Summary: There was no fault by the Council in a complaint about its decision not to take enforcement action against a breach of a noise condition.

The complaint

1. Mr and Mrs X complain about the Council’s handling of planning matters at a neighbouring industrial site. They say:
• The Council failed to properly deal with a planning application for development at the neighbouring industrial site in 2015/16.
• The Council decided in 2019 not to take enforcement action against a breach of a noise condition of the 2016 planning permission.
2. Mr and Mrs X say they left their home because of noise from the site. They put their home on the market in 2019 but were unable to sell it because of the Council’s failings. They say the value of their home was reduced by £85,000. They refer to legal costs of £10,890 and the cost of commissioning a noise report at £1200. They want reimbursement of these costs as well as compensation for the impact on their lives and the time spent in pursuit of these matters.

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What I have investigated

3. I have investigated the complaint that the Council decided not to take enforcement action against breach of a noise condition of the 2016 planning permission. My reason for not investigating the first part of the complaint is set out in the final section of this statement.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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)
7. 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

8. I considered the complaint and background information provided by Mr and Mrs X and the Council. I discussed matters with Mr X by telephone. I sent a draft decision statement to Mr and Mrs X as well as the Council. I revised my draft decision statement in light of the evidence I received from the Council. I considered Mr and Mrs X’s comments on my revised draft decision statement.

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What I found

Planning enforcement law and guidance

9. Local planning authorities have discretion to take enforcement action when they regard it as expedient to do so having regard to the development plan and any other material considerations.
10. In considering any enforcement action, the local planning authority should have regard to the National Planning Policy Framework, in particular paragraph 58.
11. Paragraph 58 of the National Planning Policy Framework says:

“Effective enforcement action is important to maintain 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. They should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where appropriate”.

Background

12. The Council received a planning application in 2015 which proposed demolition of buildings at the industrial site and erection of new buildings. The site is a small industrial factory unit which makes furniture.
13. The applicant made reference to inclusion of an extraction unit as part of the proposal. However, the approved plans on the Council’s website did not include the extraction unit.
14. The planning officer consulted the environmental health team on the application. The environmental health officer expressed concerns about potential noise from the type of machinery to be installed in the new buildings. The officer said the information the applicant had provided related to a fan. So, the officer assumed this would be an extraction fan for the collection of wood waste and the unit would be located externally. The officer said the information did not quantify the potential impact on neighbouring residential properties. The officer recommended inclusion of the following condition:

“prior to the installation of any fixed mechanical plant at the site a detailed acoustic assessment must be supplied to, and approved by the local planning authority. The assessment shall examine noise levels generated by said item(s) of plant, how these would affect nearby residential amenity and specify, if appropriate, noise reduction measures to achieve a predicted level equal to or below the measured background (L90) level at any adjacent dwellings. This acoustic assessment would require to be signed off by the LPA and the findings of such incorporated within the scope of the development as constructed”.

15. In February 2016, the Council granted planning permission with the inclusion of this condition in the decision notice. I refer to this condition from this point as the noise condition.
16. Around September 2016, Mr and Mrs noted construction of a high tower and extraction unit at the industrial site. They complained to the Council because they were unaware the structure had been approved as part of the February 2016 permission.
17. The Council approved a discharge of condition application in October 2016.
18. It responded to the complaint in November 2016. It said planning permission had been granted for the extraction and filtration system on the site in February and several planning conditions had been discharged in the October application.
19. The Council said the external appearance and materials of the equipment were not illustrated on the approved plans as the height, external appearance and materials were not known by the applicant at the time of the application. The Council said the footprint dimensions of the unit were indicated on the block plan but the case officer should have requested further details of its external appearance and height.
20. The Council said it had received and approved an acoustic noise assessment and the extraction unit was to operate within the limits set out in the noise condition. It said it was in discussion with the applicant to ensure noise mitigation measures were put in place.
21. The complaint progressed to the second and final stage of the Council’s complaints process in November 2016. The Council’s position remained the same.
22. In January 2017, solicitors instructed by Mr and Mrs X wrote to the Council. The solicitors provided a report drawn up by counsel which concluded the Council had not granted planning permission for the extraction unit in February 2016 or when it discharged conditions in October 2016. The unit was therefore unlawful. The solicitors asked the Council to start planning enforcement proceedings.
23. The solicitors sent a letter before action to the Council in April 2017. The letter proposed legal proceedings against the Council. The claimants, being Mr and Mrs X, would seek declaratory relief from the High court to the effect the February 2016 planning permission did not grant permission for the extraction plant and the grant of an order compelling the Council to consider enforcement proceedings.
24. In response to the solicitors, the Council accepted the erection of the extraction unit at the front of the site was not authorised by the February 2016 planning permission. But it proposed to ask the applicant to submit a retrospective planning application to cover all unauthorised development that had taken place before considering formal enforcement action.
25. The owner/operator the industrial site did not submit a retrospective planning application. The owner insisted the 2016 planning approval included the extraction unit. The Council sought legal advice and decided the extraction unit was indeed included within the approved application. It says plans submitted by the applicant had not been included in its planning file. The Council wrote to Mr and Mrs X’s solicitors in June 2017 to convey this change in its position.
26. The owner submitted two planning applications towards the end of 2017. One sought to regularise certain unauthorised development at the site. The other sought permission for installation of sound boarding to attenuate noise from operation of the extraction unit. The Council granted planning permission for both applications.
27. From 2018, Mr and Mrs X decided to focus on the noise matter based on advice from their solicitor. They say their solicitor wrote numerous letters regarding the noise and various inadequate measures taken by the applicant. I have not seen those letters but I refer to them here in light of the complaints Mr and Mrs X make about noise.
28. When the Council granted planning permission for the erection of soundproof boarding in 2017, its plans committee asked for a report on the effectiveness of the noise mitigation measures.
29. In April 2018, officers presented a report to the committee. The report advised that the Council would instruct an independent noise consultant to assess noise from the extraction unit.
30. The Council subsequently commissioned two noise assessments. The first concluded the noise level from the extraction unit was 41dB(A). The second assessment was undertaken at night. That stated the noise level from the extraction unit was 42-43 dB(A). These stated noise levels are important because the wording of the noise condition required the noise level to be at a predicted level equal to or below the measured background (LA90) at any adjacent dwellings.
31. Mr and Mrs X say the original noise report commissioned by the applicant in discharge of the noise condition was flawed and did not meet British Standard 4142. They say the Council then avoided taking and sharing noise readings. It arranged noise reports by external consultants which were invalid.
32. Mr and Mrs X say they were forced to commission a noise report by an acoustics consultant to show the true level of noise from operation of the extraction unit. This is not a conclusive summary of all matters Mr and Mrs X were dissatisfied with in terms of the Council’s handling of the matter between 2018 and 2019 but I do not propose to set out all the issues here for the sake of brevity.
33. The evidence I have seen shows the Council’s approach to the matter between 2018 and 2019 involved assessing noise levels at the site and the question of whether noise from the site complied with the noise condition in the 2016 permission. The evidence includes noise readings taken by an environmental health officer. I have seen the two noise reports the Council commissioned.
34. The noise matter concluded in 2019 when the Council received internal legal advice on the noise condition. It therefore decided not to proceed with any enforcement action against the development. I have not seen the legal advice. Mr and Mrs X asked the Council for the advice but were told it could not be disclosed to them because it is privileged.
35. The report for the plans committee provided reasons why the Council decided not to take any further action on the breach of the noise condition. To summarise, the Council said the noise condition does not specifically require the dust extraction plant to be at or below a certain noise level. Rather, it requires that ‘the assessment shall examine noise levels generated by said item(s) of plant, how these would affect nearby residential amenity and specify, if appropriate, noise reduction measures to achieve a predicted level equal to or below the measured background (LA90) level at any adjacent dwellings”.
36. The Council’s view is that if the noise level exceeds the LA90 this would not breach the noise condition as long as all the noise reduction measures have been carried out. Therefore, a breach of the condition can only occur if the findings detailed within the acoustic report have not been fully undertaken.
37. At the time the report was written, the owner of the unit had not installed damping sheets on all sides of the extraction unit. The Council considered this was a breach of planning control. The breach was that the developer had not fully complied with the noise condition.
38. However, the report recommended no further action. The Council noted the damping sheets had been installed in elevations facing residential properties including Mr and Mrs X's home. It reasoned that the uninstalled damping sheets faced the rest of the industrial unit itself as well as the main road. Its view was that it would be unlikely that a change in noise levels would be audible in the patio area or rear garden of Mr and Mrs X’s home if damping sheets were installed in those elevations. It considered it would not be proportionate to take enforcement action against the breach of the noise condition.

Finding

The decision not to take planning enforcement action in 2019

39. The Ombudsman is not an appeal body against planning decisions made by local planning authorities. Our role is to examine the process leading to the decision to see if there was fault in the process. In this case, I do not find fault in the process leading to the Council’s decision.
40. I note Mr and Mrs X’s dissatisfaction with the findings of the consultants the Council commissioned to undertake noise readings. Whether the findings of the noise assessments the Council commissioned were flawed or not, the Council’s decision was not based on the noise assessments but whether the specific requirements of the noise condition were met. Having established there was a breach of the condition, the Council then decided it was not expedient to take further enforcement action. I am satisfied it properly applied government guidance on planning enforcement when the matter was taken to its plans committee for a decision.

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Final Decision

41. I closed this complaint because I did not find fault by the Council.

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Parts of the complaint that I did not investigate

42. Complaints must be made to the Ombudsman within 12 months of a complainant’s awareness of the subject matter. I did not investigate Mr and Mrs X’s complaint that the Council failed to properly deal with the 2015/16 planning application. This is because the complaint is caught by the time restriction on the Ombudsman’s power to investigate complaints.
43. I have considered whether there are reasons to accept this complaint out of time as an exception. I do not find there are good reasons.
44. Mr and Mrs X say this is a complex, longstanding complaint with many elements which rolled on and continued well into 2019 and beyond until the sale of their property in November 2020. They say action was still being taken by the Council with unreasonably long breaks in their actions. They say it is not possible or reasonable to expect someone to be aware and to know that it is necessary to identify all the different constituent legal parts of a planning application or complaint and then to generate multiple Ombudsman complaints under different timelines on different topics.
45. I do not find the matter ‘continued’ or rolled on until November 2019 when Mr and Mrs X complained. Mr and Mrs X were aware of the planning application in 2015/16 and the construction of the extraction unit in September 2016. They complained to the Council in October 2016 and received its response in November 2016. I find matters had crystallised by April 2017 when they received the Council’s response to the letter before action sent by their solicitors. At that stage, it would have been clear to Mr and Mrs X that they could complain to the Ombudsman about the Council’s actions. They had already received the Council’s final complaint response which pointed out they could complain to the Ombudsman as the next step if they remained aggrieved. They could have waited until there was clarity on the site owner’s submission of a retrospective planning application. But even if I allow a year as a reasonable period for them to have waited, the complaint should have made to the Ombudsman by April 2018.

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Investigator's decision on behalf of the Ombudsman