Summary: Mr X complained the Council failed to notify him and consider his amenity before approving a planning application, and that the new business causes excessive noise disturbance which disrupts his family life and the enjoyment of his home. The Council is at fault because it failed to properly consider Mr X’s amenity during the planning process. The Council has agreed to conduct a comprehensive assessment of the noise disturbance and dependent on the results, it will take appropriate action to mitigate or reduce noise disturbance. The Council will also pay Mr X £250 as a symbolic gesture for the time and trouble and distress this matter has caused him and review its procedures.

The complaint

1. Mr X complained the Council did not notify him of a planning application to change the use of a vacant business premises directly below his home, denying him the opportunity to comment. He also said it did not consider during the planning process how the change of use would impact on his amenity. He says the new business has disrupted his and his family’s home life due to noise disturbance. Mr X wants the Council to accept it made errors during the planning process and to take action to reduce the noise disturbance in his home.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke with Mr X and considered the information provided by Mr X and the Council.
5. I considered the Council’s Statement of Community Involvement.
6. I spoke with the Council’s Environmental Protection Team.
7. Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

8. Planning permission is required for the development of land including its material change of use. Planning permission may be granted subject to conditions relating to the development and use of land.
9. A planning condition is a restriction placed on the granted planning permission which allows the development to go ahead if the condition is satisfied. This gives a Council enforcement powers if there is a breach of the condition.

Publicity of planning applications

10. Section 15 of The Town and Country Planning (Development Management Procedure) (England) Order 2015, sets out the minimum requirements for how councils publicise planning applications.
11. For major development applications, councils must publicise the application by:
• a local newspaper advertisement; and either
• a site notice; or
• serving notice on adjoining owners or occupiers.
12. For all other applications, including minor developments, councils must publicise by either:
• a site notice; or
• serving notice on adjoining owners or occupiers.
13. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for a SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.

The Council’s Statement of Community Involvement

14. This statement outlines the Council’s commitments for consultation and publicity and how the Council implements them. It acknowledges the importance of good community engagement in planning and says it aims to involve all sections of the public in the development of Local Plans and planning decisions. It says involving the community in the planning process has many benefits which include identifying issues early on and it can lead to better decisions.
15. The statement includes a commitment to neighbour notification, which says the Council will send a notification letter to any property owner or occupier adjoining any land or building to which the application relates. The legal minimum period for consultation is 14 days.

What happened

16. Mr X and his family rent a property above a business premises. They have lived in the property since 2010.
17. The business premises below was occupied by a bank until 2018. In October 2019, an applicant applied for planning permission to the Council to change the use of the business premises from a bank to a gym. As part of the application process, the Council said it conducted a site visit and considered any previous planning applications in relation to the development. It obtained and considered any comments from consultees with specialist knowledge such as the Environmental Protection Team. It says it also notified neighbours directly and put up a site notice so it could consider any comments received by neighbours and other interested parties.
18. In January 2020, the Council granted planning permission for the development. It did not impose any conditions to control potential noise disturbance.
19. When the development of the gym began and the gym opened, Mr X complained to the Council. He said the noise coming from the gym was excessive and was disrupting his and his family’s daily life. He said the noise disturbance started at 5.45am and continued into the late evening.
20. Mr X said the Council had not considered his and his family’s living accommodation above the business premises. He said despite being directly above the business premises, the Council did not list his property on its neighbour notification list and did not send him a direct notification of the proposed application. He said the site notification the Council put up was not noticeable as it was placed near a bus timetable. In addition, he and his family access their property from another entrance and as a result, did not see it. Mr X said they were not given the opportunity to consider the planning application and submit their views to object to the application.
21. Mr X said none of the planning application documents, including the Council’s Planning Officer’s Report, illustrated Mr X’s property was considered during the process. The report stated, “the proposal for the change of use is considered to have an acceptable impact on neighbouring occupiers”. Mr X said it was clear the Planning Officer did not attend the site. The report also stated, “noise and activity arising from the proposed use would be similar to the existing use”. Mr X said when the business operated as a bank, he and his family were not affected by any noise but since it became a gym, the noise level has become unacceptable.
22. The Council responded to Mr X’s complaint. It firstly apologised to him for not sending him a direct notification. It said it was an administrative error and assured him it would not happen again. However, the Council said the statutory requirements for notification on this type of planning application was either to send a direct notification to adjoining properties or to place a notice on the site. The Council said it was not required to do both and therefore it was satisfied it met the statutory requirements for consultation on this application.
23. The Council continued and said its planning officers had considered Mr X’s property and it was acknowledged in the planning application documents. It said it had received no concerns from consultees with specialist knowledge, and noise nuisance was one of the key considerations in determining the application. It said at the time it granted approval, it had sufficient information to make a decision on the proposed development. The Council apologised to Mr X that the noise was affecting him and his family but it believed its decision-making process was not negligent. It referred Mr X to its Environmental Protection Team so the noise disturbance could be investigated further.
24. Mr X contacted the Environmental Protection Team. The Team asked the gym owner to not make any noise before 7am. The Team said it was difficult to ask the gym owner to do more than this because no planning conditions had been applied to restrict opening hours and noise levels when the development was approved. The Team is still investigating Mr X’s complaint. Mr X remained unhappy and complained to us.

My investigation with the Council’s Environmental Protection Team

25. As part of my investigation, I spoke with an Officer from the Environmental Protection Team who is involved with Mr X’s case.
26. The Environmental Protection Team was consulted during the planning process and said it had no objections to the development plan. The Officer said one the key factors the Team considers when it reviews an application is the impact on residents and on this occasion, it was not aware there was a residential flat above. The Officer said the Team was not certain about what was actually going to be developed. They said it read to them like it was going to be a pilates or a yoga studio. The Officer said if the Team knew it was going to be a gym and there were occupied residential flats above the premises, it would have suggested conditions such as noise containment measures and restrictive hours of operation. They also would have limited the hours of construction work on the development. The Officer said if conditions had been placed during the planning application process, they wouldn’t be in the position they were in now.

Further information from the Council

27. In the Council’s response to Mr X’s complaint, it said because of an administrative error, the Council had failed to send Mr X a direct notification. As part of my investigation, I asked the Council what the administrative error was and what should have happened if it was not for the error. The Council responded and said, “on further investigation it is clear that our usual procedures were followed as notifications were sent to those properties adjoining the site outside of the red line shown on the application plans. In addition, a site notice was erected outside the application site”.

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Findings

Neighbour notification

28. As outlined between paragraphs 10 and 15, the statutory legal requirement and the Council’s Statement of Community Involvement policy both refer to a direct notification being served to adjoining owners or occupiers in relation to publicising planning applications. Mr X’s flat is directly above the business premises which makes it part of the property which the application relates to. It is not located on adjoining land or within an adjoining building to the property. Therefore, the Council was not legally required to serve notice of the application to Mr X’s property and was not at fault. However, it would have been good practice for the Council to have notified Mr X as his property is directly above the business premises and so likely to be affected. Notifying Mr X could have identified issues earlier.

Consideration of Mr X’s amenity

29. There is no evidence the Council appropriately considered Mr X’s amenity as a direct neighbour. He is the only residential neighbour, but his property is not referred to in the report. The Planning Officer’s report contained more general statements such as the change of use is, “considered to have an acceptable impact on neighbouring occupiers” and “overall it is considered that there would be no significant harm caused to the immediate neighbouring properties in terms of loss of residential amenity”. Although planning reports do not have to cover every possible planning consideration, they should cover the principle and controversial issues. It would be reasonable to presume that a gym would generate more noise than a bank, and be open for longer hours, and yet the potential impact of this on Mr X’s amenity as a direct residential neighbour is not discussed in the report. Without adequate discussion of this, we cannot know whether the Council properly considered the impact of the change of use on Mr X’s property. This was fault.
30. It is unclear whether the Environmental Protection Team had sufficient information to appropriately consider any potential impact on Mr X’s amenity before it told the planning team it had no objections to the application. The development plan did not clearly show a residential flat above the premises. The Environmental Protection Team told us it was unsure of the nature of the proposal during the consultation process but there is no evidence it sought to clarify this. This leads to uncertainty about whether the Environmental Protection Team’s decision not to object was taken correctly. This was fault.
31. Overall, the Council did not appropriately consider how the change of use would affect Mr X’s property or his amenity. Although we cannot know for certain, had it properly considered the impact of the change of use on Mr X’s amenity, it may have imposed planning conditions related to noise levels and hours of use, to protect his amenity. It did not do this, and so the Council has now lost control, from a planning perspective. However, the Council still has other powers which it could use to ensure noise from the gym does not unreasonably interfere with Mr X and his family’s home life. It should now act to remedy any injustice caused to Mr X by the faults identified during the planning process.

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Agreed action

32. Within two months of the final decision, the Council has agreed it will complete a comprehensive assessment of the frequency and levels of noise disturbance caused to Mr X and his family, to establish what impact the noise from the gym is having on them.
33. Subject to the results of this assessment, within three months, the Council will then work with Mr X and the gym owner to consider and agree what action it can take to reduce or mitigate any identified noise disturbance to levels the Council considers acceptable.
34. Within one month of the final decision, the Council will pay Mr X £250 as a symbolic gesture to recognise the distress this matter has caused him and the time and trouble taken to resolve his complaint.
35. Within three months of the final decision, the Council will review its guidance for specialist teams to ensure it is clear that they can request additional information if they require it before they submit any comments to the Council’s planning team on a proposed development.

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Final decision

36. I have now completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman