Summary: Mr and Mrs C complained about the Council’s decision to close its investigation into their reports of noise nuisance, anti-social behaviour and breaches of planning control from a nearby business. Mr and Mrs C say they suffer from unacceptable noise and anti-social behaviour and have spent unnecessary time and trouble in pursuing the matter. We have found no evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr and Mrs C, complain about the Council’s decision to close its investigation into their reports of noise nuisance, anti-social behaviour and breaches of planning control from a nearby business.
2. Mr and Mrs C say because of the Council’s fault they suffer from unacceptable noise and anti-social behaviour and have spent unnecessary time and trouble in pursuing the matter.
3. I have investigated events from January 2019. The final section of this statement contains my reason(s) for not investigating earlier reports.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. 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

8. I read the papers provided by Mr and Mrs C and discussed the complaint with them. I have considered some information from the Council and provided a copy of this to Mr and Mrs C. I have explained my draft decision to Mr and Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

Planning applications

9. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
10. Where necessary for approval of a permission a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application. The applicant must satisfy the condition and apply for it to be discharged by the authority.

Planning enforcement

11. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says that local planning authorities should act proportionately in responding to suspected breaches of planning control.
12. Section171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

13. Where the breach involves carrying out development without permission, the authority may serve an Enforcement Notice if it is expedient to do so under section 172 of the Act. It is for the planning authority to decide whether it is expedient to take action. An Enforcement Notice creates a right of appeal to the Planning Inspectorate.
14. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates court.

Statutory nuisance

15. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. 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 premises; and / or
• injure health or be likely to injure health.

16. 
    There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact if a nuisance occurs outside normal working time.
17. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
18. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
19. If the 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 service of an abatement notice for a short period, to attempt to address the problem informally.
20. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
21. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
22. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

Anti-social behaviour

23. Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 defines anti-social behaviour as:
1. conduct that has caused, or is likely to cause, harassment, alarm or distress to any person
2. conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or
3. conduct capable of causing housing related nuisance or annoyance to any person.
24. Councils can discharge their duty in a variety of ways. This includes informal intervention such as mediation and/or advice and use of powers in addition to the above legislation under:

• The Environmental Act 1990
• The Town and Country Planning Act
• The Housing Act

Key events

Reports of planning breaches

25. The Council has provided details of the planning history for the original development of the site for building light industrial units and the provision of car parking and subsequent planning permissions for three commercial units at the site. Mr and Mrs C’s home and garden is next to the site.
26. Mr C contacted the Council in early January 2019 about the business working at 3pm on a Saturday and on a Sunday outside of permitted hours and causing a noise nuisance. Mr C stated he had video evidence. The Council responded to say it would investigate and provide an update in due course.
27. The Council contacted Mr C to arrange a visit to witness the noise and install noise monitoring equipment. The Council also offered to pick up the video evidence of the alleged planning breaches at such a visit. Mr C contacted the Council to question the need for a visit or further noise monitoring.
28. The Council wrote to Mr C to explain its previous investigation did not find a statutory noise nuisance and the case was closed in 2017. The more recent alleged breach of planning conditions did not provide evidence in itself of a statutory nuisance and the Council would need to complete a new investigation. The Council provided details of Mr C’s private right of action under section 82 of the Environmental Act 1990 if he did not wish the Council to investigate.
29. Mr C contacted the Council about an alleged breach of a planning condition relating to storage towards the end of January. Mr C provided his video evidence to the Council at the end of January together with a detailed description of the contents of each video.
30. The Council provided a detailed response to Mr C in early February about his reports of alleged planning breaches. This set out that the business had already contacted the Council to advise it had worked past permitted hours on a Saturday due to an equipment breakdown. The Council noted this was a rare occurrence and decided it was not expedient to take formal enforcement action. The Council referred to Government guidance and its own policy that enforcement action was discretionary and should be proportionate. The work Mr C had reported on a particular Sunday was the removal of a loaded trailer from the site which had been scheduled for collection on the following Monday. The Council had also contacted the business about this incident but did not consider it to be a material breach of a planning condition that would merit further action. The Council did not consider there was evidence of a breach of the relevant storage condition and noted the extension to the main building had an earlier permitted start time under permitted development rights which meant the internal activity did not constitute a breach of planning control.
31. Mr C responded in February to say the business was aware it had been photographed working outside permitted hours on the Saturday which is why it contacted the Council and an equipment failure was not a reasonable excuse. Mr C also noted the site was not secured until two hours past the permitted hours of working and sought further information about the relevant planning permissions. Mrs C raised an additional query about a condition relating to noise on a historical planning permission.
32. The Council responded towards the end of February to explain the noise condition was applied to the site before planning permission was granted for their house to be built and so could not refer to their boundary.
33. The Council further responded to note Mr C’s earlier comments and that these would be added to the file for consideration if any further reports were received. The Council explained the time of securing the site was not relevant to hours of operation.
34. Mr C contacted the Council to question its interpretation of the hours and activities allowed by permitted development rights for the extension. The Council stated in early April that the extension built under permitted development rights could be used between 6.30am to 7pm and the office could be used between 7.30am to 7.30pm weekdays. The Council wrote to Mr C in April to confirm it was seeking further guidance about the permitted hours of the extension built under permitted development rights. The Council subsequently confirmed towards the end of April that the permitted development regulations it had referred to related to the provision of employee facilities only and apologised. The Council confirmed the extension was not built to provide such employee facilities and was used for B2 (General Industrial) use.
35. The Council provided its reasons to Mr C for not taking formal enforcement action in response to Mr C’s further reports of breaches of planning control. Although the Council had confirmed work started in some parts of the site such as the office and rear extension before 8am this was within the permitted working hours for these areas. There were no conditions requiring the factory doors to be closed and so no resulting breach of planning control. The brief storage of and subsequent loading of steel onto a trailer and the parking of the trailer until collection was not a breach of planning control as the Council noted this was a reasonable use of a loading bay.
36. The Council wrote to Mr C towards the end of June to confirm its view the extension built under permitted development rights was subject to the working hours contained in a planning permission from 1993 of 8am to 6pm Monday to Friday and 8am to 1pm on Saturdays with no Sunday or Bank Holiday working.
37. The Council confirmed in mid-September that after reviewing all the evidence it had decided there was no breach of planning control.

Report of noise/anti-social behaviour

38. Mr C said in April 2019 that workers at the business were aggressive, threatening and intimidating when Mrs C was videoing them. The Council reminded Mr C that it had previously advised against videoing the employees of the business which could result in an upsetting response and possibly be seen as engineering a confrontation. Mr C reported an incident of anti-social behaviour towards the end of April when his wife received comments when she walked past some of the site’s employees.
39. The Council offered to meet with Mr C in early May to discuss his reports of anti-social behaviour including noise nuisance, breaches of planning control and intimidating behaviour. The Council also provided diary sheets for Mr and Mrs C to record future instances. Mr C replied to say the suggested meeting date was not convenient and to stress his reports of noise should be addressed as anti-social behaviour rather than noise nuisance.
40. The Council offered to install noise monitoring equipment in Mr and Mrs C’s property but this offer was declined. The Council installed noise monitoring equipment in another property during 2019. As assessment of the noise did not establish noise from the site constituted a statutory nuisance but noted improvements could be made to reduce the impact of noise on local residents including Mr and Mrs C.
41. The business agreed to instruct an acoustic consultant to assess the impact of noise on those living nearby. The consultant completed a noise survey in June 2019 which highlighted a number of improvements that could be made to mitigate the impact on nearby residents.
42. The Council met with the business in September to discuss the acoustic report and noise mitigation suggested by the acoustic consultant. The business completed the following work:

• A particular yard door was filled in with the introduction instead of a personnel door with a door closer, no air gaps and compressible seals to reduce noise break out from the unit.
• An overhead crane was replaced with a new crane installed away from Mr and Mrs C’s property.
• A yard area was resurfaced to provide a smooth surface with no steps or level changes reducing noise when transporting heavy metal sections.
• The use of a quieter loader in one yard and consideration of replacing two diesel side loaders with quieter models once their lease expired.
• Audible reversing alarms on the lift trucks were replaced with broadband type audible reversing alarms although the business noted it may revert back to a tonal audible alarm system to ensure safety.

43. The acoustic consultant completed an assessment in April 2020 of the mitigation works and found the changes had significantly reduced the impact of noise on those living nearby including Mr and Mrs C.
44. The Council considered the conduct of the business to be reasonable in assessing the impact of their activities and was taking reasonable and practicable steps to reduce the impact on those living nearby. The Council did not consider the allegation that the business’s behaviour was unreasonable and detrimental to those living nearby to be founded and closed Mr and Mr C’s anti-social behaviour case. The Council wrote to Mr and Mrs C in June 2020 to confirm it was closing the case as it had not identified a statutory noise nuisance or anti-social behaviour.
45. Mr C complained to the Council towards the end of December about the way it had responded to his reports. Mr C contacted the Council towards the end of January 2021 to chase a reply to his formal complaint. The Council explained in early February that it had sent a response dated 31 December 2020. Mr C stated he had not received the response and was concerned it had been sent to an incorrect address. The Council apologised in mid-February. The Council has not been able to access the relevant mailbox to establish the address the email was sent to but noted that Mr and Mrs C used three different email addresses. Given the passage of time I do not consider further investigation on this point is a good use of the Ombudsman’s resources.

My consideration

46. Based on the information provided, I am satisfied the Council responded to Mr and Mrs C’s reports of noise, anti-social behaviour and breaches of planning control and took appropriate action. The Council has provided evidence that it has responded to reports of both nuisance and planning breaches at the site and taken action as set out above.
47. There was a delay by the Council in clarifying the permitted hours of work for some parts of the site after initially providing inaccurate information. I note the Council apologised at the time to Mr C and provided clarification in a reasonable period. In the context of the site with different units and planning permissions and the Council’s overall response to Mr C’s reports I do not consider this constituted fault causing an injustice.
48. The Council has provided cogent reasons where it has not taken action. It is appreciated that Mr and Mrs C would have preferred the Council to take different action but I have seen no evidence of a failure to respond or undue delay that would constitute fault by the Council.

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Final decision

49. I have completed my investigation as I have found no evidence of fault by the Council.

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Parts of the complaint that I did not investigate

50. Mr and Mrs C reported noise nuisance and breaches of planning control to the Council during 2017 to 2018. The Council investigated the reports at the time and closed the cases. Mr and Mrs C did not contact the Ombudsman until April 2021. Therefore, any complaint about reports before April 2020 would be caught by the restriction outlined at paragraph 6 above. However, as the matter can be considered ongoing, I have exercised the discretion available to me to investigate events from January 2019 onwards.

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Investigator's decision on behalf of the Ombudsman