Summary: the complaint concerns the processing of a planning application and consideration of environmental health issues from the development. The Council delayed uploading information to its public website, failed to properly consider the visual impact the development would have, failed to investigate some of the issues raised by Mrs B properly and failed to properly advise Mrs B. There was no fault in how the Council considered the noise issues relating to the development or in the information the Council provided in response to the solicitor’s property search. An apology, payment to Mrs B and investigation of some outstanding issues is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained about the way the Council dealt with a planning application and the environmental health impacts of development. Mrs B complained the Council:
• failed to publish information about the proposed ventilation system on the planning website until after it had granted planning permission;
• failed to disclose information about the ventilation system in response to her property search before she purchased her property;
• failed to consider the impact the development would have on her when granting planning permission;
• failed to act to reduce noise/odour/smoke nuisance from the ventilation system;
• failed to act when the operator of the business put the ventilation system into use before the condition on the planning permission was discharged; and
• failed to act on issues with bins which are attracting rodents.
2. Mrs B says fault by the Council has caused her significant stress, left her experiencing constant noise and has affected the value of her property.

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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 an injustice, we may suggest a remedy. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and 34(3), as amended)
4. 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

5. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mrs B and the organisation 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

What should have happened

7. The council must make all decisions on planning applications in accordance with its development plan unless material considerations indicate otherwise.
8. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant's personal conduct, covenants, or reduction in the value of a property. Material considerations include issues such as overlooking, visual impact and noise.
9. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.
10. 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.
11. 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. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
12. The Council’s procedure for the investigation of noise complaints (the procedure) says each complaint should be given a priority category. This is to ensure high priority cases are dealt with first. High priority cases include those where the noise occurs regularly or where there has been more than one complaint about the same noise source within the previous three months. The procedure says a site visit will normally be appropriate to enable the investigating officer to witness the noise. The procedure says where this is not possible the Council should provide noise diary sheets.
13. The procedure says observations should be taken of any noise inside and immediately outside the source premises and a note should be kept of any measures in place to control or mitigate the effects of the noise. The procedure says officers should record any subjective impressions of the noise.
14. The procedure says officers should make detailed observations of all noise witnessed inside the complainant’s premises and in any outdoor amenity space.
15. The procedure says sound recording equipment can be a valuable tool for investigating complaints. The procedure says though that while sound recording equipment is useful in assessing the number of times that events occur it is less useful in deciding if the event is a nuisance as playback through headphones or in a special room does not replicate the acoustic qualities of the receiving room and the human perception of noise at the person who has complained premises.
16. The procedure says the Council can close the case when the investigation has established that the complaint is not a statutory nuisance.

What happened – planning application

17. The Council had refused previous applications for a change of use of a shop premises due to the impact on neighbouring properties. The premises is at ground floor level in a row of commercial businesses with flats above. Mrs B bought one of those flats in March 2020.
18. The Council received a further planning application for a change of use of the premises to a café in 2019. Officers recommended refusal of the planning application due to concerns about the anticipated negative impact on the amenity of neighbouring residential properties, particularly for noise as the applicant had not submitted a noise impact assessment. At a planning committee meeting Members decided to defer the application to seek full ventilation details and an acoustic noise assessment for the impact on nearby residential amenity.
19. The applicant provided details of the ventilation proposals in January 2020. The Council did not make those documents publicly available on its website until May 2020.
20. In light of the ventilation details submitted by the applicant environmental health advised it no longer had concerns about the proposal. The Council therefore granted planning permission, subject to various conditions. That included a condition recommended by environmental health which required the noise levels to be 10dB lower than the background noise levels. The condition also required the applicant to submit a scheme for the mounting of any mechanical plant for approval by the Council to ensure it minimised transmission of structure borne sound or vibration.

What happened - Environmental health issues

21. Mrs B bought her property in March 2020. Mrs B contacted the Council in June 2020 to report that the ventilation system was extremely and continuously noisy and could be heard from inside her property.
22. An environmental health officer visited Mrs B. The environmental health officer noted there were other loud air-conditioning units running that were not associated with the premises complained of. The officer could not hear any noise from the premises complained of and the ventilation unit, which is on the flat roof next to Mrs B’s terrace, was not operational. The officer visited the premises and asked them to run the units at maximum capacity and reviewed the level of noise from outside Mrs B’s property. The officer considered that although the unit was audible it was no louder than the air-conditioning units for another premises and that a statutory nuisance was not established.
23. The Council told Mrs B about its findings. Mrs B told the Council the other air-conditioning units were not a problem and that the ventilation extractor was switched on all day every day. The officer noted this had not been her experience as the unit was not operational at her visit but said she would review the case and confirm next steps.
24. The Council decided to install sound recording equipment. The Council could not carry that out until October 2020 due to COVID-19 restrictions. Mrs B also provided log sheets for the period the equipment was in her property. The Council considered the recordings and decided they were inconclusive in relation to the source of the noise. The Council therefore decided to send to officers to carry out a visit to assess further. That visit was delayed due to a further lockdown, during which time the business was not operating at full capacity.
25. The Council contacted Mrs B in April 2021 to check on the situation. Mrs B told the Council noise had not been too bad recently.
26. Mrs B contacted the Council in June 2021 to report that noise nuisance was again at unacceptable levels. Mrs B also reported odour, smoke and inadequate bin storage.
27. Officers attended Mrs B’s property on 21 June 2021. They did not identify any noise nuisance, odour or evidence of inadequate waste storage. However, as the weather was wet and cold officers advised they would visit again.
28. Two officers visited again on 23 June. One officer visited the premises to ensure it operated the extraction unit at maximum capacity, while the other officer stayed in Mrs B’s property. The Council did not consider noise to constitute a statutory nuisance either inside Mrs B’s property or on her terrace. Officers did not identify any odour or smoke nuisance and did not identify waste which would likely harbour rats.
29. Mrs B was unhappy with the Council’s response and put in a complaint. When responding to that complaint the Council told Mrs B it would refer her concerns about smoke to the food team to add to its inspection programme.

What happened - Planning enforcement

30. Mrs B contacted the Council about the operator of the business not complying with the condition on the planning permission in May 2020. A planning enforcement officer visited later that month but could not enter the building to inspect the ventilation system due to COVID-19 restrictions. The Council therefore asked Mrs B to provide photographs of the roof area. Mrs B did that.
31. Mrs B chased the Council in July 2020. The Council told Mrs B based on her photographs it appeared the units complied with the approved plans. Mrs B disagreed. The Council therefore visited the site. That visit identified that the ventilation unit’s position had changed and the operator of the business agreed to move the unit to comply with the approved plans.
32. Mrs B chased the Council for progress in August and September 2020. The contractor was due to carry out the work at the end of September but that was delayed due to sickness and the need for dry weather. In November Mrs B told the Council the ventilation system had been repositioned. Mrs B told the Council she did not believe the location matched the approved plan.
33. The Council visited the site in January 2021 and again in June 2021. The Council told Mrs B it was satisfied there were no longer any breaches of planning control.

Analysis

34. The Council accepts there was a delay publishing information about the proposed ventilation system for the premises on its planning website. The Council received the information from the applicant in January 2020 but did not upload it to its planning website so it could be viewed by the public until May 2020. Delay placing the documentation on the Council’s website so members of the public could access it is fault.
35. Mrs B’s main concern here is that she was in the process of purchasing her property while the planning application was under consideration. Mrs B says if she had known about the proposal for the ventilation system on the roof, next to her terrace, she would not have purchased the property. Mrs B therefore believes fault by the Council prevented her withdrawing from the purchase. Mrs B accepts though that neither she nor her solicitor checked the Council’s planning website in relation to other planning applications in the vicinity. I am therefore satisfied the fact the Council did not place the documentation on its planning website for the public to access did not cause a significant injustice to Mrs B as neither she nor her solicitor checked the Council’s website before she purchased the property.
36. In reaching that view I recognise Mrs B believes the Council should have disclosed information about the planning application and the proposed ventilation system in response to her solicitor’s search. However, the Council has confirmed that when carrying out the searches Mrs B’s solicitor only asked the Council for information about the property to be purchased and not about surrounding properties. The issue here is therefore with the information the solicitor requested, rather than the Council’s response to that enquiry. As the solicitor did not ask for information about neighbouring properties I have no grounds on which to criticise the Council.
37. Mrs B says the Council failed to consider the impact the development would have on the amenity of neighbouring residents when it granted planning permission. Mrs B points out previous similar planning applications for the same premises had been refused permission due to concerns about the impact on neighbouring residents and nothing had changed with this application. Mrs B suggests because Members of the Council are involved in the business operated at the premises this has influenced the decision to grant permission.
38. I have carefully considered the documentation. This shows officers initially recommended refusal of the application as the applicant had not provided sufficient information to show the development would not have an unacceptable impact on neighbouring residents. At that point environmental health had objected to the application due to concerns about the impact the development could have on neighbouring properties. The evidence I have seen satisfies me Committee decided to defer the application instead to seek ventilation details and details about the impact of noise. Following that deferral I am satisfied the environmental health officer removed any objection to the development on the basis the ventilation details provided by the applicant were satisfactory, provided a condition was imposed to control noise levels. The Council imposed that condition.
39. The report for the application also set out the views of the environmental health officer in full and the officer’s views of how the development would impact on neighbouring properties. So, in terms of the impact the development and ventilation system would have in environmental health terms I am satisfied the Council properly considered those issues and imposed a condition to protect Mrs B’s amenity. I appreciate the Council has reached a decision with which Mrs B strongly disagrees. However, as I am satisfied the Council took into account the environmental health impact the development would have on neighbouring properties when it granted planning permission I have no grounds to criticise it.
40. I understand Mrs B’s concern though given similar applications had been refused permission previously. However, the Council has to consider the application in front of it. I am satisfied the material fact that changed with this application was that the operator of the business had provided the Council with sufficient detail about the proposed ventilation arrangements for the development for the environmental health officer to remove their objection to the application. I am satisfied it was that change in view, rather than any influence from Members of the Council with an interest in the property, which resulted in the grant of approval.
41. It is clear though the ventilation system on the roof is large and visible from Mrs B’s property. The report for the application records the officer’s view that the proposed change of use will not result in significant harm including to the visual amenities of neighbouring residents. However, the report does not explain the basis on which the officer took that view. I am concerned about that given the size of the ventilation unit on the roof and the impact that has on the visual amenity of neighbouring properties. I would have expected the report to record the impact and why it was considered acceptable in planning terms. Failure to do that is fault as it leaves Mrs B with no clear explanation for why the Council considered the development acceptable in terms of its impact on her visual amenity. I do not consider it likely the Council would have reached a different decision on the application. However, there is a possibility the Council would have required some screening to reduce the impact if it had properly considered it. Mrs B is therefore left with some uncertainty about whether the visual impact on her could have been mitigated if the Council had considered that issue.
42. Mrs B says the Council failed to properly investigate her concerns about noise, odour and smoke nuisance from the ventilation system. The evidence I have seen satisfies me the Council investigated the issue of noise and odour properly. I say that because I note the Council provided Mrs B with log sheets and officers visited on three occasions to attempt to identify any nuisance. I am satisfied the final one of those visits, in particular, was comprehensive as it involved officers visiting the subject premises to ensure the ventilation system was running at its maximum level while another officer stayed in Mrs B’s property to identify any nuisance issues. Following that visit the Council decided there was no evidence of a statutory nuisance in terms of noise, odour or smoke. As the Council reached that decision properly after visiting the site there are no grounds on which the Ombudsman could criticise it, no matter how much Mrs B disagrees with the assessment undertaken.
43. In reaching that view I recognise one of Mrs B’s concerns is that a decision on whether there was nuisance was taken from within her property with the windows and doors closed rather than on her terrace. Mrs B is clear the noise on her terrace is significant and with the windows open it is also at unacceptable levels. The evidence I have seen though satisfies me when carrying out the final visit officers considered the noise, odour and smoke nuisance from both within Mrs B’s property and outside on her terrace. The evidence I have seen satisfies me officers determined there were no statutory nuisance issues either inside Mrs B’s property or on her terrace. I recognise Mrs B strongly disagrees with that view. However, as I have made clear, it is not my role to comment on the merits of a decision reached without fault. As I have found no evidence of fault here I have no grounds to criticise the Council.
44. I do, however, have some concerns about how the issues with smoke and vibration were dealt with. In the Council’s complaint response in November 2021 it told Mrs B the food team would carry out inspections for any smoke nuisance. The Council has not provided me with any evidence this has been followed up. I therefore consider it likely, on the balance of probability, the issue of smoke nuisance has not been investigated further. That is fault given the Council had committed to do so.
45. The Council also accepts it failed to advise Mrs B of her right to pursue her own action under section 82 of the Environmental Health Act 1990. That is fault.
46. Mrs B says the Council failed to act when the operator of the business put the ventilation system into use before seeking discharge of a condition on the planning permission. Mrs B is referring here to the condition on the permission which required the operator of the business to provide the Council with a scheme for the mounting of mechanical plant used on the premises to minimise transmission of structure borne sound or vibration to any other part of the building. The Council accepts the condition has not been discharged. Technically this means there is a breach of condition. As I said earlier though, I am satisfied the Council has investigated the concerns Mrs B has about noise from the ventilation system. Those investigations have satisfied the Council noise levels are acceptable.
47. There is no evidence though the Council has investigated whether the mounting of the mechanical plant minimises transmission of vibration. While vibration is not a matter specifically raised by Mrs B in her complaint to the Ombudsman it is something she mentioned to the Council. In addition, the freeholder for the building has raised concerns about vibration. Given the wording of the condition I am concerned to note the Council has not followed up on the issues with vibration to establish whether the condition requirements have been met. That is fault. While I consider it is unlikely this has caused Mrs B a significant injustice, given she has not reported vibration from the development, it has caused her to go to time and trouble to pursue the complaint and has added to her frustration.
48. Mrs B raised concerns about whether the Council has properly considered whether the ventilation system has been installed in the right place. I am satisfied the Council has properly considered that by visiting the premises on several occasions. I am satisfied in doing so the Council has acted to require the operator of the business to move the mechanical plant into the correct position, to reflect the planning permission, albeit there was some delay here and a further delay investigating when Mrs B said it was still in the wrong place. Those delays are fault. I understand Mrs B does not believe the mechanical plant is in the right position. However, I am satisfied the Council has determined that the positioning of the mechanical plant is satisfactory and complies with the permission after visiting the site to see it in situ. It is not my role to comment on the merits of a decision reached without fault. As the Council has reached its decision about the positioning of the mechanical plant after visiting the site I have no grounds to criticise it.
49. Mrs B says the Council failed to act on issues with bins which are attracting rodents. Mrs B says despite providing the Council with photographic evidence it has failed to act. I am satisfied the issue with bins attracting rodents was considered by the Council on the site visits which took place in June 2021. At that time officers did not identify any issues. However, the Council accepts it has not carried out an assessment of commercial waste. Failure to do that is fault.
50. So, I have found fault as the Council delaying putting details of the ventilation system on its public website, failed to consider the visual impact on Mrs B’s property, failed to properly consider Mrs B’s concerns about smoke, failed to advise Mrs B of her right to take the environmental health issues to the magistrates court, failed to follow up on the condition that should have been discharged before the development was put into use, delayed and failed to investigate the commercial waste complaint.
51. As I said earlier, I do not consider it likely fault by the Council affected the decision to grant planning permission in this case. Nor do I consider it likely Mrs B’s purchase of her property was affected by fault by the Council. I therefore consider Mrs B’s injustice is the time and trouble she has had to go to in pursuing her complaint, her frustration and her uncertainty about whether measures could have been taken to reduce the visual impact of the ventilation system had the Council properly considered that. I recommended, as a personal remedy for Mrs B, the Council apologise for the matters that have gone wrong in this case and pay Mrs B £500 to reflect her time and trouble, uncertainty and frustration. Alongside that I recommended the Council send a copy of my final decision statement to officers in planning and environmental health so they are made aware of the areas where failings were identified in this case. I also recommended the Council arrange for officers to assess the concerns about smoke, vibration and commercial waste. For the vibration issue, once the matter has been investigated the Council should decide whether further information is required from the applicant to satisfy the condition imposed. The Council has agreed to my recommendations.

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Agreed action

52. Within one month of my decision the Council should:
• apologise to Mrs B;
• pay Mrs B £500;
• investigate Mrs B’s concerns about smoke and commercial waste and then communicate its decision about that to Mrs B;
• investigate whether there is any evidence of vibration being caused by the mechanical plant used by the premises and, if so, whether further details are required from the applicant to discharge the planning condition. The Council should ensure it communicates with Mrs B about its findings in relation to that point; and
• provide a copy of my decision to planning and environmental health officers to note the areas where failings occurred in this case.

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Final decision

53. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman