Summary: Mr X complained the Council failed to send him notice of a planning application to convert a neighbouring property to a 24-hour gym. Mr X also complained the Council failed to take enough action to reduce the noise caused by the gym in line with the planning conditions. Mr X says the Council’s actions have prevented him from having fair opportunity to comment on the planning application and the noise caused disturbs him during the night and day. The Ombudsman found fault with the failure of the Council to consult Mr X as part of the planning process and failure to verify the gym’s compliance with planning conditions. The Council agreed to the Ombudsman’s recommendation to complete an acoustic assessment from Mr X’s block of flats.

The complaint

1. Mr X complained the Council failed to send him, or any other residents of his building, a notice letter for a planning application to convert a neighbouring property to a 24-hour gym. Mr X said this is despite the Council sending letters to two other neighbouring properties which are further away from the planning application site.
2. Mr X complained the Council erected the notice poster 70 metres from the entrance to his building.
3. Mr X said the Council effectively prevented he and his neighbours from having fair opportunity to comment and object to the planning application.
4. Mr X also complained the Council failed to take enough action to reduce the noise caused by the gym in line with the planning conditions attached to the planning application.
5. Mr X said the Council’s discussions with the gym to reduce noise have been ineffective and the gym disturbs his sleep every night and are disruptive during the day.

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The Ombudsman’s role and powers

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 have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. I have also considered the planning application, the planning officer’s report and decision notice.
10. Mr X provided comments on my draft decision. I considered Mr X’s comments before making my final decision.

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What I found

The Law

Planning applications

11. When a council makes a decision on a planning application it can only take certain issues into account. These are often referred to as “material planning considerations.” Examples of material planning considerations include:
1. Local and national planning policies.
2. Loss of sunlight
3. Overshadowing or loss of outlook
4. Highway issues
12. Councils cannot consider some matters which are often raised but are not material planning considerations. Examples of these include private disputes between neighbours and loss of a view.

Consultation

13. A council must publicise a planning application through either a site notice or through direct consultation letters to owners or occupiers of adjoining properties. (Section 15 of the Town and Country Planning (Development Management Procedure) England Order 2015)
14. The Council’s policy on consultation, under Southwark’s Statement of Community Involvement, requires the Council to serve letters to adjoining owners or occupiers and erect a site notice.

Planning controls and enforcement

15. Planning controls the design, location and appearance of development as well as its impact on public amenity. Planning controls are not intended to protect private rights or interests. The Council may grant planning permission subject to planning conditions to control the use or development of land.
16. Councils can take enforcement action if they find a developer has breached planning rules. However, councils do not have to take enforcement action just because there has been a breach of planning control.
17. Government guidance says:
18. “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 2012, paragraph 207)
19. Addressing breaches of planning control without formal enforcement action can often be the quickest and most cost effective way of achieving a satisfactory result. The Council should keep a record of informal action, including a decision not to take further action.
20. Most building work needs Building Control approval. The Building Control Regulations set standards for the design and construction of buildings to ensure health and safety for people in and about those buildings. Primary responsibility for building work rests with those who commission it and those who do the work. Local Authorities do not act as a “clerk of the works”.
21. Planning Officers have a power granted by statute to enter onto an application site to assess a planning application. They may visit land outside the application site if invited to do so by the land owner. The decision on whether to do so is a matter for the Officer’s discretion.

Council enforcement plan

22. The Council’s enforcement plan states it will apply conditions to planning permission to ensure developments are acceptable and suitably control.
23. The Council will aim log and acknowledge a request for an enforcement investigation within three days. The Council will either ask for further information or assign the case to an enforcement officer.
24. The Council will aim to investigate a complaint within 12 weeks.
25. The Council can issue a Planning Contravention Notice requiring a person to provide information to show compliance with planning conditions. The Council can also carry out visits when needed.
26. If the Council decides that a development is harmful in planning terms it will send a letter outlining a breach.
27. The Council can close an enforcement case if it finds no breach.

What happened

28. On 30 April 2018, a business made a planning application to covert a building underneath Mr X’s block of flats into a gym which opens 24 hours per day. The planning application referenced Mr X’s block of flats in its planning application. The business confirmed it had completed an acoustic assessment of the site due to the proximity of residential buildings.
29. The Council sent notice letters to residents of nearby properties on 10 May 2018. The Council did not send any letters to the residents of Mr X’s block of flats.
30. The Council posted a notice about the planning application on the front of the proposed building on 17 May 2018.
31. A resident objected to the gym opening for 24 hours a day on 28 May 2018.
32. On 4 June 2018, the Council’s Environmental Protection Team asked the planning department to get a copy of the acoustic assessment from the planning applicant as this was not present on the planning file. The Environmental Protection Team advised it objected to the application until the applicant provided the acoustic assessment.
33. The applicant provided the acoustic assessment, Acoustic Assessment 1, which the Council’s Environmental Protection Team reviewed. The Environmental Protection Team advised it approved the planning application provided the Council applied a condition that the applicant carried out all recommendations in Acoustic Assessment 1.
34. The Council’s development manager queried the noise potentially produced by a gym. The Environmental Protection Team advised the planning conditions should also include confirmation the maximum noise caused by the gym is no greater than the ambient noise in all nearby residential properties.
35. The Council’s planning officer produced a planning report on 3 July 2018. The planning officer said:
• The gym is unlikely to affect the amenity of neighbouring properties as the design layout puts the activity studio away from a separating wall.
• The Environmental Protection Team recommended a condition for the gym to put all recommendations from the Acoustic Assessment 1 in place.
• The gym had addressed objections raised about noise through the layout of the gym and materials proposed for the build.
• Use of the gym would be significantly lower outside peak times so the noise created overnight would be lower.
36. The Council officer recommended approval of the planning application subject to planning conditions. Condition 3 outlined the builder should carry out all recommendations from Acoustic Assessment 1. Condition 3 also outlined the maximum noise levels from the gym use at any time should be no more than ambient noise levels in all nearby residential properties.
37. The Council approved the planning application.
38. The gym opened on 21 October 2019.
39. Mr X made a noise complaint to the Council in November 2019 about excessive noise from the gym. The Council opened an enforcement case to investigate Mr X’s complaint.
40. The Council’s Environmental Protection Team recommended the planning team get evidence of compliance with the planning conditions in response to Mr X’s complaint.
41. The Council issued the gym with a possible breach of condition 3 for the planning application on 9 December 2019. The Council asked the gym to:
• Describe the measures taken to ensure sound created within the building is not audible in neighbouring properties.
• Provide evidence of carrying out the recommendations in Acoustic Assessment 1.
• Provide evidence of noise assessments carried out to show compliance with planning condition 3.
42. The gym provided the Council with a description of the noise mitigation measures it had carried out including the layout of the gym and use of a fully-floating floor in the weight lifting areas. The gym provided evidence of the materials and flooring it had used in compliance with Acoustic Assessment 1 and two Acoustic Reports completed in July 2019 and December 2019.
43. The July 2019 Acoustic Report tested 35kg dumbbell weight drops in both the functional area and weights area. The weight drops were inaudible from adjacent block of flats. This block of flats was not Mr X’s.
44. The December 2019 Acoustic Report also tested a dumbbell weight drop and a machine weight drop. Again, both weight drops were inaudible from the same adjacent block of flats.
45. The Council closed the enforcement case as Mr X and the gym agreed a solution to the issues.
46. Mr X asked the Council on 27 September 2020 about the planning application process to confirm who it consulted as part of the planning application. Mr X also complained again about the noise caused by the gym.
47. The Council provided a list of properties consulted as part of the planning application. The Council’s enforcement team contacted the gym to get CCTV footage to investigate Mr X’s noise complaint.
48. Mr X raised a stage 1 complaint on 29 September 2020 the Council did not consult with anyone from his block of flats as part of the planning application.
49. The Council provided its stage 1 response on 20 October 2020. The Council said:
• It should have sent notice letters to residents of Mr X’s block of flats but failed to do so.
• Its Environmental Protection Team advised the Council should add Condition 3 should to the planning application to ensure the gym adhered to the recommendations in Acoustic Assessment 1.
• The Council was correct to approve the planning application subject to Condition 3.
• But, if the gym had not complied with Condition 3 Mr X should raise this with the Council’s enforcement team.
50. Mr X disputed the Council’s stage 1 response. Mr X said the Council did not consult correctly and the adjoining properties it did consult objected to the planning application because of noise concerns.
51. The Council’s Enforcement Team contacted Mr X on 21 October 2020. Mr X confirmed the main source of the noise was people droppings weights at night. The Council asked Mr X to note down times of noise disturbance so they could match this with CCTV footage at the gym.
52. On 22 October 2020, Mr X provided times of the “loud crashing noises” during the night of 21 October 2020. Mr X said it these noises caused the walls and floor to shake. Mr X said people dropping weights about 50kg was likely to cause this issue.
53. The Council’s Enforcement Team liaised with the gym. It confirmed both a weight drop and a slam ball occurred at the times Mr X noted. The Council advised Mr X the gym had complied with the planning permission and conditions, and it had received Acoustic Reports confirming compliance. The Council said it had not designed the condition about noise to completely remove loud noise events. The Council advised it could not seek enforcement as there was no breach of conditions. The Council invited Mr X to provide further times of noise incidents.
54. Mr X provided further noise incidents on 23 October 2020. Mr X disputed the weights used in the acoustic testing and the location of the testing in a different block of flats. Mr X asked the Council to complete acoustic testing under a recreation of the noise events he is experiencing.
55. The Council responded to Mr X on 29 October 2020. The Council said the Acoustic Reports found no breach of compliance with the planning conditions. The Council decline to complete another acoustic test.
56. The Council provided its stage 2 response on 17 December 2020. The Council said it acted in line with legislation in erecting a site notice but apologised for not sending a notice letter to Mr X. The Council confirmed the gym complied with planning conditions and it could not take enforcement action.
57. Mr X complained to the Local Government and Social Care Ombudsman on 18 December 2020.

