Summary: There is no fault in a lack of notification or consultation about the construction of a new playground, because it was permitted development. We have discontinued our investigation of the resultant alleged noise nuisance, because this is a matter better addressed by the magistrates’ courts, and there is no evidence of fault in how the Council considered alleged anti-social behaviour. But there was fault in the Council’s complaint handling, for which it has agreed to formally apologise.

The complaint

1. I will refer to the complainant as Mrs G.
2. Mrs G complains about the Council’s decision to build a children’s playground close to the boundary of her property. In particular, she says:

• the Council did not notify or consult neighbours before building the playground;
• the playground creates a noise nuisance; and
• the playground attracts anti-social behaviour.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I reviewed Mrs G’s correspondence with the Council.
7. I also shared a draft copy of this decision with each party for their comments.

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What I found

8. Mrs G’s property backs onto a playing field. There is a footpath which bisects the field. For some years there has been a children’s playground on the field, but at some distance from Mrs G’s property, on the far side of the footpath.
9. In May 2019, Mrs G says the previous local authority (since amalgamated with others to form the Council) erected a site notice, explaining the footpath would temporarily be closed due to works to expand and improve the existing playground. However, in June, it became clear that a new playground was to be built on the other side of the field. The finished playground would be next to her boundary, and indeed would rely on her boundary hedge to form one side of the enclosure.
10. Mrs G then contacted local councillors, asking for work to be suspended while residents were consulted. She says she did not receive a response to this.
11. On 3 September, Mrs G wrote a letter of complaint to the Council. She said she was now suffering an unacceptable level of noise and anti-social behaviour (ASB) because of the proximity of the playground.
12. Mrs G complained the Council had not notified or consulted residents before making the decision to install the new playground, and said she had not given permission for it to use her boundary hedge as its perimeter. She also said the Council had wrongly claimed the hedge was its own, before accepting this was incorrect.
13. Mrs G said one local councillor had passed her concerns onto the Council, but there had been no response, and another local councillor had failed to respond entirely. She complained the Council had given no thought to the impact of the new playground on nearby properties, and again criticised the Council for failing to consult with residents. She asked for the playground to be moved away from her property.
14. On 7 July 2020, Mrs G wrote to the Ombudsman. She said she had had no response from the Council to her complaint.
15. Mrs G reiterated her complaint about the lack of consultation by the Council, and the problems she was experiencing with noise and ASB. She questioned the safety of the new arrangements, as she felt children were at risk from crossing the footpath to go between the old and new playgrounds.
16. Mrs G said the noise and ASB continued from early morning to late evening, and including drug abuse, fighting, bad language and items being thrown over the hedge into her garden. She said the Council had recently refused permission for a nearby coffee shop to have longer opening hours, due to a potential increase in noise and ASB, and asked why the same principle had not been applied to the playground. She said she and her daughter were now unable to use her garden because of the noise from the playground.
17. Mrs G expressed a desire for the playground to be moved away from residents’ properties, and said she believed the existing playground was big enough to host the new equipment as well. Mrs G said she had been told the previous authority had rushed to complete the playground before its amalgamation into the Council.
18. Mrs G complained again about the confusion over the ownership of the boundary hedge, and the fact she had not given permission for the Council to use it as part of the perimeter. She said she had been unable to maintain the hedge since the playground’s creation.
19. Mrs G also complained about the lack of engagement by the local councillors.
20. As the Council had not yet addressed Mrs G’s complaint, we referred it back to it as premature.
21. The Council replied to the complaint on 18 December. It apologised for the delay.
22. The Council explained the work to the playground was part of plans which had been adopted several years before by the previous local authority. The previous authority’s consultation policy was no longer available, but the Council had spoken to a senior officer from the previous authority, who had confirmed the policy had not required public consultation on every proposal.
23. The Council said work to refurbish or renew play facilities had taken place on sites which were specifically designated for that purpose. There was a need for play facilities in the area and no alternative sites had been considered suitable. The Council had kept two local councillors informed of the work. It also said that, historically, there had been play facilities on both sides of the footpath.
24. The Council explained the work benefitted from permitted development rights, as the size of the facilities fell below the requisite threshold. This meant the Council had not needed to seek planning permission for the playground.
25. The Council said it had received no valid complaints of ASB about the playground since April 2019. Its ASB team had registered the reports Mrs G had raised over the summer, and had “made themselves available to follow up concerns”. The ASB team had also advised Mrs G to report any incidents to the police, which had made visits to the site as part of its routine monitoring.
26. It also said a member of the Council’s Environmental Health team had visited residents and explained its normal noise nuisance investigation process; but it had not received any completed diary sheets in response, and had closed the case.
27. The Council said it frequently inspected the play equipment and had noticed no damage from misuse, and nor had these visits generated any reports of ASB such as graffiti. A Council officer had also visited the site in December and found the playground was not in use.
28. The Council reiterated the development of the new playground had followed a democratic process. It said it had found no evidence the playground was not being used as intended, by small children, and that there was no requirement in law for there to be a “buffer” between a playground and nearby housing.
29. It theorised that Mrs G’s complaint had been triggered by a natural increase in the legitimate use of the playground since refurbishment, and that Mrs G and other residents had been accustomed to less noise. Such legitimate use by small children was not ASB. The Council acknowledged the playing field itself might attract some ASB, and again encouraged Mrs G to report this to the police and to the Council’s ASB team.
30. Mrs G submitted a further complaint on 4 January 2021. She criticised the delay in the Council’s stage one response, and asked whether the Council had undertaken a noise assessment before creating the new playground. Mrs G repeated her comments about the nearby coffee shop, which the Council had refused to allow longer opening hours because of potential noise and ASB.
31. Mrs G reiterated her complaint about the noise. She said the Council had opened a noise nuisance investigation previously, but had closed it in January 2020 because it was not the peak season for use of the playground. The Council had suggested reopening the complaint in the spring and summer, but the playground had then been closed anyway because of the COVID-19 pandemic.
32. Mrs G noted the officer’s recent visit to the playground, but pointed out the visit had been at a time when the noise was limited because older children were in school. She said the noise was considerably greater at other times, and reiterated she could not use her garden at these times.
33. Mrs G said the fact the Council had posted information about the new playground on its website was inadequate to notify residents, and said even a former local councillor had not been properly aware of the Council’s plans. She again considered the existing playground had space to host the new equipment.
34. Mrs G criticised the two local councillors for failing to engage with residents, or have the development of the new playground suspended to allow for consultation.
35. Mrs G said she had not seen police patrolling the park, and that, if they did so, it would only be during the day. The Council’s ASB team had told Mrs G that the use of the park by older children did not constitute ASB. She complained the boundary hedge did nothing to muffle the noise from the playground, and said it had been vandalised by playground visitors. She also complained again about the Council’s incorrect statement it owned the hedge.
36. An officer from the Council’s environment service replied on 27 January. He explained he could not respond to Mrs G’s complaints about ASB, as this fell to a different Council area, but noted the ASB team had said it would contact Mrs G separately.
37. The officer explained he had reviewed the Council’s stage one response, and had spoken to the author and other officers involved in the project. He said he was satisfied there had been an adequate response to Mrs G’s complaint and had nothing further to add. The officer referred Mrs G back to the Ombudsman if she wished to pursue her complaint further.
38. Mrs G referred her complaint back to the Ombudsman on 8 February.

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Legislative background

Permitted development

39. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. This means the developer does not need to seek formal planning permission.

Statutory nuisance

40. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
41. Typical things which may be a statutory nuisance include:

• noise from premises or vehicles, equipment or machinery in the street
• smoke from premises
• smells from industry, trade or business premises
• artificial light from premises
• insect infestations from industrial, trade or business premises
• accumulation of deposits on premises

42. 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 premises; and / or
• injure health or be likely to injure health.

43. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.

Section 82 of the EPA

44. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.

Anti-social behaviour

45. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
46. The Anti-social Behaviour, Crime and Policing Act 2014 introduced six new powers for agencies involved in tackling ASB. These are:

• the power to issue community protection notices (CPN);
• the power to make a public spaces protection order (PSPO);
• the power to close premises for a specified period of time;
• a civil injunction (a court order, which can be made upon application by the local authority or other agencies);
• a criminal behaviour order (a court order made following a conviction); and
• the power for the police to disperse people from a specified area.

PSPO

47. A council may make a public spaces protection order (PSPO), if it is satisfied that activities carried on in a public area are detrimental to local quality of life, or if it is likely the activities will have such an effect. The PSPO should specify the area and the activities to which it applies.
48. For example, if an area experiences rowdy behaviour because of drunkenness, a PSPO can be made which requires people to surrender open alcohol containers (cans/bottles etc) on request. Failure to comply with a PSPO is an offence.
49. Councils should consult with the police before making a PSPO. The order has a maximum duration of three years, but it can be extended by another three years before it expires. There is no limit on the number of times the order can be extended.

Community Trigger

50. The 2014 Act also introduced a mechanism to review the handling of complaints of anti-social behaviour (ASB). This is commonly known as the ‘Community Trigger’ process. When a person requests a review, relevant bodies (which may include the council, police and others) should decide whether the local threshold has been met.

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Analysis

51. There are three broad elements to Mrs G’s complaint: planning, noise, and anti-social behaviour. For the sake of clarity I will address each in turn.

Planning

52. Mrs G complains the Council did not consult or notify local residents of the proposed works. She also complains the playground could have been located elsewhere on the field, for example by installing the new equipment in the existing playground.
53. The Council has explained the work to the playground qualified as permitted development, because the play equipment was all below the required height. Permitted development is work which has already been granted planning permission by Parliament, and so the normal planning process (including neighbour notification and consultation) does not apply.
54. I appreciate why Mrs G would like to have been notified of the proposed development. And, although not a formal part of the process, I do note there was nothing stopping the Council from informally notifying neighbours, and so that arguably could have been done here. But such decisions are for the Council to make, and I cannot find fault that it did not.
55. Mrs G also questions why the play equipment could not have been installed in the existing playground, which is sufficient distance away from residents’ house to mitigate the nuisance.
56. I acknowledge Mrs G’s point here. But our role is solely to identify and address administrative fault in the Council’s decision-making process. We cannot involve ourselves in the relative merits of different proposals, or promote a particular design. The Council has explained it has located the playground there for historical reasons, and because it considers it the most appropriate site, and again, this is a decision for it to make. I cannot find fault for this reason.
57. Mrs G has drawn a negative comparison between the Council’s decision to create the new playground, and its refusal to allow a coffee shop to have longer opening hours because of potential noise and ASB. However, I am not persuaded this is a meaningful comparison, as they relate to two very different proposals. Each planning decision must be made on its own merits, and the Council’s decision about the coffee shop’s opening hours does not mean it could not also decide to create the new playground where it did.
58. Mrs G has also complained about the Council’s decision to use the boundary hedge as part of the playground’s perimeter, and the confusion over the hedge’s ownership. But questions of property ownership are a civil matter which can only be addressed by the courts. The Ombudsman has no power to investigate or rule on such matters.
59. I note Mrs G has also complained two local councillors did not inform residents of the upcoming development, despite their duties to their constituents.
60. The Ombudsman can only investigate the actions of councillors when they act as part of the Council’s administrative mechanism; for example, by making decisions on a planning application as part of the Council’s planning committee. We cannot investigate councillors acting in their pastoral role, as their constituents’ representatives. Mrs G’s complaint falls into the latter category and so is not something I can look at.
61. If Mrs G feels the councillors have breached the Code of Conduct, she may make a complaint specifically about this to the Council.
62. I find no fault on this element of Mrs G’s complaint.

Noise

63. Mrs G complains about she is suffering a noise nuisance because of the location of the playground. She says, at peak times, the noise prevents her from being able to use her garden.
64. I should clarify I have chosen to separate Mrs G’s complaint about noise from the legitimate use of the playground, by small children and their parents, from her complaints about its misuse by older children and teenagers. I will address the latter point in the next section.
65. The law says the Ombudsman should generally not investigate a matter, where the complainant has the right to take the matter to court.
66. As I have explained, section 82 of the EPA gives complainants the right to apply to the magistrates’ court, where they consider they are suffering a statutory nuisance. If the court is persuaded, it can order the responsible party to abate the nuisance.
67. Local authorities also have a duty to investigate and, where appropriate, require the abatement of a nuisance. However, in this case, as owner of the playground, the Council is also the party responsible for the nuisance Mrs G alleges. This creates an obvious difficulty, because the Council cannot serve itself with an abatement notice.
68. Under such circumstances, we consider it appropriate for complainants to use their right under s82 to approach the magistrates’ court, rather than making a complaint to us. This is because, unlike the Ombudsman, the court can decide whether there is a statutory nuisance, and order the Council to take steps to abate it.
69. For this reason, I have discontinued my investigation of this element of Mrs G’s complaint.

Anti-social behaviour

70. Mrs G complains the location of the playground attracts ASB. She says the play equipment is misused by older children and teenagers, and that the playground has been used for drug-taking. She also says the hedge has been vandalised and items thrown over it into her garden.
71. The Council says it has not received any valid reports of ASB at the playground since April 2019. It has not seen any evidence of ASB, such as graffiti, during its regular maintenance visits to the site. However, it has encouraged Mrs G to report incidents to the police and to its ASB team. Separately, Mrs G has confirmed the police have designated an officer to address residents’ concerns, who had recently made some visits to the site.
72. The Council has a general duty to take steps to tackle ASB, and it has a number of powers to facilitate this. But, depending on the circumstances, the police may be better placed to address some issues – for example, the police are responsible for patrolling, and have the power to disperse groups of people from a particular area, which the Council does not.
73. The Council does have the power to issue community protection notices (CPNs), requiring individuals to refrain from particular behaviour. But it does not appear this would be useful here, as the Council would first need to identify the perpetrators of the alleged ASB.
74. Mrs G says she believes residents should be protected by the public spaces protection order (PSPO). However, this is a misconception. There is no single standing PSPO which protects all public spaces; rather, local authorities can create individual PSPOs, to cover specific activities in specific locations.
75. PSPOs are typically used to tackle well-established ASB in larger areas, by making specific activities unlawful – for example, where a town centre experiences frequent drunken behaviour, a PSPO can make it an offence not to surrender open alcohol containers to the police or other designated officers, upon request.
76. On balance, therefore, I accept the Council’s position that Mrs G should rely on the police, at least in the first instance, to address the alleged ASB from the playground; this is because the police appear to be better-placed to address the type of issue she is raising. However, I would expect the Council to liaise with the police on any reports it receives from Mrs G, and, where appropriate, consider using its ASB powers.
77. Mrs G also has the right to request a review of how the Council (and police) have handled her complaints of ASB under the ‘Community Trigger’ process.
78. The Community Trigger provides complainants with a right of review, where they feel their reports of ASB have not received an adequate response. The thresholds for accepting a review are agreed locally, and so can differ from area to area; although in the Council’s case I can see (from its website) the threshold is that a person must have made three reports of ASB within six months, among other criteria.
79. I do not know whether Mrs G’s case has (yet) met this threshold, but she may wish to consider requesting a review if she remains dissatisfied with the handling of her complaints.
80. I find no fault in this element of Mrs G’s complaint.

Complaint handling

81. I will also comment on the Council’s handling of Mrs G’s complaint.
82. Mrs G first made a formal complaint to the Council in September 2019. Having received no response, she then approached the Ombudsman in July 2020. We referred the matter back to the Council as premature, and the Council finally sent its response in December.
83. This means Mrs G waited approximately 15 months for a response to her complaint, which is an exceptional delay.
84. I appreciate the effect of the COVID-19 pandemic on local authority services, and so it is possible this may explain some of the delay in its response to the complaint. But Mrs G’s complaint had already been outstanding for approximately six months, even before the Government announced the initial lockdown in March 2020, and so I do not consider the delay in the Council’s response can simply be explained as a result of the pandemic.
85. I do consider the Council’s stage one complaint response to be of reasonable quality, and it is evident the investigating officer took some time to produce a detailed response – for example, he refers to contacting an officer from the previous, defunct authority as part of the investigation. This is positive.
86. But I cannot overlook the clear fault represented by the delay here. This has caused Mrs G an injustice, because she was entitled to receive a timely response to her complaint, regardless of its outcome.
87. Separately, I also note the Council’s stage two response said it could only answer the environmental health aspect (noise) of Mrs G’s complaint, and that she would receive a separate response from the ASB team. I have seen no evidence this was forthcoming.
88. The stage two response also makes no reference to the planning aspect of Mrs G’s complaint.
89. I must question why the Council could not provide a co-ordinated stage two response here. I appreciate Mrs G’s complaint covers several different disciplines, but this is not particularly unusual. And I note the Council did provide a co-ordinated response between the different areas at stage one.
90. I make a further finding of fault here, and of injustice, again because of the frustration this has evidently caused Mrs G.
91. I have considered the appropriate remedy for these injustices. I am not persuaded anything substantive has been lost by the Council’s poor complaint handling, as it appears its response would likely have been the same, even if it had been more timely or comprehensive.
92. However, and while I note the Council has already apologised for the delay as part of the stage one response, given its magnitude, I consider a separate, formal letter of apology would be appropriate here. The apology should acknowledge the severe delay in the Council’s stage one response, as well as the failure to give a comprehensive response at stage two. I make a recommendation to this effect.

Conclusion

93. I have found no fault in Mrs G’s complaint about the planning aspects of the playground. The Council had no duty to notify or consult with local residents because the work was permitted development. It is not my role to question the merits of the design, and the Ombudsman has no power to investigate matters of land ownership. Nor can we investigate a complaint about local councillors acting in their pastoral role.
94. I have discontinued my investigation of Mrs G’s complaint about noise from legitimate use of the playground. This is because Mrs G has the right to take the matter to the magistrates’ court under s82 of the EPA, which we consider to be a more appropriate body to address her concerns.
95. I have found no fault in the Council’s handling of the ASB aspect of Mrs G’s complaint. The Council has asked Mrs G to rely on the police, in the first instance, and I do not consider this inappropriate under the circumstances. Mrs G has the right to request a review of the handling of her ASB reports by both the Council and police under the Community Trigger process, if and when she meets the local criteria.
96. I have found fault with the Council because of the severe delay in its stage one response to Mrs G’s complaint, and because of the partial stage two response. The Council should apologise for this.

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Recommended action

97. Within one month of the date of my final decision, the Council has agreed to send Mrs G a formal letter of apology for its complaint handling. The apology should account for the delay in its stage one response, and the failure to give a full response at stage two.

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Final decision

98. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman