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South Gloucestershire Council (20 003 609)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 06 Apr 2021

The Ombudsman's final decision:

Summary: Miss C complains the Council failed to properly consider a planning application for a gym directly below her property. Miss C says she suffers from unacceptable levels of noise and vibration from music, shouting, dropping weights and other noises which is harming her mental health. We have found fault by the Council but consider the agreed actions of an apology and appropriate investigations and works as necessary to mitigate noise and vibration are enough to provide a suitable remedy.

The complaint

  1. The complainant, whom I shall refer to as Miss C, complains the Council failed to properly consider a planning application for a gym directly below her property. In particular, Miss C says the Council wrongly failed to consult Environmental Health or properly consider the potential of the gym to cause noise nuisance to residents.
  2. Miss C says she suffers from unacceptable levels of noise and vibration from music, shouting, dropping weights and other noises which is harming her mental health.

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The Ombudsman’s role and powers

  1. 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)
  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 read the papers provided by Miss C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Miss C. I have explained my draft decision to Miss C and the Council and considered the comments received before making my final decision.

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What I found

Background

  1. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
  2. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
  3. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
  4. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
  5. Councils have a statutory duty to publicise applications and to consider representations (either for or against the application) which people make. But that is not the same as consulting with the public.
  6. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include noise from premises.
  7. 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.
  1. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
  2. If a council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
  3. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
  4. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
  5. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82 of the Environmental Protection Act 1990.

Key events

  1. The Council received a planning application for a change of use from a retail unit to a gym within what is described as a local neighbourhood centre. Ms C’s property is one of several residential properties above the commercial units.
  2. The case officer’s delegated report for the application explains the original application for the local neighbourhood centre in 2012 included a 363 square metre gymnasium and so the proposal was acceptable in principle. The new application was in a different unit and increased the size of the gym to a 581 square metre gym including a new mezzanine floor.
  3. Under the heading ‘Residential Amenity’ the case officer’s report says:

“The upper floors of [the neighbourhood centre] are occupied by residential uses. Development should not be permitted that has a prejudicial impact on the residential amenities of nearby occupiers.

In terms of amenity, the most significant impact is likely to result from the comings and goings of the gym users. While recognising the location as a local centre, it does not follow that unfettered main town centre uses would be appropriate. The opening times of the gym unit were restricted in the initial permission to 0600 to 2300 daily. These times appear reasonable and given the residential context of the site it is still in the public interest that opening times are restricted.

A condition restricting opening to these hours should be included within any recommendation for approval.”

  1. The Council’s Statement of Community Involvement (SCI) 2015 says at section 4.4 on page 18 that:

“professional advice may also be sought from teams and departments within the council who have expertise in landscape design, ecology, trees (arboriculture), environmental protection (noise, pollution, drainage, licensing), transport, urban design, planning policy and legal matters.”

  1. The Council has confirmed it uses a checklist at an early stage of the application process to identify potential consultees. This may be supplemented by the case officer during the course of the application as necessary. The checklist is titled ‘Standard Consultations’ and sets out that the trigger for consulting with the Council’s own Environmental Protection team includes applications “where noise, dust, odour or fumes from the development will adversely affect the existing area ie Plant, food premises, extraction systems…”
  2. The Council did not consult with its Environmental Protection team for this application.
  3. The Council granted planning permission subject to two conditions. The first was the development must start within three years of the permission and the second restricted the customer opening hours to between 6am and 11pm daily.
  4. In response to Miss C’s complaint, Environmental Health commented retrospectively on the application to say if they had been consulted at the time it is likely they would have sought an acoustic report or additional information about how noise could be minimised.
  5. The Council has also amended its criteria to require Environmental Health to be consulted as a matter of course on all future applications relating to a change of use to Use Class D2.
  6. Environmental Health had started to investigate whether the noise being reported by Miss C was causing or likely to cause a statutory nuisance but this investigation was suspended due to the closure of the gym under national restrictions.

My assessment

  1. The case officer’s report does not provide an assessment of the impact of the size and scale of gym which had increased in size compared with the earlier application for a 363 square metre gym to a 581 square metre gym including a new mezzanine floor. This would increase both the number of customers and the potential for noise within the unit. The gym’s mezzanine floor would also act to bring some of that noise closer to the unit’s neighbours who live above. There is also no reference to the other potential noise sources likely to affect residents above the gym which would include music and noise from gym users including from weights being dropped or the potential nuisance from vibration issues. There is no evidence of consideration of these issues in the report.
  2. The Council’s says the case officer considered all other noise sources but focused on the one which in their professional judgement would be the most significant.
  3. I consider the report should have provided an assessment of the increase in size of the proposed gym and the introduction of a new mezzanine floor and the potential noise sources likely to affect residents above the gym at this location. There is no evidence these issues were properly considered which is fault.
  4. The Council says the application was determined in the same way as other applications for a change of use in terms of consultation with its Environmental Protection team.  The Council says there was no requirement to do so under its policy at the time.
  5. I consider a change of use from a retail unit (Class A1) to (Class D2) a gym should have triggered such consultation under the Council’s existing checklist given the likelihood of introducing noise issues. I would also have expected the case officer to have actively considered such consultation even if it had not been identified at the initial stage during the course of their own consideration of the application. In any event, I am satisfied Environmental Health comments should normally be sought for the development of a gym in close proximity to residential properties.
  6. I note the Council has since amended its criteria to require Environmental Health to be consulted as a matter of course on all applications relating to a change of use to Use Class D2. The Ombudsman would welcome this action.
  7. I consider the Council’s failure to consult with Environmental Health for this application constitutes fault either through an inadequate policy on such consultation at the time or in how the policy was applied in practice.
  8. I am satisfied the above fault has caused Miss C and potentially other residents an injustice as there was a missed opportunity to consider potential mitigation of noise and vibration as part of the planning process.
  9. Miss C and other residents are now left with the position that the gym has a valid planning permission which has been implemented. It is not possible to know whether the application would have been refused, amended or subject to additional conditions in the absence of an acoustic report or additional information about how noise and vibration could be mitigated.
  10. It is for this reason that I consider the Council should resume its investigation into whether the noise and vibration being reported by Miss C constitutes a statutory nuisance as soon as possible. If a statutory nuisance is identified the operator will be required to abate the nuisance (subject to any best practical means defence) which may provide the most practical remedy for Miss C and other residents. However, depending on the outcome of these investigations it may also be necessary for the Council to arrange an acoustic report and the completion of any recommended action to mitigate noise and vibration.
  11. In the circumstances, it will remain open to Miss C to make a new complaint to the Ombudsman if she remains unhappy once the outcome of the Council’s further investigations and actions are known. We would then be better able to assess if Miss C and other residents suffered unacceptable levels of noise and vibration for longer than necessary requiring a further remedy.

Agreed action

  1. The Council has agreed the following action to provide a suitable remedy for this complaint:
      1. write to Miss C to apologise for the fault in its consideration of the planning application within one month of my final decision;
      2. pay Miss C £200 for her time and trouble in making the complaint within one month of my final decision;
      3. resume its investigation under the Environmental Protection Act 1990 to assess if the noise and vibration being reported by Miss C constitutes a statutory nuisance within one month of the gym reopening;
      4. if a statutory nuisance is identified ensure that appropriate action is taken by the operator to abate the nuisance within a reasonable timescale;
      5. if the Council is either unable to or does not identify a statutory nuisance it should use its best efforts to arrange an acoustic report within one month of the outcome of its investigation; and
      6. use its best efforts to ensure any recommended action contained in the acoustic report to mitigate noise and vibration is completed within a reasonable timescale.


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Final decision

  1. I have completed my investigation as I have found evidence of fault but consider the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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