The Ombudsman's final decision
Summary: Mr C complained that the Council had failed to enforce a planning condition limiting noise from an extractor fan. The Council was at fault for delay in responding to Mr C’s complaint. This fault caused Mr C injustice in the form of frustration. The Council has agreed to pay Mr C £200. However, the Council was not at fault for the way it dealt with Mr C’s concerns about the planning condition.
The complaint
The complainant, Mr C, says the Council is at fault for: Poor wording of a condition imposed on a grant of planning permission in 2016, Conducting an inadequate assessment of the noise made by an extractor fan at a restaurant near his house, and Wrongly deciding it would, from April 2021 onwards, investigate Mr C’s concerns about fan noise through its environmental health department only.
Mr C says the above have caused him injustice as the fan in question makes an unacceptable level of noise which affects his enjoyment of his property and the Council has not taken any effective action to stop it.
What I have investigated I have investigated matters going back to March 2021. I have set out matters which I have not investigated at the end of this decision statement.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) We investigate complaints about ‘maladministration’ and ‘service failure’. 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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I spoke to Mr C. I wrote an enquiry letter to the Council. I considered the information I had gathered.
Mr C and the Council had an opportunity to comment on my draft decision. I considered these comments and made changes as a result.
What I found
What should happen Ombudsman’s role The Ombudsman, when dealing with complaints about the granting of planning permission, cannot consider whether the decision was right or wrong. It is the role of the planning system, not the Ombudsman, to decide on planning matters. My role is to determine whether there has been administrative fault in the way any decision was made.
Planning permission The central government has passed laws and regulations and issued guidance to control planning in England. The general rule, set out in the National Planning Policy Framework, is that permission for planning must always be granted by a local planning authority, unless there are sufficient reasons not to do so. Reasons not to do so include a finding that the development would interfere with the ‘amenity’ of local people and that the development does not comply with local planning policy and guidance.
Councils are the planning authorities for their areas. Those wishing to carry out development in the area must usually ask their council for planning permission.
Planning conditions Councils will often grant permission for development subject to certain conditions. If the developer does not comply with the conditions, this may result in enforcement action being taken.
Planning enforcement Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. A breach of planning control is defined in the Town and Country Planning Act 1990 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.
Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates’ court. However, as stated above, enforcement action is discretionary.
Noise nuisance Councils’ duties regarding noise complaints are set out in the Environmental Protection Act 1990. On receiving a complaint about a noise nuisance, a council must investigate to see whether it amounts to a ‘statutory nuisance’. To be a statutory nuisance, the noise must either: Unreasonably and substantially interfere with the use or enjoyment of a home or other premises; or Injure health or be likely to injure health.
The law says a statutory noise nuisance must be sufficient to cause distress to a person of normal sensitivity. A council officer will therefore visit to make an independent judgment as to whether the noise amounts to a statutory nuisance.
Many factors will affect the officer’s decision. They will consider the time and duration of any noise or smell as well as its severity. They may ask complainants to keep a noise diary to help assess the impact on them. Councils may use sound measuring equipment though there is no statutory requirement to do so.
If a council decides a noise amounts to a statutory nuisance, it must serve an abatement notice requiring the perpetrator to stop. If it decides that the noise made does not amount to a statutory nuisance it can continue to use informal intervention to try to solve the problem.
What happened Mr C lives in the Council’s area in a largely residential area where there are also restaurants and shops.
Between five and ten years ago, a restaurateur applied for permission to convert a premises close to Mr C’s house into a restaurant. This required the installation of an extractor fan. Planning permission was granted subject to a condition (‘Condition A’) that noise from the fan should run at a level 5 decibels below the background noise level (‘5Db(A)’) when measured 1 metre from the façade of the closest noise-sensitive building.
Mr C does not live in the noise-sensitive building nearest the fan. He says the rear wall of his house faces the fan and is approximately 20m from it. The Council says it is 26m away. Mr C says the noise from the fan is often clearly audible and distressing to him and his wife when his window is open and in his garden.
In 2017, a senior planning officer told Mr C that the condition was enforceable and ‘must be enforced’.
Mr C has complained frequently about noise from the fan. He came to the Ombudsman in 2018 and we upheld his complaint. We required the Council to commission an acoustic report about noise from the fan.
The Council did so in March 2019 and found that the noise from the fan did not comply with the condition absolutely but found that it was close enough to mean that enforcement action would not be expedient.
Mr C continued to complain about the noise from the fan. Later in 2019 he met councillors to discuss his concerns. In December 2019, having spoken to the relevant Council departments, one councillor wrote to him and explained the Council’s position: Since Condition A was imposed, the Council had introduced a new standard and wording for conditions. After one test which showed that a fan met the required standard, the Council would discharge the planning condition. Thereafter, it would deal with complaints about noise through its environmental health department. Condition A, on the other hand, imposed a potentially limitless liability on the owners of the restaurant to pay for acoustic reports every time a complaint was received. As such reports cost £1500 each, this “would not be considered reasonable”.
The staff who had drafted Condition A had now left. The Council would now deal with complaints about the fan through its environmental protection team and would refer them to the planning team only if environmental health found there was a statutory nuisance. If not, it would “be considered unreasonable to enforce the condition each time a complaint is received”.
The Restaurant changed ownership in late 2019. It opened briefly under new management in early 2020 before closing due to the COVID-19 pandemic. It remained closed for much of 2020. When it reopened, Mr C says the noise became a problem again.
Mr C continued to press the Council to enforce Condition A. The Council corresponded with him during 2020. In late October 2020, a Council officer, Officer O, wrote to Mr C saying the wording of Condition A was such that it led to confusion between the roles of environmental health department and the planning department. He said, “I did not agree with the wording of [Condition A] as it was not worded in a manner which can have the condition discharged when the requirements of the condition were met. My reason for not agreeing to the wording is because I wished to avoid confusion/cross over between Planning Enforcement and Noise Enforcement if the condition is breached at a later date. It would also require a continued assessment of the background noise each time a complaint was raised. This would make it impossible to maintain as a service if we were required to assess the background/plant noise of all the plant noise complaints we receive. It should also be noted that an increase in background noise does not necessarily mean a disturbance to nearby residents. The Statutory Nuisance regime is there to address such problems in the future and therefore in my opinion should be the only way to investigate and enforce noise nuisance complaints once the conditions for Planning have been met.”
Mr C made a formal complaint to the Council in March 2021. He said: Condition A was poorly worded, and The March 2019 noise report shows that noise from the fan breached Condition A The Council was failing to take any action to stop the noise.
In early April 2021, the restaurant reopened and Mr C began to complain again about noise from the fan.
In mid-April 2021, Officer O wrote to Mr C. He said that, from now on, the Council would investigate noise complaints about noise from the fan initially as an environmental health issue. The environmental health department would decide whether the noise from the fan amounted to a nuisance under the EPA. If it did, the matter might be investigated by planning enforcement.
In May 2021, Mr C wrote to the Council to say that the restaurateur appeared to have replaced an MDF box around the fan.
The records show that Council environmental health officers continued to investigate his concerns. On one occasion, an officer, Officer P, visited the restaurant while on the phone to Mr C in an attempt to isolate the machinery that caused the noise which Mr C found offensive but it was not possible to do so.
Mr C wrote again to the Council in June 2021 saying that Condition A, which required the fan to comply with certain measurable criteria did ‘not sit easily’ with the requirements of the EPA which were matters of ‘subjective assessment’.
Mr C wrote to the Council again in June 2021 to complain of its ‘egregious failure’ to deal properly with his complaint.
Mr C says he has been in contact with a near neighbour who agrees with him that the noise from the fan has got worse.
In December 2021, Mr C wrote to the Council to report that the old MDF box around the fan had been replaced but had not resolved the noise issue.
In March 2022, the Council responded to Mr C’s complaint. It dealt with other concerns raised by Mr C at the same time. The Council did not uphold Mr C’s complaint. It found that both the Council and the Ombudsman had dealt with some points before. It found no fault in the way it dealt with Mr C’s reports of noise. However, it apologised to him for the ‘excessive’ time it had taken to complete its investigation.
Mr C complained to the Ombudsman and continues to complain about noise to the Council.
Was there fault causing injustice?
Delay Mr C made a formal complaint to the Council in March 2021. He did not receive a final complaint response until March 2022. The Council accepts that it was at fault for a delay in dealing with Mr C’s complaints. It has apologised and offered him £100 in recognition of this fault.
In my view, this is an inadequate remedy for such a lengthy delay in responding. This delay clearly caused Mr C injustice in the form of frustration for over a year. For that reason, a greater remedy is required. I have borne in mind, however that, during this time, the Council continued to deal with Mr C’s concerns, albeit not as he would have liked. In my view, therefore, the Council should offer Mr C £200.
Enforcement Mr C says that the acoustic report of March 2019 shows that the fan did not comply with Condition A and that a previous head of planning told him that the level stipulated in Condition A “must not be exceeded”. He says that, for these reasons, the Council must take action to force compliance.
However, I cannot agree that this imposed a duty on the Council to take enforcement action whenever Mr C asked for it. Planning enforcement action is discretionary. After it received the acoustic report of March 2019, the Council told Mr C that, even though the noise level at a point one metre from the building facing the fan was “slightly over the level required to adhere to Condition [A]” because “the additional decibel levels measured were considered to be negligible”, enforcement action was not expedient. This was, in my view, a decision which the Council was entitled to take and not something I can find the Council at fault for.
The Council has told Mr C on at least two occasions – once in late 2019 through a councillor and once via Officer O in October 2020 that it will only take enforcement action if it first finds there is a statutory nuisance. Again, planning enforcement action is discretionary.
In response to my enquiries, the Council said it could not commit to taking planning enforcement action every time Mr C made a complaint because, “otherwise, the Council’s planning service will be required to carry out an assessment each time at a cost of £1,800 per investigation”.
The Council has also said that Condition A is probably unenforceable. Although Mr C has complained about this, in my view, this is not a matter that can form part of this investigation. The condition was imposed more than five years ago and it is not clear what injustice Mr C suffered as a result of its wording.
Also, it is difficult to see how the condition, even if it is unenforceable, has caused Mr C any injustice. An alternative condition would probably have been discharged by now meaning that the Council would only be able to deal with Mr C’s noise reports through its environmental health department, just as it now does.
This is a reasoned professional decision which bears in mind the interests of all parties It protects the interests of the restaurateur who could otherwise be asked to pay for any number of acoustic reports and Mr C because enforcement action will be taken if there is a statutory nuisance. The Ombudsman does not generally find fault with a council for a decision made by a professional in the course of their duties if the decision considers all the relevant factors. We cannot find fault with a properly made decision because a complainant disagrees with it.
Further, it is not clear that Mr C has status to complain to the Ombudsman about the planning condition, which requires noise to be at a certain level some way away from his property whereas there can be no doubt that he has standing to complain about noise in his garden and, if he did not believe the noise in his garden was unacceptably loud, he would not be complaining.
For these reasons, I do not find fault with the Council for its decision not to take planning enforcement action.
Agreed action
The Council has agreed that, within four weeks of the date of this decision, the Council it will apologise to Mr C for the delay and pay him £200 in recognition of the injustice caused.
Final decision
I have found the Council at fault. It has accepted my remedy. I have closed my investigation.
Parts of the complaint that I did not investigate The Ombudsman does not generally investigate late complaints unless there is good reason to do so. The matter of whether Condition A is properly worded is therefore beyond the remit of this investigation as the wording was formulated more than five years ago and Mr C has been aware of the wording for much of that time so could have complained about it sooner.
It is also arguable that Mr C should have complained sooner as he was informed of the Council’s change of approach in December 2019 by his councillor.
Other matters have already been investigated by the Ombudsman.
Investigator's decision on behalf of the Ombudsman