Summary: X complained about the Council’s failure to properly consider the impact an existing business would have on the amenity of new residents when it approved a planning application. X lives in one of the new houses and is affected by noise coming from the business. We found fault in how the planning decision was made. The Council has agreed to our recommendations to remedy the injustice caused by the fault.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained that the Council failed to properly consider the impact their neighbour’s business would have on X’s home when it granted planning permission.

Back to top

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 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)
4. 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)

Back to top

How I considered this complaint

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I have discussed the case with an environmental health officer.
6. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

Back to top

What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Environmental health law and functions

11. Councils have statutory power to enforce environmental protection measures in their areas. They can control nuisance caused by pollution, from things like noise, dust, smoke and odour by issuing abatement notices.
12. Environmental health officers may also provide advice to other departments, including advice on planning applications on what the impact a development or land use might have on the environment. They may recommend planning conditions to protect public amenity.

What happened

13. The Council approved a planning application for housing development on land next to an existing business. The business generated noise that could be heard beyond its boundaries.
14. X bought a new house on the boundary and complained about noise coming from business operations.
15. The Council responded to the complaint by saying the planning decision was made without a comment on whether noise protection measures were necessary, because the map used by environmental health officers did not show the existence of the business.
16. X said the noise affects their amenity. X also said that fumes from the site impact their family’s health. X said they cannot always keep their windows open in the summer and so felt it necessary to install an expensive air conditioning system, including air filters to reduce harm from pollution.
17. I discussed what had happened with an environmental health officer, who said:
• the Council had found no evidence to show the noise amounted to a statutory nuisance, but it was harmful enough to justify serving a community protection notice to resolve disturbance caused by the business;
• if environmental health had been aware of the existence of the business when the planning application was being considered, they would have recommended a condition to require noise reduction measures. A noise attenuation fence on the boundary would probably have been sufficient to satisfy its concerns;
• the business has since agreed to submit a planning application to build a high noise attenuation fence. The Council is confident the problem will be resolved and an attenuation fence should adequately reduce the impact from noise disturbance;
• environmental health officers had made several visits to the site but had not witnessed any air pollution nuisance that would justify enforcement action.
18. The Council has accepted it was at fault and before they complained to the Ombudsman, paid X £250 for the impact on their amenity.
19. In assessing the injustice caused by the fault, I considered a number of issues, including:
• the Ombudsman’s guidance on remedies;
• the nature and extent of the disturbance;
• X’s private rights and obligations;
• the likely outcome but for the fault I found;
• the period of time during which the nuisance occurred and X’s right to bring their complaint to our attention;
• the likely delay before the enforcement action that is underway will result in practical improvements to reduce the disturbance.
20. X said they felt the sum I had recommended in an earlier draft of this decision did not reflect the distress, inconvenience and reduction in amenity caused by the noise and air pollution for the past three years. X also wants the Council to commit to paying for an acoustic fence if its enforcement action fails to require the business to provide one.

My findings

21. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
22. The Council’s maps were incomplete and did not show the existence of the building. This is fault. Because of the fault, the Council’s environmental health officer did not recommend a planning condition that is likely to have required measures on the boundary such as noise attenuation fence.
23. X has been caused disappointment, frustration and uncertainty by what has happened. They have also lived in circumstances where their amenity was not as well protected as it might have been but for the fault.
24. I considered the injustice caused by the fault and my view was that the sum already paid by the Council did not adequately remedy the injustice I found. I recommended an apology and a further payment, which the Council has agreed.
25. My assessment of the injustice to X is based on the Council’s expectation that enforcement action and negotiations will result in a resolution. If this does not happen, X can make a new complaint to the Council and then to the Ombudsman about the Council’s failure to secure a permanent solution to the disturbance caused by the business.
26. X is dissatisfied with the amount I recommended the Council to pay in addition to the sum it has already paid. It is important to note that our recommendations are not intended to compensate individuals for losses or harm they have suffered. Where we recommend payments, they are intended to act as recognition of the fault and injustice caused, and largely symbolic. They are often of modest amounts.
27. I have not recommended a remedy for the impact of air pollution because I do not find any fault that caused an injustice connected to it. Though the Council has not found any evidence of nuisance caused by air pollution, private individuals can take their own action for nuisance in the courts against those who cause it.

Back to top

Agreed action

28. In recognition of the injustice caused by the fault I have found, the Council has agreed to:
1. apologise for the uncertainty, frustration, uncertainty and impact on amenity caused by the fault; and
2. pay a further £500 to X.
29. The Council will provide us with evidence it has complied with the above actions within one month from the date of our final decision.

Back to top

Final decision

30. I found evidence of fault that caused an injustice to X and recommended a remedy. The Council accepted my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman