Summary: Mr C complained the Council failed to properly notify residents about a planning application for two silos containing materials used in concrete production or properly consider the application. Mr C also complained the Council failed to take effective action in response to residents’ reports of nuisance and breaches of planning control. Mr C says residents missed the opportunity to comment on the planning application and suffer a significant and damaging impact on their residential amenity. We have found no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains on his own behalf and for several neighbours that the Council failed to properly notify residents about a planning application for two silos containing materials used in concrete production or properly consider the application. In particular, Mr C says the Council wrongly decided the application site benefitted from a particular planning use and so the application did not present a material change of use. Mr C also complains the Council failed to take effective action in response to residents’ reports of nuisance from noise, dust and light as well as breaches of planning control and the environmental permit. Mr C further complains about the way the Council responded to complaints about the matter.
2. Mr C says because of the Council’s fault, residents missed the opportunity to comment on the planning application and suffer a significant and damaging impact on their residential amenity from excessive noise, dust, light and heavy goods vehicle traffic.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C excluding third party information. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background

Planning applications

7. 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.
8. 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.
9. 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.
10. 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.
11. 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.

Planning enforcement

12. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.
13. Section171A of the Town and Country Planning Act 1990 (the Act) provides that a breach of planning control is defined as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

14. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
15. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.
16. Section 171B of the Act sets out the time limits within which Councils are able to take enforcement action. Development becomes immune from enforcement if no action is taken:

• Within four years of substantial completion, where there has been a breach of planning control consisting in the carrying out without planning permission of operational development (building, engineering, mining or other operations) in, on, over or under land;
• Within four years, where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house;
• Within ten years, for any other breach of planning control.

Statutory nuisance

17. 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.
18. 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.

19. 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.
20. 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.
21. 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.
22. 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.
23. 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

24. A company built two silos on a site near the complainants. The Council received a report in November 2019 about the development and visited the site. The Council has provided dated photographs of this visit.
25. The Council received a retrospective planning application for the development in December. The application form described the proposals as “movement of existing silos in the yard” and confirmed the work had been completed in October.

Publicity for planning application

26. The Town and Country Planning (Development Management Procedure) (England) Order 2015 sets out what notice a council must give for different types of planning application. For this application, the Council had to provide notice by a site notice or by serving the notice on any adjoining owner or occupier. Adjoining owner or occupier is defined in the above Order as “any owner or occupier of any land adjoining the land to which the application relates”. Adjoining will generally be considered as land that shares a common boundary with the application site.
27. The Council’s Statement of Community Involvement says that although it will use site notices for certain planning applications it will notify adjoining owners or occupiers by letter for all planning applications.
28. The Council has provided details of its publicity for the application. It erected a site notice dated 19 December to the front of the application site which stated it had received a planning application for the “erection of 2no silos (Retrospective).” The Council also sent notification letters dated 12 December to industrial units adjoining the red line area of the site and two residential properties next to the wider site. The Council has provided a copy of the template letter and address list used. The Council has also provided details of the newspaper advertisement of the application which was published on 26 December. All publicity used the same description of the application.
29. Mr C says the site notice would be difficult to see if it had been placed on the gates to the site as these are set back some distance from the road and kept open during the day. Site notices should ideally be displayed at the site location or as near as possible on land that is publicly accessible. The Council cannot now provide evidence of the exact location of the site notice for this application but has provided photographs of other site notes at this location which were attached to the open gates and could be seen from the highway. Although there is no legal requirement for a council to provide photographic evidence it has put up a site notice taking such a photograph on a digital camera and keeping a record on file can help councils show they have fulfilled the statutory publicity requirements. I note the Council has done so for some applications and it may wish to consider adopting this practice for all future applications. However, in this case the statutory requirement was for the Council to notify by site notice or notify adjoining owners or occupiers by letter.
30. The surrounding residential properties do not share a common boundary with the development site as defined by the red line area on the site location plan. The Council says in these circumstances it will usually notify those neighbours immediately next to the site. The Council sent notification letters to two residential properties and adjoining industrial units. Mr C has questioned why other properties were not sent letters but these did not adjoin the red line area of the application site.
31. Mr C says the description of the proposals did not adequately reflect the development as it only referred to the erection of two silos rather than providing details of their intended use in concrete production.
32. Planning application descriptions should be accurate, clear and precise. They should identify the key parts of the proposal that require planning permission but not include irrelevant details or set out a justification for the proposal.
33. I do not consider there was any fault by the Council in terms of its publicity for the application. This was a retrospective application for the erection of two silos. The Council did not consider this was a change of use and so it was not required to add anything further to the description. In essence the unauthorised development in the retrospective application that required planning permission was the two silos as ‘operational’ development. The decision for the Council was whether the silo structures as positioned should or should not obtain planning permission.
34. Based on the information provided, I am satisfied the Council met the statutory publicity requirements and the requirements of its Statement of Community Involvement for the application.

Consideration of planning application

35. The case officer’s report for the application says the proposals were for the erection of two silos used in concrete production. The report goes on to say the site was formerly a stone works and had recently changed to concrete production and was next to a conservation area. The report sets out the relevant planning history of the site and provides a summary of the representations received. These included two objections which raised issues of health risks from airborne cement dust, sleep disturbance from early morning operations and noise from heavy goods vehicles running engines while stationary and the visual impact of the silos as they were higher than the existing building and associated signage.
36. The report noted the site was being used for the production of concrete and the silos contained materials used in that production. It also noted the site was previously used for the processing of stone and this use had been established for several years and would have involved vehicle movements and noise. The silos were noted as being used during the manufacture of concrete which was then removed by lorry with the process being completed in the existing building and so it was considered the silos would not create airborne pollution. The case officer noted the need for a separate environmental permit for the operation.
37. The Council has already accepted that the above report wrongly refers to the two silos replacing two previously existing silos on the site when there had only been one such silo. The Council says the case officer was aware from previous site visits and other evidence that there was only one silo which was replaced by two silos. I do not consider this error in the report drafting can reasonably be said to have affected the outcome.
38. The report set out the relevant planning policies and provided an assessment of the material planning considerations before recommending approval subject to conditions. The Council granted planning permission at the end of January 2020.
39. The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
40. I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so. I have seen no evidence of fault in the way the Council reached its decision to grant planning permission for the development.
41. Residents subsequently raised concerns about the previous planning use of the site. The Council confirmed the application it received was for replacement silos rather than seeking a material change of use of the site. The Council considered the site had established B2 General Industrial use and the previous use of the site as a stone masons yard was within that use class. The Council accepted the characteristics and nature of the current use was different to the previous use but it did not require additional permission. The Council has provided details of how it assessed the planning use of the site and provided cogent reasons for its decision.
42. I consider the Council had enough relevant information to reach its decision about the planning use of the site and I have seen no evidence of fault in the way it reached this decision. It is appreciated that residents dispute the Council’s assessment but in the absence of fault this is a decision the Council is entitled to reach.

Reports of breaches of planning control

43. The Council received a report in early November 2019 from a third party that the site was being used for concrete production. The Council visited the site towards the end of November and noted use of the site as a concrete production yard mostly within a building and new hoppers (these are the two silos referred to above) were in use. It was noted the site was previously in use as a stone yard.
44. The Council received a retrospective planning application for the two silos in December. This was approved in January 2020 as set out above.
45. The Council received complaints towards the end of March about the use of the site for concrete production and reports about hours of operation in April. The Council contacted the site operator in April about the permitted operating hours.
46. The Council considers based on previous planning permissions that the hours of permitted operation for the site with the two silos is between 7.30am and 5.30pm (Monday to Friday) and 8am to 1pm (Saturdays).
47. Residents completed logs from May to record the days and times of noise from activities outside the permitted operating hours to help identify which businesses were breaching the permitted hours and establish a pattern of such breaches.
48. It became apparent that there were issues with permitted hours of working for several businesses on the wider site. The Council visited the site in June to witness the starting times for various businesses. The Council wrote to all business on the site in June to confirm the permitted hours of operation and that these must be complied with. The Council also issued notices to two business seeking ownership information ahead of enforcement action.
49. The company had employed an acoustic consultant in March and submitted a planning application in June for the erection of acoustic barriers and extension to operating hours relating to the site with the silos. The Council advised Mr C that enforcement action was on hold pending the outcome of the planning application. The Council completed several further early morning site visits during August and September.
50. The Council issued Breach of Condition Notices to two other companies on the wider site relating to hours of operation in September.
51. The Council provided a detailed written update to residents about both its planning enforcement action and response to reports of statutory nuisance through statements in early September and December. The December update confirmed the Council had arranged CCTV at the site entrance to help monitor activity at the site outside of the permitted hours. This evidence would be considered with the evidence from residents’ logs to establish any breaches of working hours. The Council confirmed it was considering whether the relevant tests for prosecution were met.
52. During this period the Council approved the application for the noise barrier.
53. The Council issued Breach of Condition Notices to two further companies on the wider site in January 2021 relating to hours of operation.
54. The Council provided a further written update to residents in February.
55. The Council has sought legal advice on next steps in relation to the four Breach of Condition notices and decided it is not currently in the public interest to prosecute. The Council is planning further overt CCTV monitoring and is keeping the situation under review.

Reports of nuisance

56. Residents reported nuisance from noise and dust from the site in early 2020. The Council visited the site to witness the problems being reported in February but found no evidence of a statutory nuisance from dust.
57. The Council visited an affected resident in response to reports of noise in early March. The Council contacted the site operator and suggested the use of a noise consultant and possible noise barrier.
58. Mr C contacted the Council about noise from the site making it impossible for him to enjoy his garden. The Council responded to confirm the site operator had appointed a noise consultant to evaluate options for noise mitigation.
59. The Council sent a dust log sheet to residents to complete in May and did not witness unreasonable levels of dust during a visit towards the end of May.
60. The Council advised Mr C it would not complete noise monitoring until the outcome of the planning application for the noise barrier as it was considered this was likely to provide the best solution and further monitoring would not advance matters.
61. The Council visited the area in June and July but there was not enough evidence to say the dust constituted a statutory nuisance. The Council confirmed it did not propose any further action on this issue and advised affected residents of their own private right of action.
62. The Council provided a detailed written update to residents in September. The Council also explained its approach to the reports of dust which had been considered under the Environmental Permitting regime. This sets out conditions the company need to comply with including “no visible particulate matter shall be emitted beyond the installation boundary”. The Council investigated potential sources of dust both from the process itself and from aggregate delivery and storage. This included unannounced site visits and visits to residents’ homes. The Council also consulted the relevant statutory guidance about respirable crystalline silica dust and consulted an Environment Agency specialist about concrete batching processes. The Council concluded that there were negligible emissions as a result of the process but it had witnessed some emissions from the aggregates.
63. During its investigation, the Council sought advice from the Environment Agency, Public Health England and the Health and Safety Executive. The Council also used an indicative air quality monitor for nitrogen dioxide and particulate matter (PM10) between February and April 2021 to obtain objective levels of particulate matter. The Council continues to monitor nitrogen dioxide levels and will do so for the remainder of 2021.
64. The Council noted it was working with the company to make improvements to general site management in line with its published enforcement approach. These improvements which the Council monitored during unannounced visits included:

• increased use of a water suppression system during business hours in dry weather conditions
• increasing the practice of hosing down vehicles before leaving the site
• erection of a 3-sided, covered barrier around the main location of aggregate deliveries
• two road sweeping vehicles had been purchased to clean the access road
• a site cleaning person had been employed on a full-time basis

65. The Council confirmed it had also investigated the dust in terms of statutory nuisance and decided after visits to nearby properties that the dust was not sufficient to constitute a statutory nuisance that could be attributed to dust arising from the company.
66. The Council also confirmed the following steps in relation to noise:

• appointment of an independent noise consultant by the company
• submission of a planning application to erect two barriers
• revisions to the application in response to residents’ objections

67. The Council issued a noise abatement notice to the company towards the end of January 2021. This required the company to abate the noise statutory nuisance of noise from concrete batching and associated activities and erect a barrier to ensure specified noise limits were met within four months.
68. Part of the noise barrier was built in February. The Council provided a further written update to residents in February.
69. The Council received a revised planning application in March 2021 relating to the acoustic barrier.
70. The noise abatement notice time period for compliance expired in May.
71. The Council refused the revised planning application above at the end of July and this decision is now the subject of an appeal to the Planning Inspectorate by the applicant.
72. The Council sought legal advice about next steps and has put on hold further action pending the outcome of the appeal. The Council provided an update to residents in August about its environmental investigation and the impact of the planning appeal.
73. The Council has provided evidence that it has responded to residents’ reports of both nuisance and planning breaches at the site and taken action as set out above. The Council has provided cogent reasons where it has delayed or not taken action. It is appreciated that residents would have preferred the Council to take different action but I have seen no evidence of a failure to respond or undue delay that would constitute fault by the Council.
74. This is clearly an ongoing issue for local residents and I would expect the Council to ensure it provides regular updates going forward about both its action relating to breaches of planning control and nuisance.

Complaint handling

75. Mr C complained to the Council in towards the end of April about the publication and consideration of the application, the Council’s response to his reports about the site and its assessment of the planning use of the site. The Council responded at the first stage of its complaint procedure in mid-May.
76. Another resident contacted the Council on behalf of residents including Mr C at the end of May. The Council held a meeting with local residents in June to discuss the issues raised.
77. Mr C says another resident did not receive a response when he sought to escalate his complaint in mid-August. The Council says an officer spoke with the resident by telephone on 3 September and visited him 15 September. The Council also completed noise monitoring at this property during October but did not identify a statutory nuisance. The resident disputed the Council’s assessment and was advised about their own right of action. The Council apologised to the affected resident in February 2021 for not providing a formal response to the complaint at the time. I consider this action provided a suitable remedy for any injustice caused and there is no benefit in further investigation on this issue.
78. Mr C made a further complaint via his local Councillor at the end of December. The Council responded towards the end of January 2021. Mr C had also complained directly to the Ombudsman in December 2020 and the Council confirmed it considered the matter had completed its complaints procedure.

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Final decision

79. I have completed my investigation as I have found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman