Summary: Mr X, on behalf of Mrs Y, complains the Council has not followed the correct procedures when redeveloping an outdoor water play area and has failed to deal with complaints of noise nuisance from the play area. The Council used its professional judgement and took the view the works were permitted development and so no planning application or procedures were required. The Council investigated the noise complaints and decided no further action was justified as there was no statutory nuisance.

The complaint

1. Mr X, on behalf of Mrs Y, complains the Council has not followed the correct procedures when redeveloping an outdoor water play area. He also complains the Council has failed to deal with complaints of noise nuisance from the use of the water play area.
2. Mrs Y says she is unable to enjoy her property due to the noise and is concerned about the impact on the historic garden/park.

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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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. Mrs Y lives in a block of flats located on the seafront. On the promenade, directly opposite her block, there was a children’s paddling pool. The Council decided to redevelop this and change it to a water play area. The Council says it consulted with the community on the proposals and worked with a group who helped to raise funds for the new water play area.
7. Mr X takes the view that a change from a paddling pool to a water play area involves a material change of use and that a planning application should have been made. Mr X says the change is material as it has planning consequences including a significant impact on residential amenity.
8. The Council, in this case, is both the developer and the planning authority. It says that under Class A of Part 12 of the Town and County Planning (General Permitted Development (England) Order 2015 the works do not require planning permission. The act specifically allows:

“the erection or construction and the maintenance, improvement or other alteration by a local authority or by an urban development corporation of –

(a) any small ancillary building, works or equipment on land belonging to or maintained by them require for the purposes of any function exercised by them on that land otherwise than as statutory undertakers;

(b) lamp standards, information kiosks, passenger shelters, public shelters and seats, telephone boxes, fire alarms, public drinking fountains horse troughs, refuse bins or baskets, barriers for the control of people waiting to enter public service vehicles, electric vehicle charging points and any associated infrastructure, and similar structures or works required in connection with the operation of any public service administered by them.”

9. The Council says that the only building associated with the water play area is the pump house and this does not exceed the maximum size limits also set out in the act. It notes that the area is within a registered historic park/garden but that this does not affect the permitted development rights.
10. Mr X and the Council have corresponded on this point in some detail. Mr X has set out his arguments for why he disagrees with the Council’s view that the works are permitted development. The Council has responded in detail to the points raised by Mr X and explained why it does not accept his arguments. It is clear there is a difference of opinion between Mr X and the Council on this point.
11. As the matter was not subject to a planning application, there was no detailed assessment of the impact on the residential amenity of the neighbouring residents.
12. Mr X has also asked the Council if it undertook a Heritage Impact Assessment prior to the commencement of works. The Council said no assessment took place and explains that such an assessment would only be needed to inform a planning application.
13. In a letter dated 30 July 2020 to Mr X, the Council said that there will be a full review of all the risks and operating practices before the facility is re-opened. It says this will include the strict control numbers attending. The area did not re-open in 2020 due to COVID-19.
14. Mr X raises issues of noise nuisance experienced by Mrs Y. The Council received 16 complaints of noise in the summer of 2019 when the water play area opened. Mrs Y complained she could not enjoy her property on because of the noise of children playing in the water play area.
15. An Environmental Health Officer wrote to Mrs Y on 29 July 2019. He explained he had visited the site earlier that day to assess the water play area. He also commented that he had been in the vicinity on a number of occasions and had heard the noise Mrs Y was complaining about. The officer agreed there were occasions when the children’s voices were loud.
16. The officer went on to explain that when deciding if a statutory nuisance exists a number of factors had to be considered. He said it will depend on the nature of the case and the purpose of the activities engaged in. The officer explained he had considered factors such as motive, duration, intensity, time of the activity, nature of the locality and sensitivity of the complainant. In his letter he gave more details of his consideration of each of these points and came to the view that a statutory nuisance did not exist and that there were no grounds for the Council to take legal action. He advised Mrs Y could pursue the matter herself under section 82 of the Environmental Protection Act 1990 and suggested she seek legal advice if considering that route.

Analysis

17. Mr X complains about the failure to require a planning application and to carry out the associated assessments and planning considerations. The Council took the view the works were permitted development and so no planning application was made. The Council has explained why it has taken this position as well as responding to Mr X’s detailed arguments on why he considers a planning application should be required.
18. Mr X, as a professional planning consultant, will be aware that there are situations where the Council is both developer and planning authority. There is nothing to suggest the Council is unable to make the decision on whether a planning application is required. The Council’s professional judgement is that the works are covered by permitted development rights and so no planning application is required. This means that there is no requirement to carry out the other assessments highlighted by Mr X such as a Heritage Impact Assessment.
19. I appreciate Mrs Y does not agree with the Council and that she would have welcomed the opportunity to make comments on the changes to the paddling pool. There is a clear difference of opinion on whether planning permission is required but a difference of opinion is not evidence of fault and it is not the Ombudsman’s role to adjudicate on this. The Council has used its professional judgement and explained its reasons for not requiring a planning application. There is no basis for the Ombudsman to find fault.
20. Mrs Y also complains the Council has not properly investigated her complaints of noise nuisance from the water play area. I am satisfied the Council did investigate this in the summer of 2019. It acknowledges the sounds can be loud at times but is not persuaded this amounts to a statutory nuisance. The Council has provided a detailed explanation of the factors it considered when deciding a statutory nuisance did not exist.
21. Mr X says the Council should have visited Mrs Y’s property to assess the effect of the noise there. The Council visited the site and made its decision based on what it heard there. It has decided it did not need to visit Mrs Y as the noise witnessed right at the site was not a statutory nuisance. I am satisfied the Council has properly investigated the noise complaints and used its professional judgement to decide no further action will be taken. I find no evidence of fault in how it investigated the noise complaints.

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Final decision

22. I will now complete my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman