Summary: Mr C says the Council is at fault for its failure to prevent a local company from breaching planning conditions barring it from working outside normal working hours, from making excessive noise and other nuisances. He says this has caused him and his wife injustice as their enjoyment of their property has been diminished. The Council was not at fault. The Council is not at fault for any breaches of planning conditions by the company and it has taken action to control the company when it deemed it appropriate.

The complaint

1. The complainant, who I have called Mr C, complains about Council fault related to a company (‘the Company’) which has set up a business in his village. He says the Company received planning permission for a new plant but then built one much bigger than was approved which makes noise and pollution which disturbs the whole village. He says the Council is at fault for:
1. A failure to take enforcement action to require the Company to rebuild the plant in line with the grant of planning permission;
2. Granting retrospective planning permission for the plant.
3. Agreeing a scheme of planting around the plant which is slow growing and will not provide any effective soundproofing for 20 years and, even then, only in summer.
4. Failure to consider his request for a soundproof screen or coniferous boundary;
5. Failure to take enforcement action to prevent noise nuisance; and
6. Failure to investigate the cause of dust that covers the village or take action to prevent it.

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What I have investigated

2. Aspects of Mr C’s complaint concern events which took place as long ago as 2017. We cannot investigate ‘late complaints’ unless there is good reason. I am not aware of any good reason allowing me to investigate in this case.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate a late complaint unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 considered the documents sent to the Ombudsman by Mr C. I wrote an enquiry letter to the Council. I considered all the evidence I had gathered and applied any law before writing a draft decision.
7. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Planning permission

8. The central government has passed laws and regulations and issued guidance to control planning in England. The general rule, set out in the National Planning Policy Framework, is that permission for planning must always be granted by a local planning authority, unless there are sufficient reasons not to do so. Reasons not to do so include a finding that the development would interfere with the ‘amenity’ of local people and that the development does not comply with local planning policy and guidance.
9. Councils are the planning authorities for their areas. Those wishing to carry out development in the area must usually ask their council for planning permission.
10. Outline applications are used to establish the principle of a proposal, leaving the ‘reserved matters’ to be considered at a later stage. Applications may be made with some or all matters reserved until later. Planning authorities may grant outline permission subject to conditions which the applicant must comply with in order to comply with the grant of permission as the development progresses.

Reserved matters approval

11. If a developer is granted outline permission, they must apply for reserved matters approval within 3 years. An application for approval of reserved matters is not a planning application and there is no statutory requirement for publicity. The reserved matters can include:

• Appearance – the design and materials for a building or place.
• Access – details of how the development is accessed from roads and paths outside the site.
• Landscaping – showing how the development site will look, including details of plants and trees to be used.
• Layout – plans show where buildings, routes and spaces within the site are laid out in relation to each other as well as areas outside the site.
• Scale – information on the size of the development, such as the height width and length of a proposal. This is often shown in a scaled plan.

Enforcement

12. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control is defined in the Town and Country Planning Act 1990 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.

13. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under s.172 of the Act. It is for the planning authority to decide whether it is expedient to take action. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.
14. A council may also invite someone without planning permission to apply for retrospective planning permission to provide an unauthorised structure with permission after the event.

Noise nuisance

15. Complaints about noise and other nuisances are governed by the Environmental Protection Act 1990. On receiving a complaint about a noise or other nuisance, a council must investigate to see whether it amounts to a ‘statutory nuisance’. To qualify as a statutory nuisance, it must either:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• Injure health or be likely to injure health.
16. The law says a statutory noise nuisance must be sufficient to cause distress to a person of normal sensitivity. A council officer will therefore visit to make an independent judgment as to whether the noise amounts to a statutory nuisance.
17. Many factors will affect an officer’s decision. They will consider the time and duration of any noise or smell as well as its severity. They may ask complainants to keep a noise diary to help assess the impact on them. Councils may use sound measuring equipment though there is no statutory requirement to do so.
18. If a council decides a noise or odour amounts to a statutory nuisance, it must serve an abatement notice requiring the perpetrator to stop. If it decides that the noise made does not amount to a statutory nuisance it can continue to use informal intervention to try to solve the problem.
19. If, in an officer’s view, the noise, smell or other problem does not amount to a statutory nuisance, the council can continue to take informal enforcement action though there is no requirement for it to do so.

Environmental Permitting Regulations

20. The Environmental Permitting Regulations (EPR) require operators of ‘regulated facilities to obtain a permit or to register some activities which would otherwise require permits. The aim of this regime is to:
• Protect the environment.
• Deliver a system of permits effectively and efficiently in a way that is clear and minimises the administrative burden on regulators and operators.
• Encourage best practice and
• Deliver European legislation.
21. Operators who have a permit to carry out operations which might make are required to follow best practice to ensure that there are no emissions of dust.
22. A local authority acting as regulator is required to check the processes the permit holder follows regularly to ensure that they are in line with EU legislation. Investigations and enforcement actions must be ‘proportionate’ to the risk posed.

What happened

Background

23. Mr C lives in a village in the Council’s area and has done for more than a decade. In 2016, a company which operates in the village (‘the company’) applied for permission to expand its operations. Permission was granted in 2017. Mr C says the company then built a structure which was not in accordance with the approved plans.
24. Mr C says the company also built other industrial structures without permission. He says the Council later invited the company to apply for retrospective planning permission for these and later granted it.
25. The 2017 permission was subject to certain conditions. These included:
1. A requirement that the site should be screened by a border of trees and shrubs, and
2. A ban on the operating of machinery or the operating of any ‘processes’ apart from during standard working hours and never on bank holidays or Sundays.
26. The company has applied for several further planning permissions since then and, each time similar conditions have been imposed.
27. Mr C says the border screening is inadequate. He says it comprises slow growing, deciduous native trees such as oak and alder which will take years to provide any screening but which, because they lose all their leaves in winter, will be of little use for half the year.
28. He also says noise from the site frequently disturbs him outside the permitted hours. He says he has complained about this on various occasions without success.
29. He also says the village is often covered by a fine dust. He says he does not know what it is and is concerned of the potential impact on villagers’ health.

Complaints

30. The Council’s Environmental Health department received a complaint about noise from the site in 2017. The Council investigated and the company agreed to change various processes.
31. The Council then monitored noise from the site in early 2018 and found that some of the noise emanating from the site did amount to a statutory nuisance. The Council issued an abatement notice against the company in May 2018.
32. The Council says that the company did not contest the notice. It continued to meet with Environmental Health, local residents and the parish council. IT agreed to change various systems and processes but asked for several months to do so The Council monitored again and found that noise had reduced and that it would not, therefore, take any formal action but explained that the notice remained in place and would be reviewed as necessary.
33. The Council says that, since then, the company has carried out further work to reduce noise further.
34. Mr C and several other villagers complained about noise at the site in 2020. Several councillors also raised the matter on behalf of their constituents.
35. Mr and Mrs C say the noise was unbearable and the firm allowed working on bank holidays and dust spread over the village frequently. He says that, on one bank holiday in spring 2020, he went to the site to complain to the company. A foreman told him the company management had told him it was alright to work Saturday hours. In fact, Mr C says, they worked all day.
36. The Council has received several complaints about noise nuisance at the site. Some, but not all of these came from Mr and Mrs C. The Council has asked those complaining to keep noise diaries. It has also continued to discuss the matter with the company.
37. The Council has issued a noise abatement notice against the company and this remains in force. It has also engaged informally with the company and says that the company has made improvements. Mrs C has told the Council that she thinks matters have become worse.
38. Mr C gave a completed diary sheet to the Council in July 2020. The Council installed noise recording equipment at Mr and Mrs C’s house. This was at their property for three weeks in July and August 2020. This was found to be faulty and therefore produced no useable results.
39. Noise monitoring equipment was again left at Mr and Mrs C’s house in September 2020 for two weeks. The Council says that ‘some noise [was] audible but not that persistent or as noisy and definitely not as bad as it had been when monitored in the past (before the Notice was served)’.
40. Mr C complained to his MP in February 2021. The Council responded at length to the MP. The Council said the following in response to Mr C’s points:
1. The planning condition covering the site did not prevent any working at the site outside of normal working hours but only the operation of machinery and ‘processes’ or the taking in or sending out of deliveries. The Council accepted there may have been ‘one off’ breaches ‘but this does not automatically warrant the Council taking prosecution action’.
2. The landscaping scheme was not intended primarily as a sound buffer but as a ‘ensure that the proposed development does not harm the character and appearance of the area’.
3. The Council had investigated allegations of noise made by Mr C and others and, while it was accepted that some noise was coming from the site, ‘it was not persistent or loud enough to be causing a statutory noise nuisance’.
41. Mr C then complained to the Council and, unsatisfied with the response he received, came to the Ombudsman.

Was there fault causing injustice?

Failure to require company to rebuild the plant

42. The grant of planning permission took place in 2017. I cannot, therefore, look into this matter.

Retrospective grant of planning permission

43. Councils can invite those who have built a building without planning permission, or who have built a structure which is not in accord with their approved plans to apply for retrospective planning permission. Whether this is appropriate in the circumstances is a matter of professional judgment and the Ombudsman will not generally intervene in such a decision. In any event, these decisions took place in 2017 and so I cannot look into them.

Slow growing plants

44. The grant of planning permission required the company to create a scheme of planting and to have it approved by the Council within a specified period. It did so. The Council approved the plan. The Council says it considers that the planting scheme is proportionate to the scale of the development. The Council’s decision is a professional one that had to bear in mind many factors including an environmental brief to plant native that is appropriate to the character of the area. The Council says its tree officer has recently checked the scheme and various plants have been replaced. I do not find fault.

Failure to consider request for soundproof/coniferous boundary

45. As stated above, the Council is required to bear in mind ecological factors and to plant mainly native species. It says it has approved the planting of some holly bushes along one side of the site but is also planting other native tree and bush species. The Council disagrees with Mr C’s claim that the boundary will take 20 years to mature though it accepts that it will take some time. It also says that it is continuing to inspect the boundary and is ensuring that plants that have not taken are replaced. I do not find fault.

Failure to take enforcement action to prevent noise nuisance

46. The file shows that the Council has investigated Mr C’s and other villagers’ complaints and has taken steps with the Council to reduce the noise. In the opinion of environmental health officers, the noise does not amount to a nuisance. I do not find fault.

Failure to investigate/prevent dust over village

47. The Council accepts that the company’s activities are of a type that does produce some dust. It says that it has taken action and that the action it has taken is proportionate. It says that it has asked Mr C to keep diary sheets and he has recorded dust on one occasion but he has never shown them evidence of dust.
48. The Council says it visited the company to check its permit-worthiness in February 2020 and spoke to Mr C about the matter on several occasions in 2020, although COVID interfered with these activities. It says it explained the Environmental Permitting system and asked him to keep diary sheets. The Council says it asked villagers to provide evidence of dust but none provided any. Officers checked for dust when they visited the village but none was seen.
49. The Council also says the company has recently built a new facility which will reduce the opportunity for dust to escape from the site at all as all dust producing activities will now take place inside. It says that, if dust was coming from the site, then cars and other objects close to the perimeter would be expected to be heavily coated. This has not been the case.
50. Mr C continued to complain about dust. The Council has asked him to keep a diary recording incidents when dust does escape. So far, the Council says, it has not witnessed dust.

Conclusion

51. While I have no doubt that Mr C is genuinely disturbed by noise and dust, I cannot find fault on that basis. I can only find fault if the Council has done something wrong and, in my view, it has investigated and taken proportionate enforcement action. Mr C can continue to keep diaries of disturbance which he can present to the Council and, in future, enforcement action may be taken.
52. However, since 2018, the Council has not found that the noise and dust that emanate from the site amount to a statutory nuisance. This is a matter of professional judgment made by professional environmental health officers who have, unlike me, witnessed the alleged nuisance personally. I am not, therefore, in a position to question their decisions.

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Final decision

53. I have decided that the Council was not at fault. I have closed my investigation.

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Parts of the complaint that I did not investigate

54. I did not look at events before 2019 other than as background.

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Investigator's decision on behalf of the Ombudsman