Report. on an investigation into complaint no 06/B/15306 against Plymouth City Council. 21 January 2008

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1 Report on an investigation into complaint no against Plymouth City Council 21 January 2008 The Oaks No 2, Westwood Way, Westwood Business Park, Coventry CV4 8JB

2 Investigation into complaint no against Plymouth City Council Table of contents Page Report summary 1 Introduction 3 Legal and Administrative Background 3 Investigation 4 The initial planning application 4 Further planning applications 6 Residents noise complaints to the Council 6 Noise complaints Council officer s conclusions 8 Odours 8 Formal complaints process 9 Recent events 10 Conclusions 11 Finding 12 Key to names used Mr Moore - the complainant Officer A - Environmental Protection Officer Officer B - Planning Officer Officer C - Planning Officer

3 Report summary Subject Mr Moore (not his real name) complained that the Council did not consult him or his neighbours about a planning application for industrial premises near his home and failed to ensure compliance with the planning permission issued in The Council properly applied its neighbour notification policy but failed to monitor whether the company operating on the site was complying with planning conditions. The complainant and his neighbours have made several complaints about being disturbed by the company s operations and the Council s failure to ensure prompt compliance with planning conditions has resulted in delay in securing an acceptable environmental protection scheme. Finding Maladministration causing injustice. Recommended remedy That the Council:- 1. pay Mr Moore 5,000 in recognition of the injustice he has suffered and his time and trouble pursuing his complaint with the Council and with me; 2. write to Mr Moore to inform him of the outcome of the most recent assessment of whether there is statutory nuisance; 3. write to Mr Moore at least once every two months to keep him informed of the Council s progress in securing an adequate environmental protection scheme; and 4. review the adequacy of its arrangements for planning enforcement, including resources allocated to the function, in order to satisfy itself that they are fit for purpose. 1

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5 Introduction 1. Mr Moore complains that the Council did not consult him or his neighbours about a planning application for industrial premises near his home and failed unreasonably to ensure compliance with the planning permission subsequently granted in As a result, the condition requiring submission of an environmental protection plan was not enforced and he and his neighbours have suffered unacceptably from noise and fumes emitted from the site for a period of almost five years. 2. For legal reasons, the names used in this report are not the real names of the people concerned. 3. One of the Commission s officers has examined the Council s files, interviewed officers of the Council (two planning officers and an environmental protection officer) and visited the complainant. Legal and Administrative Background 4. Since 17 July 1992, local authorities have had a duty (separate from any requirement to consult public bodies etc, which is not considered here) to give publicity to all planning applications. Since 3 June 1995, this duty has been set out in the Town and Country Planning (General Development Procedure) Order 1995 ( the GDPO ). The publicity requirements are described in DoE circular 15/92 Publicity for Planning Applications ( the circular ) which, while referring to the almost identical 1992 scheme, remains in force. In the case of major developments Councils have to place an advertisement in a newspaper and display either a site notice or carry out neighbour notification. 5. In the case of commercial and industrial development, the Council s policy on neighbour notification in the period 1994 to 2005 was to notify occupiers of all properties abutting, adjacent, opposite and to the rear of the site. 6. Planning Policy Guidance (PPG) 24, issued by government in 1994, guides Local Planning Authorities on the use of their planning powers to minimise the adverse impact of noise. Planning Authorities can, for example, attach conditions to planning permissions for this purpose. 7. If development is carried out which is a breach of planning control a council may, if it considers it expedient to do so, take enforcement action to require the person responsible to remedy the breach. 8. A nuisance in common law is some activity or state of affairs which prevents a reasonable person enjoying a normal life in respect of the use or occupation of land. A statutory nuisance is basically a nuisance (or a potential nuisance) which has been specified in statute. Noise can be a statutory nuisance. 3

6 Investigation The initial planning application 9. In August 1997 the Council received a planning application for the site to change its use from a depot to general industrial purposes (Class B2) and storage and distribution (Class B8). The site had been identified for employment use in the Council s local plan. It had been previously fully utilised, including buildings and hard surfaced areas. 10. The company wishing to move onto the site had been operating from another site in the Council s area. Officer A, an environmental protection officer, told the Commission s Officer that there had been complaints about the company s operations on the other site which had been addressed with some success. However, he was not able to locate any of the relevant files in his department. 11. According to the Council s files, the Council publicised the application by site notice on 19 August Mr Moore was not notified of the application. One of his neighbours wrote to the Council about the application expressing concern about possible odours and traffic. 12. Mr Moore says that his house is 50 to 60 metres from the perimeter of the site which is the subject of his complaint. In between there is a river and an area of open space so his home does not directly abut the site and it is not adjacent to or opposite it. 13. The Council s Environment and Consumer Protection Service was consulted about the application and responded on 2 October The Assistant Head of Environmental Services said that he would like a condition requiring the applicant to agree an environmental protection scheme with Environmental Services before any work commenced. (Officer A told the Commission s officer that the consultation process has since developed and the Council s specialist officers, for example those who deal with noise issues, are now consulted on relevant planning applications.) 14. Officer B, a planning officer, became the case officer in He told the Commission s officer that the company were operating from the site by 1998, despite having no planning permission for the use. The date operations began is not recorded on the Council s planning files. 15. Officer B told the Commission s officer that transport assessments were a key issue and the company had not been forthcoming with all the key information required by the Council. That caused significant delay in processing the planning application. 4

7 16. Although the Council s Environment and Consumer Protection Service had been consulted on the August 1997 planning application, Officer A told the Commission s officer that there was no consultation with the Council s Environmental Health Service prior to the company s move to the site. He said that the potential for the creation of nuisance should have been taken on board. In its comments on the factual part of my report in draft the Council says that it did not encourage the company s move to the site in advance of the planning application being determined. It was at their own risk. Officer B had no knowledge of the company s intention to move at this time. 17. On 24 June 1999 an environmental health officer sent a memorandum to Officer B. He said that there were two problems of noise nuisance associated with the site. One was noise from night-time activities affecting properties in Mr Moore s road. The other was noise affecting those living near the other end of the site. The environmental health officer suggested putting a condition on the planning permission restricting all noisy activities to 8am to 5.30pm Monday to Friday and 8am to 1pm on Saturdays. He also suggested that it might be worth adding a condition with regard to odour nuisance, particularly with regard to styrene. 18. Complaints to Environmental Health were made by various individuals and through area community meetings attended by local Councillors. On 13 April 2000 a local resident (not Mr Moore) complained about noise nuisance from extractor fans. The Council carried out noise monitoring on 18 May Another local resident made a similar complaint on 25 May Investigating officers who visited the site to assess the situation found that equipment such as extractor fan systems had been brought from other sites and placed outside buildings in an ad hoc fashion. The Council s officers discussed the complaints with the company s local management on 6 June 2000 and offered to undertake noise surveys on all equipment on site and its impact on residential properties nearby. On 8 June 2000 the Council received a complaint about excessive noise from the factory until 4am. 19. After investigating these complaints the Council s environmental health officers came to the view that night working would be a problem. They considered that the noise levels problem would be manageable in the day because of background noise levels from, for example, road traffic. 20. On 7 September 2000 the Council granted planning permission. Conditions were attached to the planning consent. Condition 4 stated: Within six months of the date of this notice the developer shall bring into operation an environmental protection scheme which has previously been submitted to and approved in writing by the Local Planning Authority. The scheme shall deal with measures to prevent noise and odour pollution and should include the type, location and soundproofing of all existing and proposed extraction units and external plant and machinery; the hours of 5

8 operation and the location within the site of the various industrial processes associated with the use being undertaken. 21. An environmental protection scheme was not submitted to the Council within six months of 7 September 2000, and to date an adequate scheme has not been submitted. Further planning applications 22. The company operating the site submitted a number of more minor planning applications after 7 September 2000 as various elements of the industrial site were modified. (i) (ii) (iii) (iv) On 21 September 2000 planning permission was granted for the use of an industrial building on the site for a production facility. An environmental protection scheme condition, to be implemented before commencement of development, was attached to the planning permission. On 16 October 2000 planning permission was granted for the construction of a loading bay and conversion of a store into offices. On 2 November 2000 planning permission was granted for the erection of a storage building. No environmental protection scheme condition was attached to these planning permissions. On 10 September 2001 planning permission was granted for single storey extensions to a proposed building to provide storage, unloading and toilet facilities. A similar environmental protection scheme condition, to be implemented before commencement of the development, was attached to the planning consent. On 11 October 2001 planning permission was granted for a single story building. An environmental protection scheme condition was attached to this planning permission. The Council does not consider that the environmental protection scheme submitted by the company adequately covers all aspects of operations. In any event it was not submitted within the prescribed period. Residents noise complaints to the Council 23. Local residents complained to the Council about building noise on site and on 6 November 2001 a complaint was made about a vibrating hum. On 12 November 2001 Officer A attended an area committee meeting about the noise from the site. 6

9 24. Officer A told the Commission s officer that he investigated whether or not there was a statutory nuisance at the company s site. Meetings with the company s management took place on 6 June, 26 October, and 8 November Officer A told them they must reduce the noise levels on site. Officer A offered to monitor the noise and to make recommendations. Officer A told the Commission s officer that the noise subsequently reduced by 7 to 10 decibels (db (A)) and that by 2006 the noise level was mainly below 60 db(a). He said that the reduction in noise had required significant investment by the company. He said that, initially the company did not work on site after 10pm. Officer A said that he had always maintained an objection to the company working at night time. This has been contentious, and the company has told him that its boilers needed to operate through the night to maintain a constant temperature. 25. Officer A told the Commission s officer that the company had changed its boilers which made a difference. Several other pieces of equipment have been changed but this has not removed the noise. The dates of these changes cannot be ascertained as the Council s files cannot be located. Officer A said that the company has installed more equipment as it has expanded on the site. This expansion has taken place during the same period that improvements to equipment have been carried out. 26. On 25 February 2002 a local resident complained to the Council about a loud grinding/engine noise through the night. On 19 March 2003 Officer A visited the site at night to measure noise levels from the boilers. Complaints about noise from equipment on site were received by the Council on 18 July 2002 and 14 July On 15 August 2003 Mr Moore complained to the Council about noise from forklift trucks and fans. On 8 January 2004 a local resident complained about a humming noise thought to be coming from the site. 27. Officer A has carried out noise surveys to analyse the noise being produced on site. On 21 April 2004 noise recording equipment was placed in Mr Moore s garden for five days. The survey results showed that the noise level dropped by about 10dB when the company switched fans off at 1am. On 27 April 2004 another local resident complained about noise and dust from the site. 28. Officer A continued to object to night time working at the site but the company insisted that it did not work at night. Officer A told the Commission s officer that he considered that ambient noise masked the noise from the site up to 10 pm but disturbance of sleep was unacceptable. He also considers that work should start later on Saturdays and there should be no working on Sundays and Bank Holidays. 29. Local residents complained to the Council about humming noises from the site on 14 June On 10 November 2004 Officer A visited a street near the site and noted that he could hear the noise from an extraction fan system. He contacted the company who told him that they had ordered a silencer for the problematic fan. Officer A visited the site at midnight on 30 January 2005 and found all was 7

10 quiet. On 1 February 2005 Officer A toured the site and identified a number of noise sources located in the open. He suggested to the company that they should conduct a noise survey of each individual fan. Following a complaint from a local resident, Officer A visited the site on 8 August 2005 and noted that it was not as noisy as on previous occasions. He telephoned the company s representative regarding night time working. The representative said that he was not aware that the factory was working at night but would investigate. 30. On 16 February 2006 Officer A spoke to Mr Moore about his complaints. Mr Moore said he would keep Officer A informed of noisy events at the site. 31. Officer A carried out investigative visits on 16 March and 5 April He could not hear noise on the first occasion. On his second visit he could hear noise from the site but his notes state that it was not a nuisance. 32. Mr Moore told the Commission s officer that the Council carried out a second noise survey at his home in April/May 2006 and he received a copy of the results. He said that the average noise level recorded was 50 db (A) and the lowest noise level was about 40 db (A). According to Officer A s records the results were inconclusive as to whether or not there was a statutory nuisance. 33. On 18 July 2006 the Council received a complaint from another local resident about noise from extractor fans. Officer A met the company s representative that day to inform him of the complaints. The company undertook to keep improving the environment. 34. During April and May 2007 Mr Moore and other local residents complained about noise at night from the site. Noise complaints Council officer s conclusions 35. Officer A told the Commission s officer that he did not consider that an abatement notice was justified. He has not found a statutory nuisance. However, he said that he had reached a view on what could reasonably be required of the company taking account of both the needs of the company and local residents. He said that if a similar application were to be made in 2007 he would have recommended the submission of a noise assessment by the applicant and the imposition of a limit on the hours of work and noise level at the boundary of the site. Odours 36. Officer A confirmed to the Commission s officer that the Council is responsible for controlling authorised processes and that his colleagues have carried out regular visits to the site. He said that emissions from the site are controlled in a welldefined process. Odour emissions have been dealt with by the Council s authorised processes officer. Mr Moore told the Commission s officer that the 8

11 doors to the buildings on site are often left open so the extractors do not work properly. He says that he continues to experience odours from styrene, acetone and fibreglass resin. Formal complaints process 37. I received Mr Moore s complaint on 19 September I asked the Council to put his complaint into its complaints process. The Council investigated his complaint at stage one of its complaints procedure and then wrote to Mr Moore on 20 November The Council told Mr Moore that it had become apparent that there was no up to date management plan for the processes on site. An enforcement file had been set up and the company s actions were being investigated. The Council also told Mr Moore that the Council had carried out all necessary neighbour notifications when dealing with planning applications on the site. As he did not live immediately adjacent to the site the Council had not included him in the notification process. 38. Mr Moore was dissatisfied with the Council s response and the Council agreed to consider his complaint at stage two of the complaints procedure. 39. Mr Moore told the Commission s officer that the Council visited him in November or December 2006 when the company was working 24 hours a day and noise measurements were taken. Mr Moore says that he requested the results of the Council s noise measurements but they have not been sent to him. 40. On 15 January 2007 a senior planning officer sent the Council s stage two response to Mr Moore. The officer said: It appears that an Environmental Protection Scheme may not have been submitted within the prescribed period, and I acknowledge that the City Council was to some extent responsible by not ensuring that there is an up to date Environmental Protection Scheme. However, I am satisfied that appropriate actions are being put in place to remedy this situation. I can inform you that [Officer C] is meeting with a representative of [the company], and [Officer A] to progress the matter. 41. The officer concluded that Mr Moore s complaint about the Environmental Protection Scheme should not be upheld. He apologised that the Scheme was not actioned as it should have been but he said that he was satisfied that it was being addressed and he would ensure Officer C, a planning officer, kept Mr Moore informed. He concluded that Mr Moore s complaint about neighbour notification should not be upheld because the Council had followed its stated policies on neighbour notification. 42. Officer C wrote to Mr Moore on 17 January He said that he had been advised by Officer A that there had been a continuing improvement in the 9

12 environmental conditions on site over the last two to three years. These improvements came about through the company s own initiatives and in response to pressure from the Council. Officer C said that Officer A acknowledged that there might still be room for some improvement. Officer C said that he and Officer A had met a representative of the company on 16 January 2007 and that the company had undertaken that it would submit an environmental protection scheme to the Council within a month. Recent events 43. Mr Moore remained dissatisfied and returned to me with his complaint. One of the Commission s officers spoke to Mr Moore on 14 February He told the Commission s officer that he had been woken up at 3.25 am by loud banging on the site. He found that skips were being emptied at 4.00 am. He reported this to the company but he told the Commission s officer that the company s management did not believe him so he filmed the process. He said that the hours for emptying the skips were then changed. 44. The Council received an environmental protection scheme from the company on 6 February The company has informed the Council that, with regard to odours, it operates under the Pollution Prevention and Control Regulations, authorised and monitored by the Council. The company said that their permit shows the position of all extraction units, annual emission measurements and daily olfactory checks. Following negotiations the company amended its scheme and a revised version was received by the Council on 12 March. This scheme has not been approved by the Council. 45. On 4 April 2007 Mr Moore sent an to Officer A. He said that on Saturday 24 March 2007 metallic waste was being disposited into skips 30 metres from his property at and that this continued for several hours. He said that fans were running from about to approximately. Mr Moore said that on Sunday 25 March fans were running from about until On 26 March to 29 March 2007 he said that fans were running from until On 30 March he was awoken by a fan starting at which was switched off about 15 minutes later. On Saturday 31 March Mr Moore said that fans were run from to and on Sunday 31 March from to He said that from 2 April 2007 the fans had not been shut down at night from Monday to Thursday until 22: Officer C wrote to Mr Moore on 10 May 2007 following a meeting with the company s representative on 19 April He said that the Council had recommended to the company s representative that the company should agree to work from 7.00 or 7.30am to 10.30pm on weekdays and 8.00am to 4pm on Saturdays with no working on Sundays or Bank Holidays. The Council also requested no skip movements or deliveries before 7am on weekdays. He said that the company had not agreed to these restrictions as it was in a period of unprecedented growth although it had offered some alternative suggestions 10

13 which Officer C said should result in some improvement. Officer C said that he was examining the comment made by the company about the impact on its business of hours of work restrictions and he would assess how much this should be allowed to influence the controls that the Council had in mind. 47. Officer C arranged to meet Mr Moore at his home on 5 June Mr Moore explained his concerns about noise, dust and other pollution. 48. Officer C told the Commission s officer on 12 July 2007 that he felt the Council had gone as far as it could informally and a decision would have to be reached as to whether the Council should take enforcement action. The Council considers that it has a period of up to ten years in which it can take enforcement action. 49. On 16 August 2007 Officer C wrote to the company. He said that the environmental procedure submitted in March 2007 fell well short of the scheme the Council required. He said that unless the company submitted an adequate environmental protection scheme by 17 September 2007 he would have no alternative but to refer the matter to the Council s legal department with a view to progressing appropriate legal action against the company. The Council s concerns relate in particular to the hours of work restrictions and not to odour issues. An adequate environmental protection scheme was not submitted by 17 September Mr Moore told the Commission s officer that he complained to the Council on 17 September about noise nuisance, in particular recent loud metallic banging on Saturday and Sunday mornings from to and noise from extractors during evenings and weekends. He says that he experienced this noise on three weekends in September On 17 October 2007 the Council said that it had undertaken investigations in the last four weeks and no statutory nuisance had been witnessed. However, the Council says that it will contact Mr Moore regarding the odour and noise nuisance that is continuing to disturb him, investigate his concerns and assess whether there is statutory nuisance. If a statutory nuisance is substantiated, the Council says that it will issue an Abatement Notice. 52. On 18 December 2007 Officer C told the Commission s Officer that a Breach of Condition enforcement notice had been drafted and would be served before Christmas or early in the new year. Conclusions 53. Councils do not have resources to monitor compliance with all planning conditions and it is important to target resources appropriately. But in this case, because of the number of complaints received about the company s operations, the Council should have monitored its compliance with planning conditions to help protect the amenity of those living nearby. Here the Council decided that it 11

14 was necessary to attach conditions to the planning permission to prevent environmental problems from occurring. When those problems did indeed occur, it was reasonable for members of the public to expect the conditions to be enforced. I consider that the Council should have acted much sooner to secure implementation of an adequate environmental protection scheme. Its failure here was maladministration. 54. Had that been done in the early years of the company s operation I cannot say whether or not the running of the site would have been nuisance-free from Mr Moore s point of view. Much would have depended on the attitude of the company. But, had the Council acted sooner to secure an adequate environmental protection scheme, I consider that it would have had a stronger hand in requiring the company to improve matters; and on balance, I conclude that the action taken to control noise at the site would have been more effective than has in fact been the case. 55. I am pleased that a Breach of Condition enforcement notice has been drafted but I consider that there has been inordinate delay by the Council in getting to this point. Mr Moore has suffered a considerable period of uncertainty and the company still has not implemented an environmental protection scheme which the Council considers to be adequate. Although the Council does not consider that the noise as witnessed is a statutory nuisance, I believe that Mr Moore has suffered undue disturbance by noise for more than five years longer than he should have done had the Council acted sooner. He would also have had clear information about the environmental standards to be met by the company. 56. I do not consider that the Council s failure to notify Mr Moore of the planning application was maladministration in this case. Although he lives close to the site, his home does not directly abut it and neither is it opposite or adjacent to it. I consider that the Council has properly applied its policy in this respect. 57. I am aware that other residents besides Mr Moore have complained to the Council about noise from the site. The Council will need to consider any complaint made to it on its merits. But it should take into account, when responding to complainants, the remedy I recommend for Mr Moore below. Finding 58. For the reasons given in paragraph 53 above I find that there has been maladministration by the Council which has caused the injustice to Mr Moore described in paragraphs 54 and 55. To put things right the Council should now: 1. pay Mr Moore 5,000 in recognition of the injustice he has suffered and for his time and trouble pursuing his complaint with the Council and with me; 2. write to Mr Moore to inform him of the outcome of the most recent assessment of whether there is statutory nuisance; 12

15 3. keep Mr Moore informed of the Council s progress in securing an adequate environmental protection scheme; and 4. review the adequacy of its arrangements for planning enforcement, including resources allocated to the function, in order to satisfy itself that they are fit for purpose. J R White Local Government Ombudsman The Oaks No 2 Westwood Way Westwood Business Park Coventry CV4 8JB 21 January

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