Barnsley Metropolitan Borough Council (18 009 354)

Category : Planning > Enforcement

Decision : Upheld

Decision date : 04 Apr 2019

The Ombudsman's final decision:

Summary: Mr B complains about the Council’s consideration of a planning application for a café and outdoor seating area next to his home. He also complains about the Council’s consideration of noise from the use of the outdoor seating area. It was fault that the Council did not consider Mr B’s correspondence over the summer of 2018 as complaints about noise and whether further action was necessary. There was delay in considering his complaint. The Council will apologise and, if Mr B complains further, consider if any further action is necessary.

The complaint

  1. Mr B complains about the Council’s consideration of a planning application for a café and outdoor seating area next to his home. He complains about the way the Council is considering the application and the delay in reaching a decision. He also complains about the Council’s consideration of noise from the use of the outdoor seating area.

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What I have investigated

  1. I have investigated the complaints about delay and noise nuisance. I explain at the end of the statement why I have not considered the complaint about the consideration of the planning application.

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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. I considered the complaint and spoke to Mr B. I asked the Council for its comments on the complaint and additional information. I sent a copy of a draft of this statement to Mr B and the Council and invited their comments

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What I found

  1. Mr B lives in a house in a small village. When he bought his house the neighbouring property was a residential house lived in by the people who ran the village shop which was the next house along. When the shop was sold the new owners converted the house next to Mr B’s into a store room, kitchen and offices. The shop was changed to a shop and tea room. By 2017 the owners had also done works to the garden and were using it to provide outdoor seating for the tea room. Mr B was affected by noise from customers using the garden. He complained to the Council as there had been no planning applications submitted for the works.
  2. The owners put in a retrospective planning application. Mr B objected but the Council granted planning permission. Mr B applied to the high court that there were faults in the Council’s consideration of the application. The court quashed the decision. This meant the Council had to reconsider the application. That happened in February 2018. The Council approved the application at the end of March.

Delay in the consideration of the planning application

  1. The court decision was in February 2018. The Council has provided a timeline showing the action taken since then. At the outset there was the normal neighbour consultation. In June there was action to obtain a management plan and contact with highways. Over July and August it appears there were changes to the management plan which were sent to Mr B and environmental health for comment. It takes to the end of November for a report to be drafted and sent to legal. The Council then asks the applicant to submit a heritage statement. The Council formally adopted the local plan in early 2019 which meant it needed to change the draft report and it was sent to legal for comment in early February.
  2. I consider there was delay by the Council in its consideration of the application. There was delay in sending the revised management plan to Mr B and then there was no significant action over September, October and November. The Council then asked the applicant for a heritage statement. I can see no reason why this could not have been requested at the outset. And then there was further delay in finalising the report and sending it to legal. And then further delay in legal responding.
  3. But I do not consider this has caused Mr B significant injustice. Any delay has not altered the decision on the application. Had there been no delay then the planning permission would have been issued sooner. I recognise the time taken has been frustrating for Mr B but I do not consider that is so significant that any remedy if necessary.

Noise nuisance

  1. Mr B first complained about noise from the tea rooms in late summer 2017. He agreed with the Council that as the weather had turned there was no point carrying out any monitoring until the weather improved in spring 2018.
  2. The Council installed noise monitoring equipment over a weekend in late April. The Council has commented that the purpose of installing the noise recorder was to get a better understanding of the impact of the noise within Mr B’s property and make a judgement as to whether it could be considered as a statutory noise nuisance. An officer listened to the recordings who decided the noise did not impact on the general amenity of Mr B’s property and would not constitute a statutory noise nuisance. The predominant noise that could be heard on the recordings was that of passing traffic and bird song.
  3. My role is not to decide whether or not there is a statutory noise nuisance. I can only consider the way the Council has considered the matter. The Council has explained why it does not consider the noise recorded amounted to evidence of a statutory noise nuisance and there is no fault in how that decision has been made. I cannot, therefore, question it.
  4. The Council said Mr B did not make any further noise complaints. Mr B did not submit any further diary sheets but there was considerable correspondence from him over the summer of 2018 the main point of which was concern and complaints about noise from the use of the garden. Mr B repeatedly asked for environmental health officer to visit. I do not, therefore, consider it is a fair representation of the facts to say Mr B did not make any further noise complaints. The Council should, therefore, have addressed itself to whether further action was necessary. I note its comments about the benefits of using noise monitoring equipment when the noise is unpredictable or occurs outside office hours. But it could be reliably predicted that a sunny afternoon in the height of summer would be likely to see the gardens in use. Therefore it would have been possible for officers to carry out an effective site visit to assess the noise first-hand.
  5. I cannot say what the outcome would have been if officers had witnessed the noise. I note the Council has commented that the officer who installed the noise monitoring equipment did not consider the noise then to amount to a statutory nuisance. And that a number of experienced officers have assessed the noise recordings who all concluded that they would not constitute a statutory nuisance. If Mr B continues to complain about the noise over the summer the Council should consider attending to witness the noise.

Complaint handling

  1. The Council has accepted it took too long to deal with Mr B’s complaint made in June 2018. It has said that it will apologise and take improvement action within the complaint handling team. That is an appropriate response.

Agreed action

  1. The Council will, within one month of this decision, apologise to Mr B for the delay in dealing with the complaint and tell the Ombudsman of the action taken to ensure such problems will not recur.
  2. If Mr B makes further complaints about noise over the summer the Council should consider what further action is necessary. If it decides no action is necessary it should explain the reasons for its decision in writing to Mr B.

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Final decision

  1. It was fault that the Council did not consider Mr B’s correspondence over the summer of 2018 as complaints about noise and whether further action was necessary. There was delay in considering his complaint. The Council will apologise and, if Mr B complains further, consider if any further action is necessary.

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Parts of the complaint that I did not investigate

  1. The Council has only just decided the planning application. Any complaints Mr B may have about the detail of that consideration and decision should be raised with the Council. If he is not satisfied with the response then he can make a further complaint to the Ombudsman.

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Investigator's decision on behalf of the Ombudsman

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