Durham County Council (20 003 608)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 22 Feb 2021

The Ombudsman's final decision:

Summary: Mrs X complained about the way the Council dealt with a planning application from a nearby business and her associated complaint about noise nuisance. There was no fault in the Council’s actions.

The complaint

  1. Mrs X complains the Council has continuously acted with fault over the last 20 years in relation to several planning approvals for a nearby Business. In particular, she complains the Council:
    • failed to inform her of the applications to enable her to object;
    • has continued to approve the applications without appropriate conditions relating to the increase in operating hours and the impact of noise on her amenity;
    • has failed to consider the impact of the development on the landscape;
    • acted with bias towards the Business and been dismissive of Mrs X’s comments and objections; and
    • has failed to act appropriately in relation to alleged breaches of conditions reported by Mrs X and has given more weight to the Business’s views and comments.
  2. Mrs X also complains that the noise assessments carried out on behalf of the Business, and accepted by the Council, were inadequate.
  3. As a result, Mrs X says she has been affected by noise and other nuisances an increase in heavy goods vehicle (HGV) movements. Mrs X says the subsequent Environmental Services investigation into her noise complaints and the issuing of an abatement notice were flawed.
  4. She says all of these issues have caused her significant distress.
  5. Mrs X would like the Council to accept and apologise for its faults and reconsider a recent approval granted to the company which will result in an increase in size of the Business site.

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What I have investigated

  1. I have investigated the above complaints from August 2019. I explain why I have not investigated events which occurred before then in paragraphs 6 - 9.

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The Ombudsman’s role and powers

  1. 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)
  2. This means we do not normally investigate matters unless they are brought to our attention within 12-months either from when events occurred or from when the complainant could have known about them. We have discretion to go back beyond this limit but would need a good reason to do so.
  3. We should not investigate late complaints or complaints that relate to matters that occurred long ago, unless:
    • we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision; and
    • we are satisfied that the complainant could not reasonably be expected to have complained sooner.
  4. The issues Mrs X complains about go back over 20 years. I can see no good reason why she did not complain to us earlier as she was aware of the issues. In addition, an investigation at this stage would not result in a meaningful outcome. Therefore, I will not exercise my discretion to look at events which occurred more than 12 months before Mrs X came to the Ombudsman.
  5. 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)
  6. 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 spoke to Mrs X and considered her view of her complaint.
  2. I considered the information provided by the Council and available on its website. This included complaints correspondence and copies of emails between the Council and Mrs X and the company.
  3. I spoke to Council officers from Planning and Environmental Services.
  4. I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and Council policy

Planning protection

  1. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • Access to the highway;
    • Protection of ecological and heritage assets; and
    • The impact on neighbouring amenity.
  3. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Environmental protection

  1. Under section 79 of the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate complaints of potential statutory nuisance.
  2. The Act defines a number of matters as being a statutory nuisance including noise, fumes and gases.
  3. If a council identifies there is a statutory nuisance it must serve an abatement notice under s80 of the Act on the person causing the nuisance.
  4. A person served with an abatement notice has the right to appeal to the magistrates’ court within 21 days of receiving the notice. The magistrates court has the power to quash, vary the abatement notice or uphold it. Abatement notices can be appealed on grounds including where the requirements are unreasonable or unnecessary or the business has used ‘best practicable means’ to counteract the nuisance.
  5. Under section 82 of the Environmental Protection Act 1990, a member of the public may bring a claim of statutory nuisance in the magistrates’ courts.

What happened

  1. Mrs X’s property is situated close to a Business which is involved in industrial operations some of which takes place outdoors.
  2. Over time, the Business has grown and is now significantly larger than it was previously.

Planning application to the Council

  1. The Business submitted a planning application which included proposals to extend the site, divert a bridleway and carry out landscaping works.
  2. The Business submitted a number of supporting documents including a noise impact assessment (NIA) from specialist noise consultants. This stated that following consultation with the Council, the report would consider both existing noise from site operations and the impact of future noise from the development proposals.
  3. The NIA concluded that even though the proposed works would not increase the current level of noise, the current level was likely to be causing adverse effect on neighbouring properties, including Mrs X’s. The report suggested measures including barriers, reducing the volume of the reversing alarms on vehicles and insulation to the main work building.
  4. The application was considered under delegated powers by a Council planning officer. The planning officer’s report included information on the relevant national and local policies which stated permission would not be granted for various types of development if they had an adverse effect on neighbouring residents.
  5. The report detailed objections from residents including one relating to current noise and disturbance from the site which the objector considered would increase if the application was approved.
  6. The report included a detailed analysis of the working hours at the site, past and continuing breaches of these hours by the Business and an ongoing enforcement investigation. The planning officer noted it had been important to clarify the legal position of enforcement before determining the application. Therefore, they had carried out investigations and the Business had submitted a signed affidavit which stated the planning conditions restricting working hours attached to a previous planning permission have been continuously breached for over 10 years.
  7. The planning officer noted enforcement was no longer possible because the working hours condition had been breached for over 10 years. In addition, the Business had stated in its application that the proposed works would result in a reduction in working hours and as a consequence would have a positive impact on noise.
  8. The report contained the consultation response from an Environmental Health Services (EHS) officer, Officer 1, which raised no objections subject to the inclusion of planning conditions to restrict hours of work across parts of the site and the submission, agreement and implementation of a noise management plan.
  9. The planning officer’s report considered in depth the issue of landscaping and people’s objections. The report stated the officer had consulted with the Council's Tree Officer and Landscape Architect and they considered the proposals to be satisfactory subject to an appropriate planning condition.
  10. The planning officer recommended approval with conditions which included those recommended by Officer 1, the Tree Officer and the Landscape Architect.
  11. The Council granted planning permission.

Mrs X’s noise nuisance complaint

  1. Just after planning permission was granted, Mrs X contacted Officer 1 about the levels of noise coming from the Business site and the methodology of the NIA. She said the Business had been significantly quieter during the NIA and one of the main pieces of machinery had not been operating. She said she had raised this issue during the planning process.
  2. Officer 1 responded and explained they were satisfied the NIA had been carried out to industry standards. The Officer said that if Mrs X submitted a formal complaint about noise from the site, the Council would then be able to begin an investigation. Officer 1 said such an investigation would be based on a longer period of monitoring and so would be more robust than the monitoring carried out during the NIA. Officers would then judge whether the level of noise “significantly impacted on the use of [Mrs X’s] land”.
  3. Mrs X and Officer 1 communicated again on a number of occasions and Mrs X decided to make a formal noise complaint to the Council. She said Officer 1 was biased in favour of the Business. Once the Council received Mrs X’s formal complaint, it referred the matter to the EHS team and appointed Officer 2, to carry out the investigation. Officer 1 remained involved because of their knowledge of the history and details of the Business.
  4. Officer 2 directed Mrs X to download a noise app on her phone to record instances of nuisance. He also sent her diary sheets. Officer 2 also responded to Mrs X’s query about taking private action against the Business and provided advice.
  5. Mrs X carried out her recordings and sent them to the Council. Officer 2 was unable to carry out a site visit and so Officer 1undertook this and produced a monitoring report. This stated the Officer had witnessed a statutory nuisance.
  6. The following month, there were a number of communications between the Council and the Business about the levels of noise and its mitigation.
  7. The Council served the Business with a noise abatement notice. This gave it 6 months to stop the nuisance and prevent its reoccurrence. Officer 2 also wrote to Mrs X to inform her of this and to tell her its investigation into her noise nuisance complaint was complete.
  8. Mrs X was unhappy the Council had given the Business 6 months to address the requirements of the Notice and complained. Officer 2 said that it had to give the Business a reasonable amount of time to carry the mitigation work out and would not shorten the 6 month period.
  9. Mrs X remained unhappy and complained to the Council.

Mrs X’s complaints to the Council

  1. Mrs X made the following complaints to the Council:
      1. the Council had failed to adequately publicise the planning applications previously made by the Business;
      2. the planning officer involved with the Business’s planning application had taken part in discussions of an ‘informal nature’ with the Business about the purchase of a field. This indicated a relationship had formed between the two parties;
      3. planning officers were biased towards the Business in its approach towards breaches of planning conditions;
      4. there had been an imbalance between the Council’s consideration of job creation it believed would result from the application and the effect of the application on resident's amenity. Mrs X said the application would not lead to any job creation;
      5. it would take up to 15 years for the trees to even partly screen the height of the products stored on site which would affect Mrs X’s and other’s amenity; and
      6. the application permitted an extension to a site which was already generating considerable noise nuisance. Mrs X said the NIA carried out as part of the planning application was flawed because a main piece of machinery was not in operation at the time.
  2. The Council responded. It answered each point in detail. The following briefly summarises these responses:
      1. Mrs X’s complaints about previous planning applications were out of time. Despite this the Council gave a detailed analysis of the publicity for each application previously submitted by the Business. In relation to the recent application, the Council advertised it by means of a site notice, neighbour notification letters and a press notice and it also appeared on the weekly list of planning applications which was published on its website. The Council said it had “exceeded the minimum statutory requirements”;
      2. the planning officer had obtained the information about the purchase of the field from a colleague not the applicant. The Council said in any case “it is wholly unreasonable to suggest that knowledge of a land purchase [indicates] any evidence of any improper relationship between the [Council] (or its officers) and the site operator”;
      3. the Business had submitted a number of applications in the past and only a small percentage had been to regularise development without planning permission. The Council said “a breach of planning control is not in itself illegal and provision exists within planning legislation that allows the submission of a retrospective application in order to regularise a breach of planning control with no provision to impose punitive measures. In most cases the Council will hold in abeyance any formal enforcement action pending consideration of such an application and this is an approach which is based on national guidance… In considering any enforcement action, the decisive issue for the local planning authority should be whether the breach of control would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest. None of these applied in the cases you have highlighted”.
      4. the planning officer’s report gave relevant weight and assessed the relevant material planning considerations including the impact on amenity;
      5. the planning officer had due regard to the landscape and visual impact of the proposed development on the landscape and acknowledged it would take a number of years to become fully established; and
      6. the planning officer’s report demonstrated detailed consideration was given to the issue of noise from the site. Following Mrs X’s comments about the machinery not operating, the planning officer had made further checks with the noise consultants and was satisfied this had been accounted for in the methodology. The Council had subsequently carried out a noise nuisance investigation and issued an abatement notice.
  3. Mrs X remained unhappy and escalated her complaint. The Council again did not uphold any of them and Mrs X complained to the Ombudsman.

Ombudsman investigation

  1. During my investigation, I spoke to Mrs X who provided examples of when she believed the Council had acted with bias towards the Business. These related to pipes emptying from the Business onto her land, the bridleway, the appearance of a crater and the felling of trees by the Business.
  2. I spoke to officers from Environmental Services and Planning. I am satisfied there was no bias in the Council’s approach to the issues Mrs X raised.

My findings

Planning control

  1. Before it made its decision to grant approval, the planning officer considered the application, relevant policies, statutory consultee comments and comments from the public, including concerns about noise. The officer’s report was comprehensive and considered the relevant issues, coming to a conclusion of each of these.
  2. The officer assessed the NIA against the technical advisory note and in their professional judgement decided the NIA was to industry standard and fit for purpose. The officer decided pre-commencement conditions were inappropriate and recommended conditions to address the impact of noise to enable the Council to maintain control of the development. The Council followed the process we expect and so there was no fault in the Council’s actions or way the Council made its planning decision.
  3. Mrs X disagrees with the judgment of the planning officer about the decision the Council made. We are not an appeal body and providing the Council has followed the correct decision-making process, it is free to make any decision it chooses – only applicants have the right of appeal if they disagree with the planning judgments that were made during the process.

Environmental protection control

  1. After the Council’s planning decision was made, Mrs X complained officially to the Council about noise. The Council carried out an investigation. It asked Mrs X to keep diary sheets and told her to record the sounds on a noise app. It also carried out site visit.
  2. The Council decided there was a statutory nuisance and issued the Business with an abatement notice. These were appropriate actions to take. There was no fault in the Council’s actions.
  3. The abatement notice gave the Business 6 months to abate the noise so it was no longer a statutory nuisance. Mrs X is unhappy about the length of time. However, the Council has explained to her why it feels it reasonable to allow this length of time. These reasons relate to the amount of work required by the Business and the Covid19 situation. This is a judgement the Council was entitled to make and there was no fault in the way the Council made its decision.
  4. If Mrs X disagrees with the Council’s judgements, she can take legal action herself. If the developer/landowner causes nuisance to their neighbours, they may be vulnerable to private legal action requiring them to take action to stop it or to pay compensation for protective measures.
  5. Mrs X then complained to the Council. It provided detailed responses to each of the points she raised. Those responses were evidence based and provided clarity to Mrs X on the matters she is unhappy about. There is no doubt she disagrees with the Council’s standpoint but that does not mean it has acted with fault.
  6. Mrs X told me she is particularly unhappy with the Council officers’ attitude towards her and believes they are biased towards the Business. I have examined the emails between the Council and Mrs X and the Council and the Business. I have spoken to officers about the examples Mrs X gave me. There was no bias in the actions of the officers. They acted in line with their duties. There was no fault.

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Final decision

  1. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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