Summary: Mr D complained about the Council’s activities within its crematorium’s yard. He said it had failed to obtain relevant planning permissions and caused a noise disturbance to its neighbours. We found the Council failed to ensure its activities within the yard did not cause neighbours a noise disturbance, and it failed to assess if it caused a statutory nuisance. We cannot criticise the merits of the Council’s decision that no material change or intensification of use took place, only a court can do so. The Council should apologise to Mr D, make payment to acknowledge the distress it caused, and assess whether a statutory noise nuisance exists.

The complaint

1. The complainant, whom I shall refer to as Mr D, complained about the Council’s use of its crematorium’s yard as a depot; a place it used to store and operate vehicles, machinery, and equipment. He said it had failed to:
• consider relevant planning policy and seek planning permission for its works and intensified use within the yard;
• properly assess the impact of the depot and take enough action to stop or reduce the activities within the yard; and
• properly consider and respond to his concerns causing further delays.

2. As a result, Mr D said he had experienced distress, inconvenience, and nuisance due to the noise from the yard. He also said he had time and trouble to bring his concerns to the Council’s attention and lost trust in its ability to resolve his concerns.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. If we are satisfied with an organisation’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

7. We considered written information from Mr D and the Council’s response to his complaint. We discussed the complaint with Mr D and made enquiries of the Council. We considered its response to our enquiries. We considered relevant legislation, guidance, and case law relevant to this case.
8. Mr D 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

The law relevant to this complaint

Planning permissions and changes of use

9. Planning permission is required for the development of land unless it is allowed under permitted development rights.
10. In circumstances when there within a site has been a material change of use, or a material intensification of use, planning permission would be required.
11. Case law has established principles which a local authority needs to consider to determine if the activities within a site amounts to a material change or intensification in the character of use. This includes considering:
• the type of activities taking place compared with the lawful use established for the site;
• the number of activities taking place at the site, although in itself this is unlikely to amount to a material change in use; and
• the impact on visual amenity of the immediate area and landscape, traffic generated, dust and levels of disturbance.
12. The Town and Country Planning Act 1990 gives local authorities power to take enforcement action if they find planning rules have been breached. An authority should not take enforcement action just because there has been a breach of planning control. Government guidance says: “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 July 2018, paragraph 58)

Noise nuisance

13. A local environmental health authority must investigate complaints about noise that could be a statutory nuisance as set out in the Environmental Protection Act 1990 (the Act). The noise complained about may originate from various sources. For example, loud music, barking dogs, noisy neighbours or noise from industry, trade, or business.
14. For a noise to be a ‘statutory nuisance’ it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or
• injure health or be likely to injure health.
15. Section 82 of the Act allows any person impacted by a statutory nuisance to apply to a magistrate’s court for an abatement notice. This includes circumstances where a local authority is alleged to have caused a statutory nuisance. If the court agrees, it can ask a local authority to reduce the nuisance or prohibit the recurrence of it.

Protecting residential amenity

16. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
17. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
18. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards. Planning conditions are often used to prevent adverse impact on neighbouring amenities from development or land uses, including disturbance from excessive noise. The bar for noise protection to protect residential amenity using planning controls may be set lower than that required for a statutory nuisance and may be used to more extensive attenuation measures.
19. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.

Limits on local authority powers

20. A local authority cannot take planning enforcement action against itself. However, we would expect the Council to assess its own proposed developments and land uses in the same way and with the same vigour as it would for any other planning applicant.
21. Councils should ensure their own developments and land uses do not result in what would otherwise be a statutory nuisance or breach of planning control.

Background information

22. Mr D’s home is next to the Council’s crematorium and cemetery. He moved into his property 20 years ago. At the time, the yard at the rear of the crematorium had some hard surfacing and storage sheds. The side and rear of the yard next to Mr D’s home was mainly covered with grass and trees. A fence separated the yard from Mr D’s garden and trees were planted on the crematorium’s boundary.
23. The Council has since carried out works to the crematorium and its garden. The works includes temporary structures, an extension to the building and hard surfacing and removal of trees and vegetation. The hard surfacing now extends throughout the rear of the crematorium yard, but its boundary remains enclosed by trees and fences.
24. The Council said it moved its Street Cleaning Team to operate from the yard in approximately 2017. The yard now holds equipment, machinery, and vehicles belonging to the Council’s Street Cleaning Team and its crematorium, some of which may not be used for the purposes of the running of the crematorium and cemetery.
25. In 2019 the Council approved a planning application for a garage within its crematorium yard, which would act as a mess area for members of its ground staff and a place to store their tools. The application and Officer’s report said:
• there would be no harm to residential amenity, and it would not result in an increased noise or disturbance to neighbours;
• there was no existing nor proposed spaces for light or heavy vehicles within the crematorium’s area; and
• there were no identified industrial or commercial process and machinery identified within the yard.

What happened

26. Mr D said he had no concerns about the crematorium until 2019, as the area was relatively quiet. However, he said since then, the noise generated by staff, equipment, machinery, and vehicles within the yard has significantly increased and it has caused him significant disturbance.
27. He said he first became aware of the extent of the works that had taken place within the yard when some vegetation was removed on the boundary towards his garden.

Mr D’s complaints

28. In 2020 Mr D complained to the crematorium management about the works which had taken place within the crematorium yard and the noise generated by its activities. He received a response to his concerns and had discussions with a manager. However, this did not reduce the noise or resolve his concerns.
29. Mr D asked the crematorium management to escalate his complaint. He asked his local councillor to raise his concerns with the Council. Mr D said the Council had:
• failed to follow the proper planning process for some of the works within the crematorium area. This meant there had been no consultation or assessment for the impact on neighbours and the nearby conservation area;
• wrongly allowed a material change of use of the crematorium yard without any planning approval or assessments. He said the reallocation of its Street Cleaning Team and the increased activities within the yard amounted to a material change of use by intensification as set out in case law; (Childs case) R (on the application of Childs) v First Secretary of State 18 October 2005
• failed to take any enforcement action when the development and activities started, and when he brought his concerns to the Council’s attention; and
• failed to assess the impact the works and activities within the yard had on him and other neighbours, in particular, in relation to its continuous and excessive noise.
30. As a result, Mr D said since 2019 he and his wife had experienced a noise disturbance on Mondays to Saturdays between 07.00-16.30, which affected their sleep and enjoyment of their home and garden.

The noise assessment

31. In response to Mr D’s complaint and the local councillor’s representations on his behalf, the Council arranged for a noise consultant to complete a noise assessment of the activities within the crematorium yard. This was an environmental noise assessment under British Standard 4142:2014 which is used to assess and rate noise of an industrial and commercial nature. The Standard cannot be used to assess the noise impact within a building, or noise from people.
32. The noise assessment report said the normal background noise on the yard boundary was 40db. It advised any noise 5dB higher would be considered an adverse impact, and 10dB or higher would have a significantly adverse impact on Mr D’s amenity.
33. The report found the noise levels generated by commercial and industrial activities, which included vehicles, diesel- and petrol-powered equipment, a mechanical digger, and loud scraping and banging, were:
• on average between 45-50dB, so between 5db and 10db higher than background noise; and
• there were several occasions each day the noise reached 60-80dB at short intervals.
34. The report found the noise had an adverse impact on Mr D and his neighbours between 07.00-16.30 on Mondays to Saturdays, including a significant adverse impact at short intervals several times each day. It said ‘Some recommendations have been made that would help to reduce some of the most significant contributors to the rating level; however, further modelling may be required to determine the level of attenuation, which will require a full equipment schedule and the manufacture’s sound power level data.
35. The recommendations were:
• installing an acoustic fence that exceed 2.5 metres in height;
• reduce the use and sound of vehicle reverse tonal alarms to a minimum, where this was not possible, to replace these with white noise alarms; and
• only operating petrol- or diesel-powered equipment, and a generator, in a covered pit.

The Council’s response and findings

36. The Council considered complaints from Mr D and other neighbours, as well as the councillor’s representations. It told Mr D it would submit a planning application for an acoustic fence as recommended in the noise report and remove a woodchipper. However, it had found:
• (Planning) the yard was not a depot but there had been works and developments within the crematorium area. Some of which had been approved through the planning process and some other works were likely to have been permitted development;
• (Change of use) there had been no material change of use within the yard. It said its crematorium staff had used the yard area since the 1990s. So, equipment had been used within the yard since. It also said its Street Cleaning Team had worked from the yard since late 2017, but also provided services to the cemetery and crematorium areas;
• (Intensification of use) there had been no significant intensification of the use within the yard. It had sought legal advice from an external solicitor who agreed with its view the changes were considered de minimis (‘immaterial’);
• (Planning enforcement) no breaches of planning control had taken place, so no enforcement action was deemed necessary; and
• (Noise) the noise assessment found its activities within the yard generated noise, but this was not excessive. However, it was willing to work on reducing the noise and had taken some steps to reduce this.
37. Mr D told the Council he did not agree with its findings, and he did not believe an acoustic fence and minor actions would reduce the noise generated within the crematorium yard. He also said its finding on the change of use and intensification was wrong. This was because:
• it had provided the solicitor with incorrect information about the number of vehicles and machinery operating in or from the crematorium yard. Mr D alleged the advice was therefore based on incorrect circumstances;
• the Council’s solicitor had incorrectly interpreted the principles set out in the Childs case. This was because they wrongly excluded the relevant considerations for the appearance of the site, including the activities taking place and the amount of traffic generated from the crematorium yard; and
• the 2019 planning consent for the garage within the yard showed there was no existing nor proposed spaces for light or heavy vehicles within the crematorium yard. However, the Council had agreed to store and operate five vehicles, and several other motor operated machineries within and from the yard.
38. In its correspondence with Mr D, the Council acknowledged the legal advice it had received misquoted the Childs case. It explained this was a typographical error and it, and the solicitor, had considered the impact of the activities within the site in line with the Childs case. It also shared the information it provided the solicitor about the number of vehicles, machinery and equipment stored and operated within the crematorium yard with Mr D.
39. In May 2021 the Council had reconsidered its view and gave Mr D its final response. It said it had not changed its view and told him he could bring his concerns to the Ombudsman.

The Planning Committee and the acoustic fence

40. The Council’s Planning Committee considered its application for the acoustic fence in March 2021.
41. Mr D and other affected neighbours raised their concerns about the Council’s works and activities within the crematorium yard to the Planning Committee. They also raised objections about the acoustic fence, as they did not believe it would do enough to reduce the noise generated within the yard.
42. The Planning Committee approved the planning application for the acoustic fence. It found it could not consider Mr D’s concerns about the works that had taken place, nor the activities within the crematorium yard. This was because its role was to consider the planning application for the acoustic fence only.
43. However, the Planning Committee members raised concerns about the works and activities which had and were taking place within the yard. They also questioned officers whether it would be a better solution to move all activities unrelated to the Crematorium to a different site. As part of the discussion, it was agreed to ask its councillor for its City Services to consider the matter further.
44. The Council installed the acoustic fence in early 2022. It said it had also previously:
• made a slight change in the operating hours within the yard;
• removed a woodchipper;
• asked its staff not to use vehicle reverse tonal alarms and it would replace the alarms on new vehicles; and
• asked its staff to stop using some equipment in the yard.
45. Following, the installation of the acoustic fence, Mr D shared recordings of the noise from the crematorium yard with the Ombudsman. Mr D believes the fence has failed to reduce the noise to any notable extent.

Analysis and findings

Planning matters before 2019

46. Mr D’s complaint related to planning matters which took place since 2000. We have time limits on our powers to investigate and these parts of his complaint are late. We found it would not be appropriate to exercise our discretion to consider matters before late 2019, and our reasons are as follows.
47. We acknowledge Mr D was unaware of the extent of the works and development which had taken place within the crematorium yard because it was not visible to him due to the trees, vegetation and the fence obstructing the view. However, he claims no personal injustice from the yard until late 2019 when he said the noise intensified. He has since continued to raise his concerns to the Crematorium and the Council, we will therefore consider Mr D’s complaint from late 2019.

The use of the land after 2019

48. Mr D and the Council disagree about whether the activities within the crematorium yard:
• are within the existing lawful use; or
• amounts to a change of use, or an intensification of use.
49. The existing lawful use of the site has for many years been that of a cemetery and a crematorium, including the related activities to such services. It is clear the processes to deliver the functions of the these have changed over the years, which has included a mechanisation of the processes, some of which may have happened more recently.
50. Whether the activities within the yard have materially changed or intensified is a matter of fact and degree. It is not for the Ombudsman to decide whether this has happened, such decisions are for the local planning authority, and ultimately the courts to decide. I can therefore only consider the process the Council followed to reach its decision.
51. The evidence shows the Council considered Mr D’s concerns and visited the site. It agreed there has been some increase in the activities taking place within the crematorium yard and the machinery used to deliver the business functions of the crematorium and its cemetery. It also agreed a part of its street cleaning team was operating from the yard and supported maintaining the crematorium and cemetery. However, it did not find these amounted to a material change in the character of use, nor a material intensification of use within the crematorium yard.
52. The Council sought legal advice to confirm its view, and the solicitor agreed with its view. I acknowledge Mr D’s concerns the information the Council provided to the solicitor referred to two vehicles operating within the yard, but it has later agreed this is up to five vehicles. I cannot say if this would have had an impact on the solicitor’s view, however, the Council has since reconsidered the matter and it did not change its view in its final response to Mr D. As this was a decision the Council was entitled to make, I cannot therefore criticise the merits of its decision.
53. I understand Mr D disagrees with the Council’s decision, however only a court can consider whether the activities within the yard amounts to a material change or intensification of use.

Was there a noise disturbance to Mr D?

54. Following Mr D’s complaints to the crematorium management and the Council in 2020, the Council arranged for the noise assessment under BS4142:2014. This found noise levels were significantly adverse to Mr D and other neighbours at short intervals several times each day. The most significant noise was from vehicles, reverse alarms, diesel- and petrol-powered equipment, a mechanical digger, handsaws, and loud scraping and banging. It also found other noise caused a continuous adverse impact on Mr D throughout the working day.
55. In autumn 2020, the Council considered the noise report and its recommendations. It agreed the activities at its crematorium were causing Mr D some adverse noise. It took some action to limit the noise disturbance Mr D was experiencing, which included a slight reduction in the operating hours, guidance to its staff on use of equipment and reverse alarms, and it sought planning permission for the acoustic fence.
56. I therefore found the Council was at fault for failing to ensure its activities within the crematorium yard did not cause a noise disturbance to its neighbours. The Council agreed Mr D experienced a noise disturbance as set out in the noise report from late 2019, until the Council started to take action to reduce the noise in late 2020.
57. I acknowledge Mr D believes the steps the Council took was not enough. However, the Council was entitled to take the steps it deemed appropriate to reduce the noise disturbance it caused. I cannot therefore criticise the decisions it made in response to this noise assessment.

Did the Council cause a statutory noise nuisance?

58. Mr D complained to the Council its crematorium activities and staff were causing a noise nuisance. He believed this to be a statutory nuisance.
59. While the Council did complete a noise assessment under BS4142:2014, this was not the appropriate assessment to determine if a statutory nuisance existed. The assessment specifically precluded assessing the impact on Mr D in his home, and the Council has since confirmed it has not completed a statutory noise assessment.
60. I found it should have assessed if its crematorium caused Mr D a statutory noise nuisance as set out in the Environmental Protection Act 1990. Even though it cannot take enforcement action against itself, I would expect it to apply to same test to itself as it would to any other noise complaint.
61. It was therefore at fault for its failure to do so when Mr D complained to it in 2020, and it has continued to be at fault as such assessment has still not taken place. I am satisfied Mr D experienced further distress due to the uncertainty this caused.
62. I cannot say if a statutory noise nuisance occurred at the time, and it is not possible to assess the noise in 2020 now. However, the Council should assess whether the crematorium currently causes Mr D a statutory noise nuisance now. If it finds:
• A statutory noise nuisance exists, it is reasonable to assume this has occurred since Mr D first made his complaint. The Council should use the best practicable means to remove or mitigate the impact of the nuisance and offer an appropriate remedy for the injustice this caused him since his complaint in 2020.
• There is noise but this does not amount to a statutory nuisance, then it is not required to do anything further. Although, it can decide to take steps to reduce any current adverse noise it may find.
63. If Mr D disagrees with the outcome of the Council’s statutory noise assessment, or how it was conducted, the appropriate next step would be to bring his concerns to the attention of a court, which can decide if a statutory noise nuisance is occurring, and if so, issue an abatement notice.

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Agreed action

64. To remedy the injustice the Council caused to Mr D, the Council should, within one month of the final decision:
1. apologise in writing to Mr D, and pay him £500 for the distress and uncertainty he experienced as a result of the Council’s failure to ensure its activities in its crematorium yard did not cause him a statutory noise nuisance, or an unacceptable adverse impact; and
2. pay Mr D a further £300 to acknowledge the significant time and trouble he faced to bringing his concerns to the crematorium management, Council’s and the Ombudsman’s attention.
65. Within three months of the final decision the Council should also:
1.  
2.  
3. remind its staff, and crematorium management, to consider the impact intensification of use within a council site may have on neighbours, and whether noise or other assessments should be completed before the changes takes place; and
4. assess whether its crematorium is causing Mr D a statutory noise nuisance, or arrange for such assessment to be completed, and notify Mr D of the outcome of its findings. If a statutory nuisance exists it should use the best practicable means to remove or mitigate the impact and propose a suitable remedy for the distress this caused Mr D since 2019.

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Final decision

66. I have completed my investigation with a finding the Council failed to ensure activities within its crematorium yard did not cause a noise disturbance to its neighbours, and to assess whether it caused Mr D a statutory noise nuisance. Other parts of Mr D’s complaint were either late or I could not criticise the merits of the Council’s decision.

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Investigator's decision on behalf of the Ombudsman