Summary: Mr X complained on behalf of his client, a manufacturing business. Mr X said the Council gave planning consent for a housing development next to his client’s factory without adequately considering how to prevent noise from the factory causing a statutory nuisance to the occupiers of the new housing. We found the Council at fault for how it approved a planning condition designed to protect occupiers of the new houses from the noise of the factory. But we could not say this failing would have resulted in a different outcome for Mr X’s client. However, the fault still caused uncertainty which we consider a form of distress. The Council has accepted these findings and agreed to apologise to Mr X’s client and improve its service to prevent a repeat.

The complaint

1. Mr X complained on behalf of his client, a manufacturing business, which has used a factory from the same site in the Council’s area for many years. His complaint centres on a housing development next to the factory approved by the Council. When people moved into the new houses some complained of noise from the factory. The Council decided they were caused a statutory noise nuisance. The business accepted this and agreed to abate the nuisance by making changes to the business. It estimates this will cost it up to £230,000 as well as losses for factory downtime. Mr X complained the Council should have ensured during the planning process the housing developer had effective measures in place to prevent complaints of noise.
2. In addition, Mr X complained about the Council’s conduct when investigating the statutory nuisance, saying it acted unreasonably.
3. Mr X said but for these alleged faults, his client would never have incurred the cost, time and inconvenience caused by having to take measures to abate the noise nuisance. Nor would they have incurred legal costs after taking advice once the Council began its statutory nuisance investigation.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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)
8. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
9. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating, or there is no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
10. 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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What I did and did not investigate

11. I investigated the complaint summarised in paragraph 1. I had to consider if this was a late complaint because Mr X first contacted us about his client’s complaint in May 2023. The complaint invited us to consider the Council’s actions beginning around five years previously, when it approved the housing development next to the factory. However, I did not consider this fact on its own, made the complaint late.
12. Mr X’s client had no cause to complain until it became clear the Council would take enforcement action for a statutory nuisance caused by noise from their factory. This was not until late 2022. While they had prior knowledge the Council had approved planning permission, it was not until then they knew how this had impacted them.
13. I also took account here the business’s objections to the housing development, made in 2018, did not raise an objection in principle to new housing on the adjacent land. Instead, its objections focused on whether the residents of the houses would suffer unwanted noise from the factory. Mr X’s client had no cause to complain at the point the Council gave planning permission because it only did so conditionally. It imposed a condition designed to prevent residents suffering unwanted noise.
14. I further noted Mr X’s client did not know when the Council discharged that planning condition. The Council did not consult it when the developer applied to discharge the condition, nor when it approved this.
15. Therefore, despite the passage of time since some of the events covered by the complaint, it was not a late complaint.
16. I did not investigate the part of the complaint summarised in paragraph 2. Mr X’s concern with the Council’s conduct centred on its decision to take enforcement action for statutory nuisance through the Magistrates Court. As paragraph 8 explains there is a bar on the Ombudsman investigating complaints about court proceedings. So, we could not investigate a complaint the Council had begun formal enforcement action under the statutory nuisance regime.
17. The bar took effect at the point the Council decided to begin enforcement through the courts. I noted that before then the Council had contact with Mr X and / or his client and both sides attempted an informal negotiation to avoid court proceedings. In this case, I chose not to investigate those interactions which pre-dated the Court proceedings. This was after considering the Ombudsman’s general discretionary powers of investigation as summarised in paragraph 9.
18. First, because the facts did not point towards there being any fault in the Council’s actions before it began prosecution. I reached this view as both sides accepted the factory caused a statutory nuisance to the occupiers of the new housing.
19. Second, to the extent this had been previously in dispute, we could not investigate because of the later court proceedings which agreed such nuisance occurred. I could achieve no worthwhile outcome by investigating how the Council considered any earlier dispute about that matter.

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How I considered this complaint

20. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
21. I also gave Mr X and the Council a chance to comment on a draft version of this decision statement. I took account of any comments they made (or further evidence provided) before making my final decision.

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What I found

Key legal and policy considerations

22. Councils should approve planning applications that accord with policies in their local development plan, unless other material planning considerations indicate they should not. They can approve development subject to planning conditions the developer must satisfy for it to proceed.
23. Material considerations are factors that consider the use and development of land in the public interest. They can include issues such as noise or other forms of pollution.
24. Government statements of planning policy are material considerations. Relevant to this complaint was Government guidance set out in the National Planning Policy Framework (NPPF). When the Council approved the planning application at the crux of this complaint this said the planning system should aim to prevent new development from contributing to “unacceptable risk from or being adversely affected by unacceptable levels of […] noise pollution […]” (paragraph 109, NPPF 2012). It also said: “existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established” (paragraph 123, NPPF 2012).
25. The NPPF also cross-referenced the Government’s Noise Policy Statement for England (NPSE). This sets out a series of high-level policy aims that development should avoid exposing people to noise harmful to health.
26. In 2018, after the Council approved the planning application at the crux of this complaint, the Government updated the NPPF. It now said that “existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse impact on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed”.
27. Local planning policies are another material consideration. Of particular relevance to this complaint was policy NE9. This said: “planning permission will not be granted for development which would generate pollutants that would cause significant detriment to users of the development [or where] the existing pollutants would be a danger to users of the proposed development”. Accompanying commentary in the local plan identified noise as a potential pollutant that could be prejudicial to human health or cause nuisance. That commentary also said planning permission may be granted subject to conditions to ensure the effects of pollution were minimised to an acceptable level.
28. The British Standards Institute produces technical standards (BS standards) on a wide range of products and services. Its advice includes BS8233:2014 which provides guidance on sound insulation and noise reduction standards for buildings. It sets out criteria for the maximum desired noise levels in dwellings at different times of day.
29. BS8233:2014 says that “where industrial noise affects residential or mixed residential areas the methods for rating the noise in BS4142[2014] should be applied”. The BS4142 standard provides guidance on methods for rating and assessing industrial and commercial sound. It says when assessing noise from industry, the assessor should apply a penalty for noises that have certain qualities likely to make them more prominent. For example, for tonal or impulsive noise. A tonal noise is one that contains a noticeable or discrete continuous note that can include hums, hisses, screeches or droning. Impulsive noise includes that caused by hammering, or items banging or clanging.
30. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. This can include noise from premises.
31. 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 property; and/or
• injure health or be likely to injure health.

The key facts

The planning application

32. In 2017 the Council received a planning application for a housing development on a brownfield site next to the factory belonging to Mr X’s client.
33. With the planning application, the developer presented a report from a noise consultant which examined the potential impact of noise from the factory on occupiers of the proposed new houses. The report noted Government planning guidance and Council policy outlined above. It noted the Council commonly imposed planning conditions that would require a noise insulation scheme to achieve specific measurable targets for maximum noise levels during the daytime, nighttime and in gardens.
34. The report said the business produced noise that was “dominant across the site”. It said there was “constant air movement from mechanical plant and intermittent, impulsive operational noise”. The consultant undertook an assessment based on the approach set out in BS4142:2014. Their report said the factory would have a “likely adverse impact” on occupiers of the new homes. Using the methodology in BS4142 the consultant applied a penalty to account for the impulsive noises and tonal noises. Their report said the homes closest to the factory should “be enhanced to ensure that internal noise levels are 10dB below the daytime internal guidelines within BS8233:2014”.
35. The Council planning service asked its environmental health service to provide comments on the application, including the noise consultant’s report. At first the service did not consider the developer had provided enough information. They considered the developer could potentially mitigate noise from the factory adversely impacting the occupiers of the new homes, but only with a “robust sound insulation scheme”.
36. So, the environmental health service asked the developer’s noise consultant for further information. This included asking them to undertake a ‘noise mapping’ exercise, predicting how noise from the factory would impact across the development site.
37. The developer’s noise consultant went on to present an updated report in 2018 with the results of a noise mapping exercise. This repeated the advice that to avoid “significant adverse impact to future residents […] internal noise levels during the day will be reduced to at least 25dB”. This is 10dB below the recommended daytime maximum noise level in BS8233. It went on to set out standards for façade insulation and glazing for the new homes.
38. The Council considered the planning application at committee in 2018. Planning officers prepared a report which drew attention to concerns around noise from the factory. This told Members of the committee the Council’s environmental health service considered the development “will achieve the required internal noise levels”. The environmental health service said it had no objection to development subject to “post-completion verification that internal and external noise levels are not exceeded”.
39. The minutes of the planning committee show that officers also briefed members about objections received from Mr X’s client. The business said it had “serious concerns” that “loud extractor units” serving the factory could cause anti-social noise to the occupiers of the new homes.
40. The Council decided to approve the development subject to planning conditions. The conditions included one which said: “the approved development shall be implemented in accordance with the updated noise report by [the noise consultant] dated [x/x/18]. Prior to first occupation of individual dwellings or phases of dwellings, a post-completion verification report to confirm that the internal noise levels as outlined in the approved report have been achieved shall be submitted to and approved the Local Planning Authority”. The Council recorded imposing this condition to protect the amenity of the occupiers of the new homes.

The planning application to discharge the planning condition

41. In early 2021 the developer submitted a planning application to discharge the planning condition set out in paragraph 40.
42. The developer then later provided a verification report from its noise consultant. The report enclosed details of noise surveying carried out from two completed homes facing the factory. The consultant said they had checked with the business that it operated normally during the survey. However, the report also noted one of the extractor units did not run during the survey.
43. The verification report said the consultant’s original report had “allowed headroom for distinguishable characteristics such as the intermittency observed during the survey”. But now the business “was operating continuously” and “as such the criterion is no longer appropriate”. It went on: “Consequently, the guideline internal noise criteria for dwellings, specified within BS8233:2014 is adopted”. The survey found the standards set out in BS8233:2014 met.
44. The Council’s environmental health service recorded its consideration of the verification report as follows: “survey carried out from plots [x] and [y] with one extract units not operating. Consultant takes account of this. States increase would be negligible due to extract that was operating being dominant noise source. Confirm internal levels below BS8233 in living rooms and bedrooms”.
45. The environmental health service then wrote to the planning service saying: “the Acoustic Assessment Report submitted with this application provides verification that the approved sound insulation scheme installed to the agreed plots surveyed (plots [x] and [y]) achieve the required internal noise levels”. It said that it considered the Council could approve the application to discharge the planning condition. The Council did this soon afterwards.
46. Mr X’s client was unaware the Council had discharged the planning condition. The Council had not consulted them further when considering the developer’s application.

The complaints from residents

47. In late 2021 the Council began to receive complaints from residents who had moved into the new development. An Environmental Health Officer, who had not previously considered the planning application, visited their homes and took recordings. They noted a “dominant hum” caused by the extractor fans serving the business.
48. The officer held discussions with the developer to see if they would pay for changes to the factory extractor fans to reduce their impact. However, after around three months these came to nothing and the developer said they would not engage in that process further. A record of those discussions noted the EHO commenting they were “not happy” with the original noise consultant’s report, saying it did not “fully address tonal noise issues”.
49. The Council continued its investigation, undertaking noise recording and taking witness statements. The factory made some attempts in summer and autumn 2022 to reduce the noise from the fans but these were unsuccessful. And before the end of the year the Council served a noise abatement notice on the business. It identified statutory nuisance caused by extractor fans serving the factory, because of the tonal noise they produced.
50. When the business failed to comply with the notice, the Council went on to begin a prosecution. It later paused this when both sides reached a consent order. The Council agreed to halt its prosecution in return for the business agreeing to abate the nuisance over an agreed period of time.

Investigation

51. As part of this investigation, I considered comments and spoke to a noise consultant commissioned by Mr X for his client. They produced a report which made criticisms of the 2017 noise consultant report produced by the developer. These included that the report:

• did not take noise recordings from locations equivalent to the first floor of homes on the new development site;
• took only a few noise recordings from a location close to the business. When it did so, many of these recordings were during hours when the business would be quieter;
• did not note the tonal noise from the business’s extractor units despite the fans being immediately obvious from a visit to the site.

52. They said that further, in 2018, in response to the environmental health enquiries the consultant:

• had reduced the suggested glazing specification for the new homes without explanation;
• had put too much weight on the methodology in BS4142:2014, not intended for assessing indoor sound levels;
• had provided inconsistent commentary on the number of fans working during the noise survey and did not break down what noise each fan produced. It described one as a ‘noisy fan’ without providing details of which fan it referred to or why it said this.

53. They further criticised the 2021 verification report because:

• it dismissed as negligible the impact of one fan not working during the survey. What if this was the ‘noisy fan’ referred to in 2018;
• it showed the homes did not provide the sound insulation the 2017 report promised they would (i.e. at levels 10dB below the standard set out in BS8233:2014);
• the recording data provided with the report showed “clear evidence of a tone”.

54. I also spoke to a senior environmental health officer for the Council. In a witness statement prepared for the statutory nuisance prosecution, they had said: “complaints about tonal noise that have been received illustrate the limitations of BS8233:2014 and building envelope sound insulation measures to adequately attenuate low frequency tonal noise, and by effectively attenuating other environmental noise that might otherwise mask or reduce the noticeability of the tonal noise, makes the tonal noise more noticeable inside the residential properties […]”.
55. The officer confirmed to me his view that the façade insultation and glazing used in the new homes effectively blocked out high frequency tonal noise such as traffic. However, it did not block out the low frequency noise from the extractor fans. They considered blocking high frequency noise, made the low frequency noise more noticeable inside the houses.
56. The officer considered the absence of a more detailed note by the service when it discharged the planning condition, did not suggest a lack of consideration. The case officer had robustly challenged the developer in response to earlier reports assessing noise and considered they would have done so again if they considered it appropriate. The officer considered that given the new homes met the BS8233 standard the Council could likely not refuse to discharge the planning condition. They considered that one of the extractor fans not working during the verification survey would not have skewed the results. This was because the fans are all of similar volume and tone.
57. The officer noted that after the Council approved this planning application, in 2018, the Government had introduced further advice into the NPPF which introduced ‘the agent of change’ principle. This placed an onus on developers to mitigate noise impacts when building new homes next to an existing noise source. But because of when the Council approved planning permission in this case, the officer considered it could not take account of this. It could not require the developer to take further measures to mitigate the unwanted tonal noise affecting the occupiers of some of the new houses. It still encouraged it to consider doing so but could not pursue this after the developer disengaged from such discussion.
58. During investigation the Council told us that its practice has changed since the events covered by this complaint. Its environmental health service no longer comments on planning applications, except in exceptional circumstances. Instead, it advises planning officers to use planning conditions using a standard wording, where there are potential concerns about the impact of noise on those occupying new development.

My findings

Was the Council at fault for giving planning permission?

59. I considered Mr X raised some legitimate questions about the quality of the noise consultancy report presented to the Council in 2017 in support of the planning application.
60. However, the planning records showed that before the Council gave planning permission:

• planning officers knew of the potential for the factory to cause unwanted noise to the occupiers of new houses. They consulted extensively with environmental health colleagues and drew attention to this possibility (and the business’s objections to development) when reporting to planning committee;
• environmental health officers scrutinised thoroughly the noise consultant report received in 2017 and asked the consultant to undertake further work to understand the potential impact of the factory noise. They received assurance from the consultant that development could proceed in a way that was compatible with national and local planning policy. The report said the developer could build houses to a specification that would mitigate the noise from the factory.

61. The Council’s judgement, following this scrutiny and consideration, was that development could proceed subject to a planning condition designed to protect occupiers of the new houses from unwanted noise. I do not consider we could fault that. Because this was a decision properly made after proper consultation and scrutiny. The decision did not ignore any relevant considerations and nor did it take account of anything irrelevant.
62. In particular, its judgement took account of the Council’s policy, NE9, which as Mr X points out, introduced in effect ‘the agent of change’ principle into the Council’s consideration. I did not agree with the Council’s EHO therefore that this was not something the Council could take account of in 2018. However, the evidence showed the Council had acted in accord with this policy. It conditioned the development in a way that it considered would reduce the noise impact of the factory on occupiers of the new houses to an acceptable level.
63. I also found no fault in the planning condition. The Council required the developer to build in accord with the consultant’s report produced in 2018. This set out clear, objective measurable standards for the noise insulation the new homes should achieve. Those standards cross-referenced, and went beyond, the relevant British Standard (BS8233), with the consultant having set out the logic for this in their earlier 2017 report.
64. I noted the later view expressed by the EHO who investigated the statutory nuisance that the noise consultant’s report did not fully address the tonal noises produced by the factory. I considered this a statement of fact. However, I did not consider this showed the Council’s earlier scrutiny of the report was inadequate. Because when suggesting the development adopt a higher standard of noise insultation, the consultant said this was to take account of the particular qualities of noise the factory produced, including tonal noise. It was not fault at the time for the Council to have relied upon this.

Was the Council at fault for discharging the planning condition?

65. I considered the key decision in this case was therefore that taken by the Council in 2021, when it found the developer had done enough to satisfy the planning condition. This followed receipt of the developer’s verification report.
66. Unfortunately, the Council left no record suggesting it gave the verification report the same detailed consideration it gave the 2017 and 2018 reports. That in itself was enough to find fault with its decision given the obvious importance the Council gave to the impact of noise from the factory, when it approved planning permission.
67. Because of the lack of any adequate record of scrutiny, it was not possible to say what consideration the Council gave to several questions raised by the 2021 verification report. These were:

• why it accepted the business not having one of its extractor fans working on the day of the survey would not impact on the results or findings set out in the verification report;
• why it accepted the noise consultant’s proposal that the buildings should now achieve the standard set out in BS8233:2014 as opposed to what they said in their 2017 and 2018 reports. In those they said the houses closest to the business should achieve a standard 10dB below the BS8233:2014 standard;
• what, if any, consideration it gave to the impact on occupiers of the new homes of tonal or impulsive noises from the business. The noise consultant had referred to these when setting out why the new homes should adopt the higher standard. In addition, the data with the verification report showed a tonal noise present. But the report did not refer to tonal noises (nor impulsive ones) and offered no explanation for why these factors noted three years previously were no longer present;
• whether the developer used building materials specified in the 2018 noise consultant report. This set out the standards that façade insultation and glazing should achieve, but the verification report did not refer to these and nor did the Council check.

68. The Council’s brief note of its consideration of the verification report alluded to only one of these questions. It noted one of the factory’s extractor fans not working during the verification noise survey. I could only assume the Council agreed with the consultant’s analysis that this made no difference to the findings. The consultant came to this view understanding the fans ran at around the same volume. However, given the consultant had previously drawn attention to a “noisy fan”, the Council should still have recorded its reasons.
69. Therefore, I could not say the Council gave enough attention to any of the questions set out above. That suggested inattention as well as poor record keeping. And that too justified a finding of fault.

What was the injustice caused by these faults?

70. I went on to consider the consequences of these faults on Mr X’s client. Had the Council given more attention to the matters set out above, then it might have rejected the developer’s application that it had satisfied the planning condition designed to mitigate noise impacts. However, I also found reasons to think it might not have. These were:

• the Council had explained why the extractor fan not working on the day of the survey may not have impacted on the results or findings set out in the verification report. So, even though its officer should have recorded their thinking here, I did not find their consideration of this matter inherently flawed;
• the Council could have accepted the BS8233:2014 standard as acceptable and not the higher standard as previously promised. The noise consultant’s 2017 report identified the Council usually imposed planning conditions that mirrored the standards set out in this document. There would usually be no fault in the Council using this standard when approving residential development;
• there was no evidence the developer failed to fit the homes with façade insulation and glazing compatible with what its noise consultant recommended.

71. Further, even if the Council had insisted on the developer sticking to the standard of 10dB below the BS8233:2014 recommended level, this may not have prevented complaints about tonal noise. Both noise consultants I spoke to explained there are limits in house construction that mean house design alone cannot always prevent tonal noise transmission. The Council’s opinion, which we did not contest, was that the noise reduction properties of the homes may have resulted in the tonal noise becoming more prominent inside those homes. This was because, the less noise from other sources, the greater the impact of the tonal noise felt within the properties.
72. For all the reasons set out above we could not say therefore what would have been the result if the Council had left a more detailed consideration of the developer’s verification report. We could not come to a view on whether it was more likely than not that it would have refused the discharge application. Nor what would have been the impact if it had required the developer to adopt the more rigorous standards of noise insulation promised in the noise consultant’s report of 2018. Nor if it could have enforced against that standard. Nor could we come to a view on if it had done any of these matters, if this would have prevented the reports of problem tonal noise made once the houses became occupied.
73. I had great sympathy for Mr X’s client who had done nothing but continue their business in the same way as they had for many years. But it followed from what I found above that we could not say that but for the fault the Council would have come to any different view on the question of whether the business caused a statutory nuisance to its neighbours. So, we could not say the injustice caused to Mr X’s client encompassed the time, costs and inconvenience caused as a result of the Council finding it caused statutory nuisance.
74. This was not to say Mr X’s client had not suffered an injustice. I considered there remained, and always would remain, uncertainty about what the Council would have done but for the fault. I considered this a form of distress. I therefore asked the Council to apologise for that.
75. Finally, I considered if there was more the Council could have done to require the developer to bear some of the cost for mitigating the unwanted noise. But I did not consider it could have done more than enter informal negotiation, which it tried and which unfortunately did not result in the developer agreeing to any further action.

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Agreed Action

76. To remedy the injustice identified in paragraph 74 the Council will, within 20 working days of a decision on this complaint apologise to Mr X’s client, accepting the findings of this investigation. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council has agreed to consider this guidance when making its apology.
77. I also wanted the Council to learn lessons from this complaint to prevent a repeat of the fault. I recognised that Council practice had changed since the events described by this complaint. But the complaint raised an important principle that when discharging planning conditions, the Council should have a clear audit trail of its decision making. So, within two months of a decision on this complaint the Council will circulate advice to its planning and environmental health service that officers should ensure they keep a record of why they consider any planning condition satisfied. This will include recording how they have considered any supporting evidence provided by the developer in support of an application to discharge planning conditions.
78. The Council will provide us with evidence it has complied with the above actions.

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Final Decision

79. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mr X’s client. The Council accepted these findings and agreed action to remedy that injustice. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman