signposted Miss X to its complaint process and said it would take no further action. Miss X complained to the Council in November 2024. The Council responded in December 2024. It said it had visited Miss X’s property, issued diary sheets and asked to visit again but Miss X had refused. It said there was no evidence of a statutory noise nuisance based on the information it had. Miss X asked to escalate her complaint to stage two. The Council did so and repeated there was no statutory noise nuisance. Miss X remained unhappy and complained to the Ombudsman.

My findings

Miss X’s planning complaint

38. Planning enforcement is discretionary, and councils are entitled to pursue informal as well as formal action to resolve breaches. The Council issued a PCN against the developer. The developer did not resolve the breaches immediately but explained this was due to the lengthy legal process around ownership of the resident parking space.
39. Throughout this time the Council remained in dialogue with the developer and issued a further notice to escalate proceedings. I am satisfied the Council acted proportionately, taking account of all relevant information in deciding what enforcement action to take and when. The Council was not at fault.
40. The Council is now satisfied the developer has relocated the bin and cycle storage, resolved the storage issues and has invited a retrospective planning application to address the issues with communal areas and the property’s “Secure by Design” accreditation. The Council has explained it cannot take any enforcement action against use of the car park by others as this was not a condition of the planning permission.
41. Our role is not to ask whether the Council could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
42. In deciding to take no further action against the developer, and inviting a retrospective application, the Council took account of the relevant guidance, information from Miss X, the developer and its own policies. It followed the appropriate procedures when making its decision and I cannot therefore criticise it. The Council was not at fault.
43. Miss X remains unhappy that the issue around her outdoor space is unresolved. The buying process is a private matter between Miss X and the developer. It is not a matter for the Ombudsman. If Miss X wishes to resolve the issue of her fencing it is open to her to either apply for her own planning permission or remove the fencing.

Miss X’s noise complaint

44. The Council was under a duty to assess Miss X’s reports of noise and make a professional judgement whether it amounted to a statutory noise nuisance.
45. Between November 2023 and September 2024, the Council carried out a lengthy site visit, considered Miss X’s noise diary sheets and engaged with planning officials and the developer to consider the extent and source of the noise. It wrote to the developer and attempted to carry out a further site visit to assess the noise at the times in Miss X’s diary sheets, but Miss X refused. The Council considered a range of information, took informal action and came to the professional view the noise was not a statutory nuisance.
46. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a person disagrees with the decision the organisation made.
47. In making its decision, the Council took account of the relevant guidance, information from Miss X, and its own site visits. The Council followed the appropriate procedures when making this decision and I cannot therefore criticise it. There is no fault in how it took the decision and I therefore cannot question whether that decision was right or wrong.
48. It is open to Miss X to take private action against an alleged nuisance in the magistrates’ court.

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Decision

49. I find no fault.

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Investigator's decision on behalf of the Ombudsman