Worthing Borough Council (17 014 269)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 21 Mar 2019

The Ombudsman's final decision:

Summary: Mr X has complained about how the Council dealt with his concerns about a gym in the building where he lives. There is evidence of some fault with how the Council dealt with the planning application for the gym. There is no fault with how it dealt with Mr X’s complaints about excessive noise and breaches of planning control.

The complaint

  1. Mr X has raised concerns about a new gym in the building where he lives. He says the Council failed to tell him about the planning application for the gym and took too long to take enforcement action for breaches of planning control.
  2. Mr X is also unhappy with how the Council dealt with his complaint about excessive noise from the gym.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered all the information from Mr X and the Council, including the information available to the public on the Council’s website.
  2. A copy of this decision was sent in draft to Mr X and the Council. I have considered the comments received in response.

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What happened

  1. In 2017, the Council received a planning application from the owners of a retail unit located on the ground floor of the building where Mr X lives. The application was to change the use of the unit from retail (class use A1) to a wellbeing centre (class use D2). The Council considered the application and granted permission subject to conditions.
  2. In October 2017, Mr X contacted the Council to complain about excessive noise from the new gym. He said he did not know the Council had granted planning permission for the development and complained the noise from the gym was having a significant impact on his home.
  3. A planning enforcement officer from the Council visited the gym to look into Mr X’s concerns. The officer agreed that some of the planning conditions were being breached and, after liaising with the owner of the gym, the Council served a breach of condition notice in March 2018. The Council has now said it is satisfied that the owners of the gym have complied with the notice.
  4. An environmental health officer from the Council also visited to consider if there was a statutory nuisance. The Council monitored the noise levels in the gym and installed noise monitoring equipment in Mr X’s home. However, it said the noise did not amount to a statutory nuisance.
  5. Mr X is unhappy with how the Council has dealt with his complaints. He says the owner of the gym continues to breach the planning conditions. He also argues that the noise from the gym is excessive and believes it is causing a statutory nuisance. Mr X says the Council has taken too long to look into his concerns and failed to take action to properly resolve the issues. He says the matter is having a significant impact on his health and wellbeing.

What I found

Notification of the planning application.

  1. Councils are required to give publicity to planning applications. The publicity required depends on the nature of the development, but in all cases the Council must publish the application on its website. In this case, the Council was required to place a notice at the site and notify the affected neighbours.
  2. The Council says it sent letters to the affected properties in March 2017. At the time, Mr X was living in another flat in the same building and was in the process of purchasing his current home. Mr X says the Council did not send a notification letter to either address and he would not have purchased his current property had he known about the plans to build a gym.
  3. The Council has provided a copy of the notification letter it says it sent to Mr X’s new home, the letter correctly details Mr X’s new address. I cannot know why Mr X did not receive this letter. But, I consider it more likely than not the Council sent it and therefore cannot say there is any fault. However, the Council has accepted that it did not send a notification letter to Mr X’s previous address as it should have. This is fault. Although Mr X may have lost the opportunity to comment on the proposal as a result, I am satisfied the Council did still consider the impact on neighbouring properties before granting planning permission. It has also apologised for its error which is a suitable remedy for the injustice caused.

How the Council dealt with Mr X’s complaints about a possible noise nuisance.

  1. Shortly after the gym opened, Mr X contacted the Council to complain about excessive noise. He said he could hear loud music and the sound of weights dropping on the gym floor from early in the morning. Mr X says these problems are still ongoing. He has given the Council evidence to show the excessive noise levels in his flat, but says it has failed to take any action.
  2. The Environmental Protection Act 1990 says that councils must take reasonable steps to investigate complaints about possible noise nuisance. The council will usually consider the level of noise, when and where it occurs and how long it lasts. A noise will amount to a statutory nuisance if it unreasonably and substantially interferes with the use or enjoyment of a person’s home. If the council decides that a noise is causing, or is likely to cause, a nuisance it must serve an abatement notice. This requires the person responsible to either stop or restrict the noise and if they do not comply they can be prosecuted or fined.
  3. I am satisfied there is no fault with how the Council has dealt with Mr X’s concerns about a possible noise nuisance. It has visited when Mr X has reported noise disturbances and been in correspondence with the owner of the gym and the planning enforcement officers about the issues. It also monitored the noise levels in the gym and installed noise monitoring equipment in Mr X’s flat before deciding it did not have enough evidence to show there was a statutory nuisance. As the Council properly considered Mr X’s concerns, I cannot say there is any fault. I understand Mr X disagrees, and has provided the Council with evidence to show that the noise levels are excessive. He also argues the noise monitoring in August 2018 did not show the full extent of the noise problems from the gym. But, I can see the Council did consider the information Mr X provided and sought legal advice before deciding it could not use this information to take formal action. It explained this to Mr X and instead arranged to again install noise monitoring equipment in his flat so it could consider the matter further.

Mr X’s complaint about breaches of planning control.

  1. Planning authorities can take enforcement action where there has been a breach of planning control. The Town and Country Planning Act defines a breach of planning control and includes circumstances where a planning condition is not complied with. However, it is for the council to decide if a planning condition has been breached and what, if any, enforcement action is necessary. The Ombudsman does not act as an appeal body for enforcement decisions. Instead we consider if there was fault with how the decision was reached. When there is a suspected breach of planning control, we would expect the council to consider the allegations made and carry out a proportionate investigation into the matter.
  2. There is no requirement for councils to take immediate action and government guidance encourages councils to resolve matters without the need for formal enforcement action where possible. Formal enforcement action should only be taken where it is expedient to do so and is often only used as a last resort.
  3. In this case, the Council agreed that some of the planning conditions were being breached and served a breach of condition notice. The notice said:
  • The gym should only be open to the public between 5.30am and 9.30pm during the week, 6am and 5pm on Saturday and between 10am and 5pm on Sundays.
  • No music should be played unless and until a suitable noise limiter is installed and agreed by the Council.
  • The gym should not use the air conditioning unit until full details about the unit are submitted to and approved by the Council.
  • The gym must demonstrate to the Council that it is fully complying with the Noise Impact report approved as part of the planning application.
  1. The Council says the owner of the gym has now complied with the breach of condition notice and therefore it has taken no further action. It also says the planning condition restricting the noise levels has not been breached.
  2. Mr X disagrees. He says the gym continued to breach the planning conditions after the Council served the notice. He says the gym is still being used outside the hours allowed and the owner continued to use free weights without meeting the requirements in the Noise Impact report. Mr X also argues that the noise from the gym consistently exceeds the permitted levels. Mr X has given the Council evidence to show the noise levels in his flat. He has also provided photographs showing free weights being used after the Council served the breach of condition notice.
  3. I am satisfied the Council properly looked into Mr X’s concerns about the breaches of planning control. It visited the site several times and was in regular contact with the gym owner to ensure he complied with the breach of condition notice. It also made unannounced visits to the gym and monitored the noise levels. I understand Mr X says he has provided evidence to show the owner of the gym is breaching the maximum noise limits allowed. But, I am satisfied the Council considered this information before deciding it did not have enough evidence to take formal action. It also explained this to Mr X and offered to carry out monitoring in his home so it could further consider his concerns.
  4. I understand Mr X does not agree. But, the Council was entitled to use its professional judgement to decide if any further enforcement action was necessary and the Ombudsman cannot question this without any evidence to show the decision was flawed.

 

Final decision

  1. There is some fault with how the Council dealt with a planning application for a gym in the building where Mr X lives. There is no fault with how it dealt with Mr X’s complaints about noise and breaches of planning control.

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Investigator's decision on behalf of the Ombudsman

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