Summary: We will not investigate Mr X’s complaint about the Council granting planning permission for a nursery playground near his property, nor how it investigated noise from the site and advised of its powers. There is not enough evidence of Council fault in its planning or noise investigation processes to justify an investigation.

The complaint

1. Mr X lives near a children’s nursery premises. He complains the Council:
1. granted planning permission to the business for a playground next to the end of his garden;
2. failed to properly investigate his complaints of noise from children playing in the playground;
3. incorrectly determined the Environmental Protection Act 1990 (EPA 1990) did not allow it to take action where the noise complained of is from children playing.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

4. I considered information from Mr X, relevant online planning documents and maps, the Council’s website, and the Ombudsman’s Assessment Code.

Back to top

My assessment

5. We are not an appeal body. This means we do not take a second look at decisions to decide if they were wrong. Instead, we look at the processes an organisation has followed to make its decisions. If we consider it followed those processes correctly, we cannot question whether the decisions were right or wrong, even if someone disagrees with them.
6. Mr X’s complaint raises issues about the Council’s planning process. The Council received and considered the retrospective planning application for the playground from the applicant. Mr X and others made representations as part of the public consultation. The planning officers considered Mr X’s objections, including concerns about noise. They consulted with their Environmental Health team to consider those noise issues. Officers took account of the location of the development within a commercial area, its role in providing services to some local residents, and balanced these issues against amenity concerns. They took the view, with input from Environmental Health officers, that restrictions on the use of the play area would be applied, using planning conditions to set operating hours and stop use of amplified music, and a management plan setting out staffing ratios. Officers determined these limitations would ensure the site’s use would not result in material harm to residents’ amenity.
7. Officers assessed the relevant information and comments to reach their decision. They followed the relevant planning process to decide the application and place limitations on the site’s use. There is not enough evidence of Council fault in its planning decision-making process to justify us investigating. We recognise Mr X disagrees with the decision and outcome of the planning process. But it is not fault for a council to properly make a decision with which someone disagrees.
8. Mr X’s complaint is also about the Council’s investigation into the reports of noise nuisance from the development. Councils’ noise enforcement powers are discretionary. As with the planning process and decision, we may only go behind a council’s decision where there is evidence its decision-making process has been flawed, and but for those errors a different decision would have been made. We also cannot replace with our or someone else’s opinion a council’s decision where it has been properly reached.
9. The Council visited the playground site and assessed the noise during its operating hours from nearby. They did not witness or record a statutory noise nuisance, the kind of noise which could have given them grounds to enforce. Based on the evidence officers gathered, the Council decided not to take further action. We note Mr X says noise reflected off the nursery building has not been measured because officers have not assessed the noise from his property. Officers saw the site’s location and setting when they visited. They say the measurements they made much closer to the site than Mr X’s property did not amount to a statutory noise nuisance. They determined the distance between Mr X’s property and the site, with trees and plants between, would mean the noise’s volume at his property would be lower than those measurements of non‑statutory noise.
10. In making their decision not to enforce, the Council’s officers collected relevant information and followed their investigative process. They were entitled to use their professional judgement to make their decision not to take further action, and to decide how they investigated the noise. There is not enough evidence of fault in the Council’s decision-making process to warrant us investigating.
11. We recognise Mr X disagrees with both the Council’s planning decision and the outcome of the Council’s noise investigation. But there is not enough evidence of fault in either process to justify us going behind those decisions and investigating. It is not fault for a council to properly make a decision with which someone disagrees.
12. Mr X considers the Council can take action under the EPA 1990 or other laws where there is noise from children playing. We note from the Council’s online information that it advises its officers cannot take action against such noise. The Council might consider clarifying its information to specify that its advice applies to situations where children are making noise while playing in public areas such as in parks or streets.

Back to top

Final decision

13. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the Council’s planning process nor in its assessment of and responses to the noise reports to warrant us investigating.

Back to top

Investigator's decision on behalf of the Ombudsman