London Borough of Bromley (19 003 471)

Category : Other Categories > Other

Decision : Upheld

Decision date : 04 Dec 2020

The Ombudsman's final decision:

Summary: Ms D complained the Council failed to exercise sufficient scrutiny over aircraft movements at Biggin Hill Airport. We uphold the complaint finding the Council delayed in replying to Ms D and did not fulfil certain commitments given to her. We find this caused her unnecessary time, trouble and frustration. The Council has agreed to remedy this injustice by providing Ms D with an apology and further response to those outstanding matters identified in this statement.

The complaint

  1. I have called the complainant Ms D. She complains the Council is failing to exercise sufficient scrutiny over aircraft movements at Biggin Hill Airport (‘the Airport) which it owns and leases. In particular Ms D complains about:
  • the operation of ‘track keeping monitoring’ software used by the Airport which records aircraft movements; Ms D questions its accuracy and says it does not pick up all helicopters that fly over her home;
  • the movements of out-bound flights which Ms D says often turn ‘too late’ over the estate where she lives; she understands the designated flight path from the airport should avoid such overflights;
  • the movements of helicopters which Ms D says regularly overfly the estate where she lives.
  1. Ms D considers she suffers unwanted noise and disturbance from aircraft movements as a result of the above.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)

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How I considered this complaint

  1. Before issuing this decision statement I considered:
  • Ms D’s written complaint to the Ombudsman and any supporting information she provided in subsequent correspondence.
  • Replies to Ms D’s correspondence sent to her by the Council and further supporting information it sent to me in reply to my enquiries.
  • Information in the public domain available via the Council’s website or that of the Airport.
  • Comments made by Ms D and the Council in response to two draft decision statements setting out my thinking about the complaint.

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What I found

Background

  1. Local authorities do not have a statutory role in monitoring or enforcing against aviation noise (see section 79(6) Environmental Protection Act 1990). They do not have any jurisdiction over flightpaths entering or exiting airports.
  2. The Civil Aviation Act 1982 says local authorities have an “important representational role” to “represent the full range of issues relevant to their authority, including planning, economic and environmental interests”. The Act requires airports to consult with local authorities through airport consultative committees.
  3. The Council owns Biggin Hill Airport. It leases it to a private operator. It has no planning controls over the Airport because it has had an established use over many years. However, the lease contains a clause that the Airport must operate on a “good neighbour” basis. So, it must use its best efforts to exercise controls including the use of noise preferential routings.
  4. In 2015 the Council agreed a ‘deed of variation’ to this lease permitting the Airport opening for longer hours. The Airport agreed as a condition of this that it would also introduce a noise action plan (NAP). The deed of variation contained in turn references to a ‘management information letter’ (MIL). The MIL says that it sets out how the Airport “will implement the NAP”. The Deed of Variation says “the Landlord and Tenant agree to be bound by the terms of the MIL”.
  5. The MIL contains multiple clauses. I summarise those I consider the key clauses relevant to this complaint below, where the Airport:
  • has produced and agreed with the Council a set of ‘noise contours’ used to help monitor noise levels in its vicinity. The Airport commits to using ‘reasonable endeavors’ to stop noise levels exceeding levels described in ‘noise envelopes’ around the Airport at different times of day;
  • has agreed limits on total aircraft movements; on the types of aircraft which can use it and, on the noise produced by individual aircraft departing before 7:00am. The Airport also incentivises the use of noise suppression equipment on light aircraft;
  • publicises identified ‘noise sensitive areas’ and has a Code of Conduct with helicopter and light aircraft users attached as an Appendix to the MIL (see paragraph 12 below);
  • uses a ‘track keeping’ system to monitor that aircraft keep to agreed take-off and landing routes, described as ‘noise preferential routes’. The track keeping system is that used by major airports in the UK including Heathrow, Gatwick and Stansted;
  • monitors noise generated by aircraft movements to ensure it stays within the limits set by the Council. It has mobile noise monitoring equipment to aid investigation of individual complaints;
  • has a consultative committee (see paragraph 7 above) including representation from the Council. A sub-committee of the consultative committee reviews complaints about individual aircraft movements. Where it finds a pilot has not kept to agreed flightpath corridors or the code of conduct on overflying noise sensitive areas it can refer those to a Safety and Noise Abatement Review Board (SANARB). The SANARB can impose sanctions on pilots.
  • has sought permission from the Civil Aviation Authority (CAA) to re-route an arrival flightpath away from residential areas.
  1. The airspace around the Airport, including where Ms D lives, is registered as ‘Class G’ or ‘uncontrolled’ airspace. This means aircraft can fly over at a height of more than 1000ft or descend to a lower height for landing or take off.
  2. However, the Code of Conduct produced for light aircraft and helicopters using the Airport under visual flight rules says they should avoid overflying “all built up areas where safety considerations permit”. It says noise sensitive areas should not be overflown below 2,000ft. The Code also says these areas “should only be overflown when required pursuant to an air traffic control instruction”. The Code repeats that if aircraft overfly they should maintain an altitude of over 2,000ft, unless instructed differently by air traffic control. It says helicopters should “organise their flight profile so as to minimise noise on the ground and make use of the highest safe altitude when transiting to or from Biggin Hill Airport area, If possible, helicopters should rise to 1,000ft before crossing the airport boundary”.
  3. In addition, aircraft such as business jets are expected to follow the noise preferential route if departing the Airport. This means they should turn before passing over where Ms D lives.
  4. A flightpath for aircraft arriving at the Airport passes over or close to where Ms D lives. This is the flightpath the Airport committed to trying to re-route referenced in the MIL. The re-routing depends on approval from the CAA.

Ms D’s complaints

  1. Ms D lives on a residential estate around three miles from the Airport runway. It lies within a designated noise sensitive area. She acts on her own behalf and that of other residents on the estate when making representations about aircraft activity.
  2. In August 2018 Ms D wrote to the Council raising concerns about the following:
  • the accuracy of the track keeping system being used by the Airport. Ms D said that she considered the position of flights could be inaccurate by up to 500m when turning (the position of the aircraft not the altitude);
  • that aircraft routinely left it too late to adjust their flightpath on leaving the Airport along the noise preferrential route. This meant they flew close or overflew the estate when they should avoid this;
  • that helicopters regularly flew over the estate at less than 2,000ft;
  • that complaints made direct to the Airport about these matters had failed to uphold these concerns or result in action to resolve her concerns.
  1. Ms D’s letter drew attention to questions asked at a full Council meeting in July 2018 by a third party. These had also referred to alleged discrepancies in the track keeping system. The record suggests the Airport agreed the data recorded was not always correct. Ms D asked the Council to take a more active involvement in ensuring the Airport kept to the agreements set out in the MIL. She also suggested the Council could employ a monitoring officer to deal with airport matters. The July 2018 Council meeting recorded this was something under consideration and was an idea the Council initially proposed in June 2016.
  2. Despite chasing a reply, Ms D did not receive a response to her letter until July 2019. The Council apologised for the delay. I note that in further correspondence between August 2018 and July 2019, Ms D also referred to the proposed re-routing of flights referred to in the MIL.
  3. I summarise the Council’s response to Ms D as follows:
  • that it understood the tracking system used by the Airport to be accurate, using the same data as air traffic control across London. The equipment manufacturer had fitted and calibrated the equipment. Occasionally the equipment would record slight discrepancies in altitude recordings but not up to 500m;
  • the Council had now appointed an Airport Monitoring Officer (AMO). The Council would ask them to make personal observations on the effectiveness of the track keeping system;
  • it recognised not all pilots followed departure routes “as closely as they should” but the tracking system identified this and could help ensure compliance. The letter said the AMO would “analyse what is currently happening and contact the airport for their observations if this proves necessary”;
  • it also said the AMO would analyse helicopter flights in and out of the airport;
  • it updated on the progress of the re-routing of the flightpath which remained subject to CAA approval;
  • it said the Council expected the Airport to treat noise as a priority. It wanted “to achieve the best possible outcome for residents”.
  1. Ms D then wrote again to the Council in August 2019. She again raised concerns about the flight tracking system. She asked for contact details of the AMO. Ms D also said that not all helicopter flights appeared on the tracking system. Ms D enclosed recent correspondence with the Airport where she reported specific instances of flights she believed overflew the estate. I note here Ms D’s correspondence also referred to some historic issues of concern which are not relevant to this investigation.
  2. In September 2019, Ms D received details of the Council AMO. In October 2019 the Council wrote to her saying that “in the light of the concerns raised these will be raised at a senior level with the airport”. The Council said it would specifically raise concerns about the track monitoring equipment and helicopter movements. The letter also said the Airport had noise monitoring equipment which it could fit in Ms D’s garden to monitor the impact of aircraft noise on her.
  3. In November 2019 Ms D sent further information to the Council where she had reported a helicopter flying low. The airport SANARB had agreed this and said it would advise the operator of potential enforcement sanctions. But Ms D said the letter did not address the helicopter overflying the noise sensitive area.

The Council’s position

  1. In answer to my enquiries the Council has sought to clarify how it sees its role as landlord to the Airport. It says that cannot control or manage airspace in or around the Airport; a position it has confirmed with the CAA. It cannot act as a Regulator. But it does want to maintain a “strategic overview” of activity at the Airport and see that it fulfils undertakings. It expects the Airport to investigate specific instances of flying activity causing complaint and will encourage individuals to report their concerns direct to the Airport accordingly. But it will also answer enquiries from the public concerned about such matters.
  2. However, it says that in its dealings with the Airport it must be conscious the operator has the covenant of “quiet enjoyment” of the lease. The Council considers it has “very limited scope” to intervene if the Airport keeps to the terms of the lease. It must not act in a way that could be seen as applying “unwarranted pressure” on the Airport. The Council says it can, and does, talk to the Airport but “there is nothing in the lease or in the general legal framework which compels or enables us to, other than through the consultative committee”. It says: “the Council can only have input as a landlord if there is an issue with the lease. The Airport has a right to quiet enjoyment and would be entitled to disregard our input on anything not covered by the lease or a regulatory function. The NAP and the Deed of Variation are formally incorporated into the Lease, but the MIL is not, amounting to a statement of intent on the Airport’s part.”
  3. The Council has clarified it has employed a dedicated AMO on a part-time basis. It says this should not imply it did not monitor activity at the airport previously. Instead, other officers carried out the AMO’s role in the course of their duties. The AMO role includes:
  • co-ordinating with the Airport to address complaints from the general public regarding aircraft noise, pollution, odour, air quality and safety concerns;
  • attending regular meetings on behalf of the Council and engaging with local community groups/forums to address issues related to aircraft monitoring activity;
  • working closely with all internal and external partners to ensure an effective monitoring service.
  1. The Council considers there are a low number of complaints about aircraft movements associated with the Airport, given the number of movements. And that where it receives concerns it comments “this is a highly technical area where local resident understanding is limited".
  2. In terms of its communications with Ms D, the Council said it delayed replying to her correspondence sent in August 2018 for several reasons. These included the complexity of enquiries and the need for it to make enquiries with third parties. It also says there were internal communication misunderstandings. The Council also considers we should see Ms D’s correspondence in context, as she had sent extensive correspondence previously to the Council about the Airport, which it considered bordered on the vexatious.
  3. In responding to Ms D’s specific concerns, the Council says:
  • it considers the track keeping system to be accurate, relying on the assurance and verification provided by the Airport (see below);
  • it recognises there needs to be ongoing dialogue with the Airport about the impact of helicopter flights;
  • it is satisfied overall operations keep within the noise thresholds agreed and there has been an overall reduction in noise around the Airport.
  1. The Council has provided me with copies of various documents including:
  • correspondence exchanged with the Airport in July 2018 which discussed the effectiveness of the tracking system. The Airport advised localised topographical features could cause small discrepancies in altitude data, but unlikely to be significant. It has provided certificates showing when the manufacturer installed equipment and calibrated it;
  • further exchange of emails with the Airport in May 2020 where it appears recognised that certain flights may not record on the track keeping system for reasons beyond its control;
  • examples of correspondence it has had with third parties who have raised concerns or complaints about flights associated with the Airport;
  • correspondence with the CAA clarifying the law around regulation of airspace around the Airport (this has been shared previously with Ms D in response to a Freedom of Information Act request she made).
  1. The Council has said that its AMO has met with Ms D and is committed to further dialogue with her. It has sent me copies of emails exchanged recently between the AMO and Ms D further to a meeting they had in August 2020.
  2. I have also noted those minutes of the Airport consultative committee which are available online. These provide a regular summary of complaints made to the Airport about specific flights and show the numbers referred by the complaint sub-committee to the SANARB. The minutes also show the Airport produces quarterly reports to demonstrate it is keeping within the noise thresholds agreed in the MIL and associated documents.

My findings

  1. I have begun my consideration of this complaint by considering the position taken by the Council towards complaints about activity at the Airport. I find no fault in the Council’s position that it is not responsible for monitoring day-to-day flying activity. I agree it has no statutory role in monitoring the use of airspace or any such noise nuisance as may generally be caused by aircraft. It is also accepted the Council has no planning controls over the Airport.
  2. However, it is the owner and landlord of the Airport. And it has required the Airport to enter legally binding commitments with it. I find the lease, the Deed of Variation, the NAP, the MIL and the appendices to the MIL all form part of a package of measures requiring the Airport to monitor noise, flight movements and complaints associated with flying activity. I consider the Council wrong to suggest there is no potential sanction for the Airport for not complying with the MIL. This is because the Deed of Variation required it be ‘bound’ by the terms of the MIL. I also consider the Council is more than a mere consultee in monitoring adherence to these agreements; i.e. its role as owner and landlord gives it powers beyond that conferred by its membership of the airport consultative committee and sub-committee which investigates complaints.
  3. Potentially, the Council also has the power to ensure the various measures designed to control noise, flight movements and flying activity work effectively. However, that does not mean I find what the Council says about respecting the Airport’s right to quiet enjoyment of the lease and avoiding unwarranted interference invalid. I consider the Council could only contemplate using its powers as landlord if justified from its overview of how many complaints the Airport receives about flying activity, how it investigates those and how many are upheld. The Council can only act proportionately and where it has reason to do so. I suggest it would need strong evidence of systematic and significant problems from its overview, to justify this.
  4. I consider it consistent with my analysis above that the Council does not discourage residents contacting it direct to raise concerns. Although the Council may benefit from putting more in the public domain about how it will respond to such concerns. In particular, the extent to which it would want its AMO (or other officers) to become involved in liaising over individual complaints. It clearly wants its AMO to have an overview of complaints. But it could perhaps draw a clearer distinction between instances of individual annoyance to residents (such as perceived nuisance from a specific aircraft at a specific time and place) from more persistent concerns (such as flight routes used in and out of the airport). The Council’s interest will properly be more focused on the latter than the former.
  5. I consider Ms D has worked within these parameters. She has made complaints about individual flying activity with the Airport and only raised with the Council wider concerns she considers illustrated through those complaints. Her complaints focus on three specific areas and I will address each in turn.
  6. First, Ms D questions the track keeping system. I find the Council has checked and there is nothing to suggest the system has not been properly fitted and calibrated. It is clearly a well known system used by major UK airports and so it is safe to assume its general reliability. It will produce slight discrepancies in the height of aircraft, but not enough that on its own that factor would appear likely to make the difference between a complaint about individual flying activity being upheld or not upheld. I see no fault in how the Council has responded on this point.
  7. Yet I find no evidence that to date the Council has raised two specific concerns about the system which Ms D has raised. These are whether there are any grounds to think the system may not track turning aircraft satisfactorily. And how many aircraft (including helicopters) are not picked up by the system at all. While I note there has been some more recent discussion on this latter point, for reasons I explain below I think it reasonable the Council should consider these points further.
  8. Second, Ms D questions the overflying of the estate where she lives when aircraft turn away from the Airport on take-off. I consider this matter linked to the first issue raised above and so no further comment is needed.
  9. Third, Ms D raises the activities of helicopters. Ms D accepts aircraft flying into the Airport must follow the route approved by the CAA. But she also has an expectation that light aircraft and helicopters using the Airport and following visual flight rules should not usually fly overhead if adhering to the Code of Conduct attached to the MIL. This is because the Code says first that overflying by such aircraft over “built up areas” should usually “be avoided”. Second, that the noise sensitive areas “should be overflown only when required pursuant to a direct air traffic control instruction”. This does not prevent all overflying by light aircraft and helicopters in all circumstances. But the Code refers to these clauses without giving any qualification this would not apply to aircraft overflying above 2,000ft. So, on an ordinary reading anyone living in a Noise Sensitive Area may question why there are flights from such aircraft overhead, even if at over 2,000ft unless as a result of an air traffic control instruction.
  10. This may not be what the Airport intended with the Code and I note other clauses may suggest overflights above 2,000ft are acceptable (an interpretation shared by the Council). But it is the inevitable consequence of how the Code is written. I also note here the Council and Airport appear to recognise that more work needs to be done to ensure helicopters do not cause nuisance to nearby residential communities. Although I am unclear what is envisaged here.
  11. I find there is ‘unfinished business’ therefore in the way communications have been left between Ms D and the Council about the matters she raises. While I note the recent positive tone of communications between Ms D and the AMO I do not find Ms D has received any satisfactory reply which explains:
  • if there is any reason to find the track keeping software does not accurately record the position of aircraft turning;
  • the extent to which any aircraft movements (including helicopters) are not picked up by the track keeping software and the reasons for this;
  • any further work being undertaken by the Airport (and Council) in respect of helicopter movements.
  1. This leads me to consider next how the Council has communicated with Ms D since August 2018. I find there are examples of poor customer service:
  • First, the excessive delay in responding to her correspondence of August 2018. I recognise the Council has apologised for this and provided an explanation. But the explanation appears to unreasonably try and shift some the burden of responsibility on to Ms D for the delay. I find there is no evidence she placed any unreasonable burdens on officer time between August 2018 and July 2019 in raising concerns about the Airport. I am also conscious here that when Ms D makes representations she is doing so not only in her capacity as a resident of the Council’s area but on behalf of other residents on the estate where she lives.
  • Second, the Council has offered various assurances to Ms D that I do not consider it can demonstrate fulfilling. In July 2019 it said that its AMO would liaise further with the Airport over the accuracy of the flight tracking data, the extent to which departing aircraft followed noise preferential departure routes and helicopter flights. I can find no evidence this either happened or the Council reverted to Ms D with what its enquiries found.
  • Third, in October 2019 Ms D received assurance her concerns would be raised at a senior level with the Airport. But there is again no record this was done or any information provided subsequently to Ms D on what those communications entailed or what resulted from them.
  1. These examples of poor customer service justify a finding of fault.
  2. The injustice this has caused Ms D is that she has been put to unnecessary time and trouble pursuing complaint about this matter. She has also had expectations raised the Council would be corresponding further when this has not happened. This is an understandable source of frustration.
  3. However, I cannot say that better communications from the Council would result in any significant difference in the impact of aircraft movements on Ms D or the estate where she lives. I have found no evidence the Council knows of any deficiency in the tracking system. Nor that any significant number of individual aircraft movements have departed from the expectations of the Airport and Council. But that does not rule out the possibility of some ‘room for improvement’ in how matters such as helicopter flights are recorded and reviewed.
  4. Before turning to recommendations for how the Council can remedy Ms D’s injustice, I have considered two further matters which I consider relevant to the complaint. First, Ms D has copied to me replies from the Airport to specific incident reports she has received. At times I found the responses could be clearer. For example, when I read one reply to Ms D I did not know if the Airport accepted an aircraft flew below 2000ft near her home, but there was good reason for this. Or if it did not accept the aircraft flew in the way Ms D observed. While other responses referred to aircraft turning within the boundaries of the preferential departure route without making clear where the boundaries of that route lay. I also noted none of the responses referred to the Code of Conduct for light aircraft and helicopters, even though this may have been relevant. I consider there is room for improvement therefore in the quality of those responses.
  5. Second, I consider it worth stressing the overall emphasis of the noise action plan and measures set out in the MIL is to reduce noise impacts on local communities. I note here there is no evidence Ms D experiences any impacts beyond what these agreements define as reasonable. But there is also the ability to check this with mobile noise monitoring equipment kept by the Airport. I welcome the Council made Ms D aware of this facility. I note it is something the Airport has also used when investigating concerns of noise from third parties. Although I can also appreciate why consideration of the noise envelopes will not satisfy Ms D given her reading of the Code of Conduct set out at paragraph 40 above.

Agreed action

  1. I am pleased the Council has accepted these findings. To remedy the injustice identified at paragraph 45 above it has agreed that within 20 working days of this decision it will:
      1. provide a written apology to Ms D accepting the findings of this investigation.
      2. confirm that it will have further discussions with the Airport about the matters referred to in paragraph 42 above and update Ms D on the outcome of those. It will explain who will provide a response to Ms D about these matters (for example its AMO) and by when.
      3. confirm it will have discussion about the nature and quality of the Airport’s replies to complaints through its membership of the Noise and Safety Sub-Committee meeting. It will raise this matter at the next available meeting where its AMO will suggest improvements to the language used in an attempt to ensure complaint replies are as clear and useful as possible for residents
      4. confirm it will ensure that the issues identified in paragraph 40 and 41 above concerning the wording of the Code of Conduct are raised in the forthcoming review of the NAP and, where possible, reflected in the revised NAP.

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Final decision

  1. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Ms D. The Council has agreed action to remedy this injustice in a way that I consider provides a fair outcome to Ms D. I have therefore completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman

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