Summary: Mr B complained about the actions of the Council in dealing with complaints about listed building consent and environmental concerns arising from work carried out by his neighbour. We can find no fault with the Council’s actions.

The complaint

1. Mr B complains that Cornwall Council (the Council), in respect of the boiler and flue serving the adjacent property (house C):
• has taken insufficient action to resolve the nuisance caused by noise and fumes from the boiler particularly at night; and
• in granting listed building consent has failed to take into account the significant visual impact on Mr B’s house which is also a listed building.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. I have written to Mr B and the Council with my draft decision and considered their comments.

What I found

Enforcement

6. 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. 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 July 2018, paragraph 58)

Planning process

7. Councils delegate most planning decisions to their officers. Cornwall Council delegates all planning decisions to officers except for major applications of more than 200 dwellings, where a councillor requests an application should be considered by Committee, for applications submitted by councillors or senior officers or for Council-owned land or where the recommendation represents a significant departure from policy.
8. Most planning applications should be determined within eight weeks, although the time limit is 13 weeks for major applications. If the planning application has not been determined by the end of this period, and an extension has not been agreed in writing, the applicant can appeal to the Planning Inspectorate.

Permitted development

9. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, councils have no control over these matters.

Listed Building consent

10. Local Authorities hold lists of buildings considered by English Heritage to have some special architectural or historic value. Before carrying out any work on a listed building, it is necessary to apply for Listed Building Consent. Consent is required for all works of demolition, alteration or extension to a listed building that affect its character. Consent is still necessary even if the work would be permitted development if carried out on a non-listed building.
11. Listed Building Consent does not require a Council to consider the impact on a neighbour’s amenity.

Statutory nuisances

12. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include noise or smoke from premises
13. 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 premises; and/ or injure health or be likely to injure health.

What happened

14. Mr B lives in grade 2 listed building. The neighbouring property (house C) is also grade 2 listed. In 2017 the Council carried out an enforcement investigation into alleged unauthorised alterations to a listed building. The owners had moved and replaced a boiler from inside the property to an outbuilding adjacent to Mr B’s property. The Council concluded the work had taken place without listed building consent and requested a retrospective application. The Council concluded that the work did not require planning permission as it was ‘permitted development’.

First listed building consent application

15. An application was received at the end of 2017 and registered in 2018.
16. The Council consulted its historic environment officer who initially commented in February 2018, saying that the boiler work did not affect the significance of the listed building. The planning officer then discovered other work had taken place as part of the boiler replacement which also required listed building consent. The Council renamed the application to include the other internal alterations and re-consulted the historic environment officer. They maintained their view that the boiler re-siting did not affect the significance of the building but made some recommendations in terms of the other internal work.
17. Mr B objected to the application including the following grounds:
• The work had been done without listed building consent.
• The dates and details of the work were inaccurate.
• The impact on the historical integrity of the dwelling due to the removal of historic fabric.
• The appearance of, and materials used for, the boiler pipes and flue;
• Noise and pollution from the boiler; and
• Potential problems from pipe leakage and future highways works.
18. The Parish Council said it supported the application as long as the noise and pollution issues from the boiler were addressed.
19. The planning officer compiled a delegated report recommending approval. This document detailed the consultation responses and Mr B’s objections. It concluded that while the work done had caused harm to the historic fabric of the building, the harm was less than substantial in terms of the overall aesthetic and architectural impact of the building. It also considered the work would help preserve the building in the future. It noted that the historic environment officer had not recommended reversal of the work and it made the recommendations a condition of the consent.
20. The report acknowledged that it was regrettable that work had to be considered retrospectively, but it still had to consider the application as presented. The applicant had submitted a revised historical impact assessment which addressed some of the issues. It explained that the noise/pollution impacts were not material issues for listed building consent but could be considered by other Council departments
21. The report explained that the sole consideration was the preservation of the fabric, setting, character and appearance of the Grade II listed building. It said government guidance placed significant weight on the preservation of listed buildings and the work done would enhance this aspect of the property. Balancing the benefits of the work against the less than substantial harm and taking into account all the objections raised, it concluded that consent should be granted.
22. Mr B wrote to the Council in January 2019 explaining his objections to the application and dissatisfaction with the process. He wanted the matter dealt with holistically and the Council to address the noise/fumes from the boiler as part of the listed building consent. He was unhappy with the failure of the applicants to get consent before the work started, pointing out it was a criminal offence and that the description of the work initially had been misleading. He felt the boiler should be moved from its current location.
23. The Council replied on 4 February 2019. It said it had forwarded Mr B’s comments to the planning officer and a decision would be made shortly. It said the planning officer had liaised closely with the public health and protection team as well as the historic environment and building control teams and these teams had different legislation to work with to deal with the issues Mr B had raised. The noise and pollution issues were not relevant planning considerations and would continue to be considered by the public health and protection team.
24. The Council approved the application on 6 February 2019.

Noise and fumes

25. Mr B complained to the Council in March 2018 about noise and disturbance, particularly at night, from the operation of the boiler. An environmental health officer (EHO) contacted him in April 2018 to discuss the situation. They advised that it was likely the Council would consider the fumes to be unreasonable unless a specific impact could be evidenced. It wrote to the applicant and Mr B in respect of the noise and asked Mr B to return diary sheets noting the frequency and degree of the noise disturbance.
26. Mr B returned the diary sheets at the end of June 2018. The EHO considered the noise may amount to a statutory nuisance at night-time. They wrote to the neighbour and Mr B suggesting visits rather than monitoring equipment given the infrequent use of the boiler during the summer. The EHO visited in August but did not witness the boiler in operation. They had discussions with the applicant over the boiler operation.
27. Mr B submitted more diary sheets and the Council installed noise-monitoring equipment in September 2018. After analysing the recordings, the Council considered the noise was having an adverse impact on Mr B during the night.
28. The neighbour said they were carrying out mitigation work: fitting a vertical exhaust flue and they informally agreed not to operate the boiler during the night. The EHO visited house C and Mr B at the end of September 2018. The officer witnessed the operation of the boiler and Mr B confirmed it had not been operating at night. The EHO confirmed at present the noise did not amount to a statutory nuisance and that measurement of the emissions showed they were within the acceptable limits for a domestic boiler. In October 2018 the EHO secured further agreement with the neighbour over timer controls on the boiler and acceptable hours of operation.
29. In December 2018 the neighbour installed the extended vertical flue. The EHO visited House C again to view the operation of the boiler with the new flue. The EHO confirmed to the neighbour that they considered the noise could still be intrusive particularly at night. The neighbour agreed to restrict the boiler operation to between 09:30 and 21:30.
30. In January 2019 Mr B complained that the boiler was being used overnight, possibly due to the low temperatures activating the frost setting on the boiler. The EHO installed monitoring equipment again and contacted the neighbour.
31. The neighbour advised they were employing an acoustic technician to consider further mitigation measures and had taken steps to stop the boiler coming on at night. The recordings confirmed that the boiler had not been used at night.
32. In February 2019 the neighbour provided the EHO with the acoustic report, recommending fitting custom exhaust attenuators. The EHO discussed technical issues with the report’s author and noted they were discussing the impact on the listed building with the planning team. The EHO then updated Mr B, who confirmed there had been no night-time boiler operation.
33. The Council wrote to Mr B in March 2019 confirming the conclusions it had reached and the action taken to address the noise at night.
34. In April 2019 Mr B confirmed to the EHO there had been no night-time disturbance but considered that the boiler operating at any time was a nuisance. The EHO explained that the Council could only take action where a statutory nuisance was occurring and they did not consider it was, for day-time use of the boiler.

Second listed building consent application

35. The neighbour submitted an application for listed building consent for the proposed attenuators in April 2019. The Council advised Mr B that the proposals may reduce the noise from the boiler, but would not affect the emissions although these were not considered to cause a nuisance. The Council again explained that noise and pollution could not be considered as part of the listed building consent process, as this only related to the impact on the character and appearance of the listed building and its setting. Mr B objected to the application.
36. The application was approved on 4 December 2019.

Analysis

37. The Council has explained on several occasions that the allegations of noise and pollution from the operation of the boiler could not be considered as part of the listed building consent application. This process is limited to considering the impact of the proposed works on the character and setting of the listed building. As the work did not require planning permission the impact on Mr B’s amenity could not be considered.
38. I cannot find fault with the way the Council considered the first listed building application. It acknowledged that the application should have been made before the works were carried out but could only seek to regularise the situation retrospectively, which was proportionate in the circumstances (given the harm caused was considered less than substantial). It notified Mr B, consulted with the historic environment service, requested amendments to the application when further work became apparent and made a balanced judgement taking into account all the information provided. Mr B may disagree with the decision but that does not mean it was wrongly made.
39. The Council took a long time to decide the application, but I do not consider this caused Mr B an injustice: it allowed him more time to submit his comments. In these circumstances I do not consider the Council made a rushed decision or denied Mr B the opportunity of participating in the process. It properly decided the application under its delegated powers: there were no grounds for it to go to the planning committee.
40. I understand why Mr B wants the issues dealt with holistically, but the current legislation does not provide for that option. The Council’s planning service considered the listed building consent and the public health and protection team considered the complaints about noise and fumes. That was the correct approach for the Council to take.
41. I cannot find fault with the way the Council considered the noise and fumes. It contacted Mr B to fully understand the problem and sought evidence in the form of diary sheets, noise monitoring and visits. It has contacted the neighbour over this period and secured mitigation measures to reduce the impact on Mr B. It has also followed up subsequent complaints of noise from Mr B and contacted the neighbour to secure improvements. As listed building consent has been given for the attenuators; these may further improve the noise situation.

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Final decision

42. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr B.

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Investigator's decision on behalf of the Ombudsman