Analysis

Planning application and consideration

58. Mr X complained the Council failed to consult anyone from his block of flats about the planning application for the gym.
59. The relevant legislation only requires a council to erect a site notice or sending consultation letters, not both. The Council met its duty under legislation by erecting a site notice at the entrance of the proposed development. While Mr X had concerns about the location of this site notice, this is on the entrance to the site, and I do not find fault.
60. However, the Council’s policy requires it to both erect a site notice and send consultation letters to adjoining properties. Mr X’s block of flats directly adjoins the gym. The Council was at fault for failing to follow its policy.
61. The Council has already admitted this fault and apologised to Mr X within its complaint responses.
62. This fault by the Council caused Mr X a lost opportunity to comment on the planning application.
63. Mr X’s concerns raised with the Council, since the gym opened, have related to noise created by the gym.
64. The Council received objections to the planning application from other residents who referenced potential noise as part of their concerns. The Council planning officer’s report considers the objections received about noise. This consideration, with input from the Council’s Environmental Protection Team, resulted in the Council attaching Condition 3 to the planning application.
65. Added objections from Mr X, or other residents from his block of flats, would unlikely have changed the outcome of the planning application. This is because the Council’s planning officer will not be swayed by the number of objections about the same issue.
66. Had the Council’s planning officer considered the impact of noise on residents’ amenity enough to reject the planning application, this would only need one objection. The Council’s planning officer considered the relevant factors and recommended approval of the planning application with conditions.
67. While I found fault with the Council failing to consult Mr X as part of the planning application, the injustice to Mr X is not significant. This is because this has not changed the likely outcome of the planning application. The apology the Council has already provided is sufficient to address this fault.

Planning conditions and enforcement

68. Mr X complained the Council failed to take enough action to reduce the noise caused by the gym in line with planning conditions.
69. When Mr X contacted the Council’s enforcement team in 2019 about noise from the gym. The Council opened an enforcement case. The Council contacted the gym and asked for information to show compliance with condition 3 attached to the planning application. The Council acted in line with its policy when handling the enforcement case and I do not find fault.
70. The gym provided relevant information showing the materials it used in construction, how it designed the layout of the gym and Acoustic Reports it completed.
71. When considering this information, the Council needed to have consideration of Condition 3 of the planning application. Condition 3 had two main parts. It required the builder to:
• Build the gym in adherence to all recommendations made in Acoustic Assessment 1; and
• Ensure the maximum noise from the total of all gym uses at any time is no more than the ambient noise levels in all nearby residential premises.
72. Acoustic Assessment 1 noted that weight drops on the bare floor slabs were audible in neighbouring residential properties. Acoustic Assessment 1 recommended flooring materials to make any weight drops inaudible and reduce the natural frequencies into the 3hz to 5hz range.
73. The gym provided the Council with evidence of the materials used for the flooring. The evidence of the materials used complies with Acoustic Assessment 1’s recommendations and brings natural frequencies down to 5hz.
74. Acoustic Assessment 1 also recommended using a floating floor on spring mounts for any substantial barbell and Olympic weight-lifting areas. The gym also provided evidence it had installed a fully-floating concrete inertia block mounted on anti-vibration mounts for the weight-lifting and functional areas of the gym. This is again compliant with recommendations from Acoustic Assessment 1.
75. The Council decided the gym was built in adherence to all recommendations in Acoustic Assessment 1. The Council was entitled to make this decision and there is no evidence of fault in this decision-making process.
76. However, the Council relied on the Acoustics Reports completed in July 2019 and December 2019 to satisfy itself of the second part of Condition 3. These Acoustic Reports confirmed dumbbell weight drops of 35kg were inaudible in an adjacent block of flats.
77. While these weight drops show partial compliance with condition 3, they do not test the full variables outlined in Acoustic Assessment 1. Acoustic Assessment 1 specifically stated that “substantial bar bell and Olympic weightlifting” can introduce substantially more energy into the flooring system.
78. While the term “substantial” is subjective, and no exact weight can be attached to this, a person can only carry out Olympic weightlifting through barbell exercises. Testing with a dumbbell drops does not reflect the weight drops referenced within Acoustic Assessment 1.
79. Additionally, both Acoustic Reports completed tests from the same block of flats. This was not Mr X’s block of flats. Condition 3 references all nearby residential premises. While an acoustic assessment from every individual flat may be excessive, it would be suitable to test from each neighbouring block of flats.
80. Neither the gym nor the Council has completed an acoustic test using a substantial barbell or Olympic weight or from Mr X’s block of flats. The Council can satisfy itself of the materials used. However, it cannot satisfy itself that the maximum noise from the total of all gym uses at any time is no more than the ambient noise levels in all nearby residential premises. This is fault in the Council’s decision-making process.

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Agreed action

81. Within three months of the Ombudsman’s final decision the Council agreed to:
• Complete an acoustic assessment from Mr X’s block of flats to test noise caused by the gym (a substantial barbell or Olympic drop-weight in the relevant area of the gym should be included as part of the testing).

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Final decision

82. There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman