Summary: Mr X complained about how the Council responded to his reports of noise and breaches of planning conditions by a supermarket near his home. The Council failed to investigate Mr X’s reports of a possible noise nuisance and failed to ensure the supermarket complied with a legal notice the Council sent it. The Council agreed to properly investigate the reports and decide what action, if any, to take without further delay. It also agreed to pay Mr X £150 for the avoidable time and trouble caused by having to complain.

The complaint

1. Mr X complained the Council failed to properly investigate his reports of noise and breaches of planning conditions by a supermarket near his home. He said the Council had not measured the noise he experiences, considered all the options available to it to stop the noise and had not communicated with him properly.
2. Because of the Council’s failure to act on his report, Mr X said he suffered significant stress, anxiety, sleep disturbance and frustration. He wanted the Council to properly investigate his concerns and stop the excess noise.

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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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. 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)
6. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

7. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• the relevant law, guidance and policy.
8. Mr X and the Council 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

Law, guidance and policy

Statutory nuisances

9. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include noise from buildings or vehicles, equipment or machinery in the street.
10. 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 building; and / or
• injure health or be likely to injure health.
11. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers (usually an environmental health officer, or EHO) to gather evidence. They may, for example, ask complainants to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
12. Once they have gathered necessary evidence, the environmental health officer(s) should assess this and decide what action to take. They should consider issues such as the timing, duration, and intensity of the alleged nuisance. The officer(s) use their professional judgement to decide whether a statutory nuisance exists.
13. 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.
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 a building, the council may delay service of an abatement notice for a short period, to try to address the problem informally.

Council’s noise complaints service

15. The Council provides an online service to report possible noise nuisances. On its website to report noise nuisances the Council says:

“During the coronavirus pandemic, we have changed how we respond to noise reports. To keep the public and public protection officers safe, we only make noise inspections if we have assessed that it is safe for us to do so.”

Planning enforcement

16. Planning permission is required to develop land (including material changes of use). Planning permission may be granted subject to conditions about the development and use of land.
17. Councils can take enforcement action if they find planning rules or conditions have been breached.
18. We expect councils to carry out a proper investigation into complaints about breaches of planning conditions and consider the range of enforcement options open to them.
19. Where there is a breach of a planning condition, councils may serve a Breach of Condition Notice. Failure to comply with this notice is an offence that may be tried in the magistrates’ court.
20. Even if a council decides not to take enforcement action, we would expect it to record its reasons for doing so and explain its decision to any complainants.

What happened

21. Mr X lives near a supermarket which makes online deliveries. The Council granted planning permission for the supermarket to increase the space used for delivery vans. The planning permission included several conditions to protect residents near the expanded delivery yard from excess noise.
22. In late June 2020, Mr X reported noise from the delivery yard and breaches of the planning conditions related to preventing noise to the Council.
23. Mr X says he did not receive a response to his reports, so he complained to the Council in August 2020.
24. Following his complaint, the Council says it wrote to the supermarket about the noise. The Council said it did not take more action, such as a site visit or noise monitoring equipment, because of the COVID-19 pandemic.
25. The Council received 27 other reports of noise from the delivery yard, which it said it logged but did not take further action about.
26. The Council separately investigated the reported breaches of the planning conditions. The Council wrote to the supermarket to remind it of the conditions. In late October 2020, the Council sent a Breach of Condition Notice (BCN) to the supermarket, requiring it to comply with the conditions by the end of November 2020.
27. Mr X complained to the Council in February 2021 that the noise continued and he believed the Council had not taken any action. Following this complaint, the Council said it has asked the supermarket to confirm what action it has taken to comply with the BCN and that Mr X needed to provide it with logs of the continued non-compliance.
28. Mr X complained to the Ombudsman because he said the excess noise and breaches of the planning conditions were still happening and the Council had not done enough to stop them.

My findings

Possible noise nuisance

29. Councils must take reasonable steps to investigate potential ‘statutory nuisances’. In its response to COVID-19, the Government did not relax or make any changes to this duty. While the ongoing pandemic might affect what is action is reasonable, the duty to investigate was unchanged.
30. The Council’s website says that it would only make noise inspections if it assessed it was safe to do so. However, there is no evidence the Council considered making any visits to either the supermarket or Mr X’s home, or that it assessed whether it would be safe to do so. There is no evidence the Council considered other ways of obtaining evidence, such as providing Mr X with diary sheets or noise monitoring equipment.
31. In our guidance on Good Administrative Practice during the response to COVID-19, we reminded Councils of the need to continue to consider the individual circumstances in each case, and to properly record the reasons for decisions or policy changes.
32. The evidence shows the Council failed to:
• respond to Mr X’s first report in June 2020, until he complained in August;
• assess whether a visit to the supermarket or Mr X’s property was safe; and
• consider what other reasonable steps it could take to investigate the reports of noise nuisance.
33. Based on this, I am satisfied the Council did not properly respond to Mr X’s reports of a possible noise nuisance, or the other 27 recorded reports. This was fault. The evidence shows the Council has still not properly investigated the possible nuisance, so this fault is ongoing.
34. The delays in responding to Mr X’s original report caused Mr X avoidable time and trouble, because he needed to complain to the Council and the Ombudsman.
35. However, I cannot say whether the ongoing failure to properly investigate the noise nuisance has caused Mr X, or other residents, an injustice. The Ombudsman cannot decide whether the noise is a statutory nuisance; that is a matter of professional judgement for the environmental health officers. Until that is decided, I cannot say whether earlier action by the Council would have prevented any distress to Mr X.

Breach of planning conditions

36. As with Mr X’s report of a possible noise nuisance, the evidence shows the Council did not properly consider what action to take about the breaches of planning conditions until Mr X’s August 2020 complaint. This delay was avoidable and so was fault which caused Mr X avoidable time and trouble because he needed to complain.
37. After the Council sent the BCN to the supermarket in October 2020, it took no action to check if the supermarket had complied with the notice. Only when Mr X complained again in February 2021 did the Council ask the supermarket what action it had taken to remedy the breaches. This was fault.
38. As of July 2021, the Council had not received a reply from the supermarket.

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Agreed action

39. Within one month of my final decision the Council will pay Mr X £150 to recognise the avoidable time and trouble caused by having to complain to the Council and the Ombudsman.
40. The evidence shows that people other than Mr X may also have been affected by, and made reports about, noise from the supermarket. Therefore, I have also recommended the Council review how it has responded to those other reports.
41. Within three months of my final decision the Council will:
• take reasonable steps to investigate the noise reports from Mr X and others affected by the noise from the delivery yard;
• decide if the noise constitutes a statutory nuisance, whether enforcement action is warranted and, if so, take that action in a reasonable time;
• if the noise is a statutory nuisance, offer Mr X a suitable remedy, in line with our Guidance on Remedies, for any avoidable distress caused by the delays in investigating his reports;
• investigate whether there are continuing breaches of the planning conditions by the supermarket, whether further enforcement action is warranted and, if so, take that action in a reasonable time;
• write to Mr X, and other residents who have made reports, to explain what it has decided to do and why;
• review its procedures for investigating reports of noise nuisances to ensure it investigates them in line with its legal duties;
• review its procedures for investigating planning enforcement cases to ensure it monitors compliance with legal notices or warnings it issues; and
• review co-operative working arrangements between its environmental health and planning teams to ensure co-ordinated responses to reports of noise with links to planning conditions.

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Final decision

42. I have completed my investigation and I uphold Mr X’s complaint. . The Council failed to investigate Mr X’s reports of a possible noise nuisance and failed to ensure the supermarket complied with the legal notice sent the by the Council. The Council agreed to properly investigate the reports and decide what action, if any, to take without further delay. It also agreed to pay Mr X £150 for the avoidable time and trouble caused by having to complain.

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Investigator's decision on behalf of the Ombudsman