Summary: Mr X complained about the way the Council dealt with a planning matter and how it considered noise and other anti-social behaviour issues. We found the Council was not at fault.

The complaint

1. Mr X complains the Council failed to properly consider the impact that his neighbour’s planning application would have on his property. He also complained that the application should have been decided by a full planning committee and that the Council failed to take action in respect of planning breaches.
2. Mr X complains the Council failed to properly investigate noise nuisance and anti‑social behaviour that he reported. He stated the Council did not make visits or install noise monitoring equipment. Mr X complained the Community Trigger should have been activated due to the issues he had raised.
3. Mr X considered the Council failed to protect his Human Rights. The Council also failed to communicate with him properly about the issues he raised. Mr X explained that the issues had led to a worsening of his mental health and he complained of a loss of amenity from the planning issues he reported.

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The Ombudsman’s role and powers

4. 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)
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 Mr X’s complaint and the information he provided. I considered information available on the planning website and I asked the Council for information. I considered its response to the complaint.
7. Mr X 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

Legislation and Policy Background

Planning Decisions at South Holland District Council

8. The Council’s constitution sets out rules for when planning decisions will be made by committee and when they should be delegated decisions by planning officers. In May 2020 the Council decided these rules should be changed in response to challenges posed by the COVID-19 pandemic.
9. The constitution was amended to state that all planning applications would be delegated to the Executive Director for Planning, the Assistant Director, Service Manager, Development Manager and the Principal Planning Officer.
10. The new rules stated that officers needed to refer a planning decision to a panel of councillors (‘The Chairman’s Panel’) in a specified list of circumstances. The panel provided a steer to officers to decide if an application needed to be considered by officers or should be referred to the planning committee.

National Planning Policy Framework (NPPF)

11. Paragraph 58 of the NPPF states that effective enforcement is important to maintain public confidence in the planning system. However, enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.

Building Act 1984

12. Section 77 of the Building Act gives a council the power to act if it considers that a building’s condition or loads upon the building are such as to be dangerous. In such cases, councils have the power to order the owner to carry out works to alleviate the danger. If a building owner disregards such an order, councils may carry out the work they consider to be appropriate and they may recover the reasonable cost of such work from the owner.

Noise & Other Statutory Nuisance

13. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typically, nuisances may be related to noise, dust, odour or artificial light.
14. The law does not define what level of nuisance is considered a statutory nuisance but it says a statutory nuisance, must unreasonably and substantially interfere with the use or enjoyment of a home or other premises, and/or cause (or be likely to cause) injury to health.
15. In May 2020, in response to the COVID-19 pandemic, the Council agreed to amend its usual processes for dealing with complaints about nuisances. The Council decided to suspend face-to-face visits. This meant that it could not install noise monitoring equipment. Instead, the Council signposted complainants to use a noise application for smart phones. The Council also continued to issue and consider diary sheets and continued to write to alleged perpetrators of noise or other nuisances. It also maintained contacts and referred anti-social behaviour issues to other organisations such as the police and housing teams. In August 2020 the Council relaxed the changes in policy and allowed limited visits to take place. In July 2021, the COVID restrictions were relaxed and visits were possible.

Community Trigger Legislation

16. The Anti-Social Behaviour, Crime and Policing Act 2014 introduced a mechanism to review the handling of complaints of anti-social behaviour (ASB). This is commonly known as the ‘Community Trigger’ process. When a person requests a review, relevant bodies (which may include the council, police and others) should decide whether the local threshold has been met.
17. If the threshold has been met, the relevant bodies should undertake the review. They should share information, consider what action has already been taken, decide whether more should be done, and then inform the complainant of the outcome. If they decide to take more action, they should create an action plan. It is for relevant local bodies to agree their review threshold, but the ASB statutory guidance says this should be, at a maximum, that a complainant has made three reports of ASB within six months.
18. We can only consider councils’ actions in an ASB case review. Any contribution made by other relevant bodies, such as the police, is not in our jurisdiction.

What Happened – Planning Application

19. In May 2020 Mr X’s neighbour suffered a fire at their property which caused extensive damage.
20. The Council received an application for development from Mr X’s neighbour in late 2020. The application was for a rear extension and alterations to the existing property and a garden building.
21. The case officer’s report considered the principle of the proposed development, its design and appearance, the impact on neighbours and other issues.
22. The case officer found the principle of the development was in accordance with planning policy. He noted the proposed extension was mainly two-storey but he found it was acceptable in terms of height and scale. He decided, subject to conditions, the proposed extension would not harm the street scene and the design was acceptable.
23. The case officer’s report noted the size of the extension and the relationship between the application property and Mr X’s property. The case officer stated the scale of the extension had been reduced from that originally proposed. This was following comments by officers and to limit its impact. The officer considered the impact on light, and how rooms in Mr X’s property would be affected. The officer decided the new extension would not block light to such a degree that it justified the refusal of the application.
24. The case officer explained his view that the extension would not materially harm the privacy of neighbours in terms of privacy, overlooking or overshadowing. Highways and Flood Risk issues were also considered.
25. The report noted an objection had been received. The officer noted anti-social behaviour issues, problems with work at unsocial hours, damage during construction and party wall issues. He also noted concerns about how works were being carried out up to now. The officer noted some of these issues were not grounds for refusing the application.
26. The officer report stated the Council did not consider the proposed approval of planning application affected the Human Rights of neighbours in terms of their right to private family life. The application was decided in March 2021. The case officer referred the application to The Chairman’s Panel who accepted that a delegated officer decision could be made.

Planning Enforcement

27. Mr X reported a number of breaches of planning control by his neighbour. He noted that his neighbour was living in a caravan in the garden of the property and a lean-to extension had been built, attached to the caravan. An officer considered the report and visited the site. Mr X’s neighbours were living in the caravan temporarily while work was being carried out to repair and extend their property. The officer advised them that the caravan did not need permission, but the lean-to technically did. They suggested it could be regularised by adding the lean-to to the planning application the Council was considering at that time. The applicants chose not to add the lean-to when submitting new plans.
28. As no plans were submitted, officers had to decide if there were grounds to take formal enforcement action. The Council considered it highly likely that permission would be given for the lean-to, if it was applied for. They also took account of its temporary nature. As a result, they determined it was not expedient to take action. They stated the situation was monitored to ensure that it did not gain immunity at a later stage.
29. In January 2021 the Council considered a report from Mr X that his neighbour had erected fencing without planning permission. The Council agreed a short section of the fence needed permission because it was within two metres of the highway. Mr X’s neighbour stated the fence would be included in revised plans, in the same way as the lean-to noted above. When the fence was not included, the Council considered it should not take formal action. While this was a technical breach of planning control, the Council explained the area that needed permission was only 40cm long and it did not affect the highway as it was alongside an existing hedge. It also found a similar fencing issue Mr X raised in August 2021 was not such that it warranted enforcement action.
30. In summer 2021 the Council considered whether it should take planning enforcement action when a condition was not met. Mr X’s neighbour’s planning permission required that he erected a boundary fence by June 2021. However, as there was an ongoing boundary dispute the Council monitored the situation but did not take formal action. It noted that strict enforcement may have led to a fence being erected on land which Mr X’s neighbour did not own.

Noise and Nuisances

31. During 2020, Mr X made a number of reports about problems with his neighbour’s behaviour and about disturbance and nuisances he was suffering because of works his neighbour was doing.
32. Mr X reported noise, odour and dust as issues that were affecting him and his family. I understand Mr X first made reports to the Council about this during the summer of 2020. He also complained to the police about various issues with his neighbour.
33. On 3 August the Council liaised with the police and its anti-social behaviour team and it agreed with Mr X that he would complete diary sheets for two weeks. Mr X made several further reports of noise from construction works during August and early September. Mr X also made reports to the police.
34. On 15 September an environmental health officer carried out a joint visit to Mr X’s neighbour with the police. At the visit they found no detectable odours and they reminded Mr X’s neighbour that construction work should be carried out within normal working hours. The Council noted that the construction work necessary to repair the fire damage and re-build Mr X’s neighbour’s property was extensive, so some noise and disturbance was inevitable.
35. I understand Mr X did not return diary sheets to the environmental health department but he did complete diary sheets in respect of anti-social behaviour for the police/the anti-social behaviour team.
36. In September 2020 Mr X complained that the Council’s response to his noise and other complaints had been inadequate. Mr X stated the environmental health department had not called back when he left messages and had done little to resolve the issues that he had been reporting since June 2020.
37. The Council acknowledged that Mr X may not have been contacted by an environmental health officer (EHO), but it said EHOs had been liaising with the police and anti-social behaviour team to ensure the most appropriate person responded. The Council stated it had not been able to visit or install noise monitoring equipment, due to the COVID-19 pandemic, but its policy on visits was under review and limited visits were now occurring. The Council referred to its visit on 15 September and the outcome of this.
38. The Council confirmed it had written to Mr X’s neighbour and Mr X now had the noise application to send recordings for consideration. The Council reiterated that some noise from construction works would be expected.
39. I understand the Council sent a further complaint response to Mr X on 30 October. It has not provided us with a copy of this.
40. However, in a letter to Mr X in November 2020 the Council reiterated its position. It acknowledged that the works next door to Mr X would generate noise, however, when the works were necessary, taking place during normal working hours and the noise was reasonable for the type of work being done, the Council could not prove an actionable nuisance.
41. When COVID-19 restrictions were relaxed, the Council installed noise monitoring equipment to Mr X’s property. This was for around 10 days in August 2021. On 20 September, the Council wrote to Mr X to explain its findings. It explained that Officers had listened to the recordings from noise monitoring and found that there was no statutory nuisance.
42. The Council sent us a summary of around 30 noise reports Mr X submitted using the noise application between 14 October and 6 December 2020 and around 120 that were sent between 17 January 2021 and 5 August 2021. The Council provided details of its consideration of these. The majority of the recordings were of construction noise during the day. The Council considered the noise was not such that it constituted a statutory nuisance. There were a number of instances of work on Sundays. The Council wrote to Mr X’s neighbour about this in December 2020 and January 2021 asking him to schedule more noisy works during working hours and only to carry out quiet activities on Sundays.
43. The Council commented that although officers noted the noises being reported by Mr X they were unable to establish the existence of noise amounting to a Statutory Nuisance. The alleged source of the noise frequently changed, sometimes it was loud music from the radio, but the majority of time it was noise from the building works. The Council explained to Mr X that if the noise from the building works was not excessive for the activity being carried out and it was happening within normal working hours it was unlikely to amount to an actionable nuisance from an Environmental Protection perspective.

Anti-Social Behaviour

44. In addition to Mr X’s nuisance reports, he also complained of Anti-Social Behaviour by his neighbour. This included throwing dog faeces, verbal threats and physical attacks on his property. Due to the nature of the reported behaviour the Council alerted the Police who made contact with Mr X.
45. When Mr X sent diary sheets reporting crime or anti-social behaviour, these reports were sent to the Police who led on the issue.
46. In January 2021 the Council’s dog warden visited the area and erected ‘no dog fouling’ signs, they also removed any dog foul in the area. They returned in February 2021 after further reports.
47. In March 2021 the Council considered reports of fires by his neighbour. The Council considered video evidence from Mr X. The Council stated, as for noise issues, it had to consider the degree of noise, the time of day and the duration to determine if the issue amounted to a statutory nuisance. The Council told Mr X that fires were not illegal. I understand that officers determined the fires were not such as to amount to a statutory nuisance so formal action was not justified.

Anti-Social Behaviour - Community Trigger

48. Mr X made a request for a Community Trigger Review in June 2021. The threshold was met for a review, which took place in July. The Council sent a joint response with the Police. It set out an action plan to obtain and review any outstanding material from Mr X and to establish if that warranted formal action under community protection laws. It also prompted the installation of noise monitoring equipment in August 2021 (described in the paragraphs above). The Council/Police also re-offered mediation, victim support and a good neighbourhood agreement.

Building Control

49. In addition to concerns about noise and anti-social behaviour, Mr X expressed concerns about safety because the building next door was damaged by fire. He stated, for example that tiles had fallen from the roof on occasions. Mr X provided us with a surveyor’s report from November 2021. It stated a surveyor had carried out an inspection in October 2021. The report concerned Party Wall issues. Party Wall issues are civil matters between neighbours. However, we have noted what the document stated regarding safety aspects and points Mr X made about the actions of the Council’s building control function.
50. In terms of safety, the report stated, broadly, that there was a risk of slate tiles being blown from Mr X’s neighbour’s roof. It suggested measures were taken to limit this risk.
51. The Council stated building control officers had investigated Mr X’s claims and visited the site. This included use of the Dangerous Structures Out of Hours team. It stated it had been difficult to determine where slates had fallen from. The Council stated that to take formal action, Building Control officers would have to apply to the magistrates’ court to make an order to remove the danger. This was not pursued as the building owner was in the process of removing tiles and re-covering the roof as part of works to renovate the property.
52. The Ombudsman is unable to consider the impact that Mr X’s neighbour has had on Mr X’s property as these are civil matters between neighbours. Separately to his complaint I understand Mr X has taken court action against his neighbour concerning party wall issues.

Mr X’s complaint

53. I understand that Mr X complained on 11 November 2020. The Council responded to the complaint on 15 June 2021. The Council responded further to the complaint in July 2021 when Mr X requested it was escalated.
54. I have not repeated the content of the complaints responses in this statement as they largely re-iterate the actions it has taken in response to Mr X’s concerns as set out above.

Was the Council at fault?

55. I found there was no fault in the way the Council decided Mr X’s neighbour’s planning application. There is evidence that relevant material planning considerations were taken into account, including the impact on neighbours. The application was decided by officers under delegated powers rather than by committee. There was no fault in this. Officers referred the application to a panel of councillors as part of the decision-making process. This is in accordance with the Council’s constitution.
56. Mr X made several enforcement reports about development on his neighbour’s property. The Council recognised the issues raised were breaches of planning control and initially asked Mr X’s neighbour to submit amended plans (or include the issues in revised plans). It is normal practice for a Council to seek an application or plans to be submitted so they can consider the issues formally. If the works are acceptable they can be approved to regularise the situation. If they are not, further action can be considered.
57. It will generally be regarded as unreasonable for the Council to issue an enforcement notice solely to remedy the absence of a valid planning permission on principle. Rather, the NPPF requires them to strike a balance between acting to uphold the integrity of the planning system while also acting proportionately. I found no fault in the Council’s decisions not to take planning enforcement action here. These were judgements that officers were entitled to make.
58. I found no fault in the way the Council assessed potential for Mr X’s property to be a dangerous building. Building Control officers visited the site to consider the situation. The Council would ultimately have to take the matter to court to pursue a dangerous building formally. In this case the officers noted Mr X’s neighbour was in the process of rebuilding his home following a fire. They gave advice to Mr X’s neighbour. Damage to Mr X’s property is a civil matter rather than something for building control, and I understand he pursued a civil claim against his neighbour through the courts.
59. The law requires councils to take reasonable steps to investigate noise or other nuisances. Councils often ask members of the public to complete diary sheets, officers generally then consider visiting to witness nuisances and/or install noise monitoring equipment if they need to take the matter further. During 2020 due to the COVID-19 pandemic, the Council suspended visits, so neither was possible in the early part of the year. This was a reasonable action to take at that time. The Council did visit later and installed noise monitoring equipment. It assessed these noise recordings and others made by Mr X via an application on a mobile phone. There was no fault in the process the Council followed or steps it took to investigate.
60. When the Council assessed the noise recordings it did not consider the noise constituted a Statutory Nuisance. The law does not define a level for Statutory Nuisances. Rather, it relies on the judgement of council officers. I found no fault in the way the Council assessed the recordings in Mr X’s case, so I have no grounds to call into question the Council’s decision that an Abatement Notice should not be issued. I appreciate Mr X may disagree.
61. The Council largely passed Mr X’s anti-social behaviour reports to the Police. I understand the Police led on these issues and Mr X reported actions that could potentially be crimes. I note the matter was subject to a Community Trigger Review. This prompted an action plan which involved a further review of noise and other issues. While I understand the difficulties that Mr X has described, I have not seen evidence the Council’s approach was flawed or unreasonable. I understand the police gave Mr X advice about the issues he was reporting.
62. I recognise the works adjacent to Mr X’s homes are noisy and he has had to report anti-social behaviour linked with the building and renovation work. However, I do not consider the Council has been at fault. It was unfortunate that initially, COVID measures limited the actions that may otherwise have been taken by the Council. However, we have seen evidence they took the actions we would expect to consider the reported issues subsequently. I recognise Mr X may disagree with the decisions that officers have taken, however, we consider the way councils reach decisions rather than assessing who is right or wrong when there is a disagreement about the judgements taken about the issues in dispute.
63. Mr X’s Human Rights are engaged in the issues that he raised in his complaint, however, we have not found fault in the Council’s actions in pursuing the various reports Mr X made.
64. As I do not consider there was fault by the Council, I have completed my investigation and closed my file.

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Final decision

65. There was not fault by the Council.

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Investigator's decision on behalf of the Ombudsman