Summary: X complained the Council mistakenly approved a permitted development application for a noisy industrial use very close to their home. X said this has caused a significant impact on their amenity. We found the Council was at fault because it approved an application for a use that fell outside permitted development regulations. We completed our investigation because the Council 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 the Council mistakenly approved an application to allow the conversion of an agricultural building to a noisy industrial use very close to X’s home.

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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 significant injustice, 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)

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How I considered this complaint

5. I read the complaint and discussed it with X. X sent several video recordings, including sound coming from the site next to their home.
6. I read the Council’s response to the complaint and considered documents from its planning files, including plans, the case officer reports, environmental health visit records and noise diaries.
7. I discussed what had happened with an environmental health officer and a planning manager.
8. I have taken account of the Ombudsman’s guidance on remedies for injustice caused by nuisance.
9. I gave the Council and X an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

10. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.
11. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
12. 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.
13. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
14. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
15. Some permitted development proposals require an application so the council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior notification’ applications.
16. Councils may approve applications, subject to a separate planning agreement. Council powers and appeal rights relating to these agreements are found in part 3 of the Town and Country Planning Act 1990 and they are usually referred to as ‘section 106’ agreements. These agreements are in the form of a deed, which is a contract that is legally binding on the parties that sign it.

Environmental health law and functions

17. 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.
18. 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

19. X lives next to land that was once used for farming. There was a large agricultural building very close to the shared boundary.
20. The Council received a prior notification application to change the use of the building from agricultural to industrial use. The proposal was to convert the building to a factory, which would impact amenities of nearby residents because of noise. The application came with a noise impact assessment.
21. The relevant section of the permitted development regulations allowed such a change, but only if the proposal fell within certain use categories. This included conversion to any industrial use which can be carried out in a residential area without detriment to amenities caused by noise, vibration, smell, fumes or smoke etc. The regulations did not permit general industrial use, which cannot be carried out without causing detriment to residential amenity.
22. The application was considered by a case officer who described the proposal as a flexible commercial use, which would be used for fabrication work. The case officer considered the application fell within permitted development limits so prior approval was granted subject to conditions, including one which controlled the hours of use, between 0700 to 1800 Monday to Friday, and 0900 and 1200 on Saturdays.
23. Soon after work began, X complained to the Council about noise. A planning manager reviewed the prior approval decision and decided:
• the Council’s decision was flawed because the approved use fell outside the limits of permitted development regulations. This was because the use was general industrial and likely to cause an impact on residential amenity;
• this had happened because the case officer had placed too much weight on the noise assessment, which assumed that doors to the building would be shut.
24. The Council began working with the landowner and business operator to agree changes to the use and development of the land that might be acceptable in planning terms. Meanwhile, the Council’s environmental health officers visited the site to decide whether a statutory noise nuisance existed.
25. During a number of visits over the following months, both when doors to the building were open and shut, the environmental health officers witnessed noises caused by grinding, cutting, hole punching, welding and other industrial processes. There was also noise from radios and workers shouting loudly at each other over the noisy background. The Council found that a statutory noise nuisance existed and served an abatement notice.
26. An environmental health officer explained that, because the current use of the site had planning approval, the site operators could use a ‘best possible means’ defence against enforcement action. In these circumstances, the Council has negotiated some improvements which may help reduce noise, but are unlikely to remove all detrimental impact. This was because the building was too close to residential buildings, which was not designed to reduce noise impacts and the doors of the building faced towards residents.
27. The improvements included:
• air conditioning, so lower temperatures inside the building might reduce the time the door is left open;
• rubber door flaps, so some materials can be moved inside without opening the doors; and
• some noise insulation.
28. The environmental health officer said the abatement notice remained in place and the situation would be kept under review. The officer was also aware that the Council’s planning department was considering a new planning application, that if built, was likely to remove the cause of the nuisance.
29. The Council sent me details of an approved application. The plans include:
• a purpose-built factory in a different location;
• noise mitigation measures, including an earth bund, noise attenuation fencing, and other measures to reduce noise impacts; and
• new houses on the site of the existing factory.
30. The application was approved subject to a section 106 agreement between the Council, the landowner and the business operator, which required cessation of use of the current factory building by autumn this year. Conditions within the planning approval and the section 106 agreement become legally binding as soon as any work is carried out to commence the development.

My findings

31. 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.
32. The Council was at fault because it approved a prior notification development that fell outside the limits of permitted development regulations. The new use resulted in a nuisance, for which the Council found it necessary to serve an abatement notice. The fault caused a significant injustice to X, and I recommended a remedy to recognise the impact this has had on their amenity. The noise caused stress, frustration, disruption to everyday family life and X’s enjoyment of their home. The Council agreed to my recommendations.
33. However, if the nuisance does not cease as the Council expects and it fails to regain planning control, X may come back to the Ombudsman with a new complaint. We can then consider whether a further or different remedy is necessary.

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Agreed action

34. To remedy the injustice caused by the fault I have found, the Council has agreed to the following remedy:
1. Within 1 month of our final decision, it will pay £8,250 in recognition of the impact the fault has had on X and their family; and
2. Within 6 months of our final decision, it will update us and X on whatever actions it has taken to mitigate the noise.
35. The Council will provide us with evidence it has complied with the above actions.

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Final decision

36. I found fault which caused a significant injustice to X. The Council has agreed to remedy the injustice caused, and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman