Summary: Mr X complained about the Council’s decision to grant planning permission for a development at a school near his home. There are parts of the complaint we have not investigated because too much time has passed. For the remaining parts we find no fault in the Council’s actions or decision making.

The complaint

1. Mr X complained about the Council’s decision to grant planning permission for development at a school near his home. Specifically, Mr X complained the Council:
1. failed to properly consider the noise impact of the development on his property when deciding the planning application;
2. failed to investigate his reports of noise nuisance from the use of the site; and
3. failed to discharge the planning conditions related to the development before its use.
2. Mr X says the noise from the site significantly impacts him and his partner and wants an independent investigation into the decision.

Back to top

The Ombudsman’s role and powers

3. 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)
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)

Back to top

What I have and have not investigated

5. I have not investigated some of part a) of Mr X’s complaint. This is because Mr X was aware of these issues for more than 12 months before he complained to us. This part is therefore a late complaint and there is no good reason to investigate it now.

Back to top

How I considered this complaint

6. I spoke to Mr X and considered the information he provided.
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.

Back to top

What I found

Planning enforcement powers

8. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
9. 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.
10. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Statutory nuisances

Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’, which can include noise from premises or vehicles, equipment or machinery in the street.

11. 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.

12. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers to gather evidence. Officers may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or make site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
13. Once evidence gathering is complete, a council will assess the evidence. It will consider matters such as the timing, duration, and intensity of the alleged nuisance. Officers will use their professional judgement to decide whether a statutory nuisance exists.
14. If a council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay issuing an abatement notice for a short period, to try to address the problem informally.
15. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court decides they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.

What happened

16. In 2023, the Council granted planning permission for a development at a school near to Mr X’s home, subject to planning conditions. These conditions included tree planting, limited hours of use, a noise and lighting management plan, and installation of an acoustic fence – all to be completed before the development was first used.
17. One month after the work was completed, Mr X complained to the Council about noise from the site.
18. The Council responded, asking Mr X to continue to keep a record of the dates and times he experienced noise disturbances, and to confirm whether he had contacted the school directly. Mr X responded, advising that he had not contacted the school and clarifying that his complaint was about the general noise in the evenings, which made one of his bedrooms unusable. He asked for reduced hours of use, noise testing in the evening, and an abatement notice to be served. The Council informed him that it conducts noise monitoring and has noise equipment available.
19. The following month, the Council told Mr X it had spoken to the school, which was aware of similar concerns from other residents. The school was looking into options to reduce noise levels, including planting extra trees around the boundary and installing more acoustic fencing. The school also planned to visit local residents during the evenings to observe noise levels.
20. In the same month, Mr X sent noise recordings to the Council and asked why an abatement notice had not been served.
21. The following month, the Council explained the noise concerns were still under investigation and that it had not made a determination of a statutory nuisance. The Council shared that it was in contact with the school, allowing it time to respond and address the concerns informally before considering enforcement on planning grounds. The school planned to plant trees in various locations and install fencing later in the month, in addition to reducing the hours of use. The Council would then conduct further monitoring afterward.
22. Later that month, Mr X expressed concern that the Council’s investigation was limited to email communication with the school and sent further evidence of the nuisance he was experiencing. The Council responded, clarifying that its communication included emails, calls, and meeting with the school to discuss its plans. It reiterated the timeline for tree planting and fencing installation, alongside the reduced hours of use. The Council noted the school was taking steps to address the noise and light issues so did not consider it appropriate to start enforcement action and assured that further noise monitoring visits and coordination with the school were planned. Mr X replied, asking why sound monitoring had not taken place. The Council explained that sound monitoring had been conducted and the noise levels were not considered to be a statutory nuisance. Further sound monitoring would take place after the school completed the proposed works.
23. Later in the month, Mr X complained to the Council. He questioned the suitability of the trees and suggested the Council were delaying its investigation to allow for proposed work to take place before taking further action. He also raised concerns about the conduct of the case officer.
24. The following month, the Council investigated, finding no evidence of poor conduct by the officer but apologised for any unintentional delays. It clarified that it is the investigating officer’s role to decide whether a statutory nuisance exists, which also has to be witnessed by the Community Protection Team. The Council also explained that it has no duty to take legal action until it is satisfied a statutory nuisance exists. The case officer, alongside another officer, had conducted several noise monitoring visits at the site and the surrounding area and decided no nuisance was present.
25. Later that month, Mr X escalated his complaint, dissatisfied with the response. The Council reviewed whether it had followed due process in assessing light and noise nuisance. It confirmed its decision that no statutory nuisance existed, based on observations, recordings, and Mr X’s diary entries and audio evidence. The Council told Mr X of his right to approach the magistrates’ court for an abatement order, where his evidence would be reviewed to decide if a statutory nuisance exists.
26. Six months later, Mr X complained to the Council that the school had not met the planning conditions before use of the development started. The Council responded that it was aware of the site’s use, but as the school had submitted the required documentation for assessment, it would not take enforcement action.

My findings

27. We are not an appeal body. Our role is to review the process by which decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.

Initial planning application process and decision making

28. The Council considered the noise assessment and lighting design information when reviewing the planning application and found this, along with the proposed noise management plan and acoustic fencing, acceptable. A Council does not need to compare an application with other similar developments in its decision-making process. Given that the Council considered the relevant information in its decision-making, I find no fault in the Council’s actions.

Statutory nuisance

29. After receiving reports of the alleged statutory nuisance, the Council contacted Mr X and asked him to continue to keep a diary of the alleged noise nuisance. It decided to investigate the matter further, contacting the school, and conducting several visits to the area at appropriate times. A council is not required to enter a complainant’s home or provide sound monitoring equipment; ideally, an officer will visit and witness the alleged nuisance first hand, which occurred here. After reviewing the evidence, the Council determined no statutory nuisance existed and told Mr X. The Council continued to monitor the noise and worked informally with the school to address noise issues. The Council has taken reasonably practical steps, in line with the law, to investigate the alleged nuisance, and I find no fault in the Council’s approach in investigating and deciding on Mr X’s report.

Planning conditions

30. Mr X complained the school was using the development even though some planning conditions had not been met. A Council has discretion over whether to take enforcement action, even when planning conditions are breached. In this case the Council found enforcement unnecessary since the school submitted the required documents. I find no fault in the Council’s decision making. Additionally, since the Council determined there was no statutory nuisance, the site’s use without all planning conditions being met does not cause Mr X significant injustice.

Conclusion

31. The Council has taken reasonably practicable steps to investigate Mr X’s complaint and decided that no statutory nuisance exists. The Council has engaged with the school, which has reduced the hours of use, planted trees, installed extra acoustic fencing, altered light angles, and has adjusted the work undertaken based on feedback from residents. The Council has also clarified its reasoning for not taking enforcement action on the outstanding planning conditions, noting that enforcement is discretionary. I find no fault in the Council’s actions.
32. Under s82 of the Environmental Protection Act, Mr X has the right to approach the magistrates’ court directly to apply for an abatement order. This process is independent of the council, meaning the court will consider his evidence and decide for itself whether a statutory nuisance exists. Regardless of the Council’s and our findings, Mr X has the right to follow this alternative.

Back to top

Final decision

33. I have completed my investigation. I find no fault in the Council’s actions and decision making.

Back to top

Investigator's decision on behalf of the Ombudsman