Summary: On balance, the evidence shows the Council considers it should have required the submission of a noise assessment, as part of a planning application, and so this is fault. This did not, however, make any difference to the outcome of the application. There is no evidence of fault in any other aspect of the complaint, and so we have completed our investigation.

The complaint

1. I will to the complainant as Mr W.
2. Mr W complains about the Council’s decision to permit a local bar to extend its opening hours. He says live bands playing at the bar cause noise disturbance to guests at his B&B property.
3. Mr W would like the planning decision to be amended and restrictions added to it, and to be compensated for his time and trouble pursuing the complaint.

Back to top

The Ombudsman’s role and powers

4. 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 an organisation’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)
5. 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)
6. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

7. I reviewed the case officer’s report for the 2020 planning application, the decision notice for the 2017 planning application, a selection of documents pertaining to other relevant planning applications, and Mr W’s correspondence with the Council.
8. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

9. Mr W runs a B&B. Approximately 100 metres away, on a different street, there is a property which used to be a shop. In 2017, the Council gave permission for a change of use for this property to a licensed coffee bar.
10. The Council included two conditions on the planning permission: first, that, before it opened, the bar submit a plan for sound insulation, to protect the property directly above from noise nuisance; and second, limiting its opening hours from 8am-10pm from Monday to Saturday, and 10am-6pm on Sundays and public holidays.
11. In 2019, the bar applied to the Council for a change in its opening hours, from 10am-11pm Monday to Thursday, 10am-midnight Friday and Saturday, and midday-10pm on Sundays and public holidays. The Council refused this application because of concerns about an increase in noise disturbance.
12. In 2020, the bar applied again to change its opening hours, this time to 1pm-midnight Friday and Saturday, and 1pm-11pm on all other days. The bar also submitted a sound insulation scheme, to discharge the outstanding condition from its original planning permission.
13. The Council consulted with its environmental health (EH) department as part of this application. An EH officer confirmed they were satisfied with the sound insulation plan, but expressed the view the bar should not be allowed to host live bands. But the Council approved the application, saying it could not reasonably impose such a restriction now, when it had not been part of the original planning permission. It added a new condition that the insulation be installed before the change to the new opening hours.
14. In 2021, the bar applied to discharge the new condition. The Council refused this because it had not provided evidence it had completed the work. The Council also observed the bar appeared to be suggesting a different scheme of insulation than the one it had approved. Later in 2021, the bar applied for permission to change the scheme. At the time of writing this application remains outstanding.
15. In October 2021, Mr W submitted a stage 1 complaint to the Council about the 2020 planning permission. He said:

• the case officer had failed to consider relevant local planning policies;
• the Council should have required the submission of a noise assessment as part of the application;
• the case officer had failed to consider neighbour objections and previous complaints as part of the application;
• that the Council should have required sound insulation to be installed, tested and approved before planning permission was given;
• that the case officer had taken the EH officer’s comments “out of context”;
• other licensed premises in the area were subject to planning restrictions which had not been applied to this bar; and
• the case officer had not carried out a site visit as part of the application.

16. The Council responded in November. It said:

• although case officer had not specifically referred to the relevant local policies, the key issue – that of noise – was given proper consideration;
• there was sufficient information provided with the application to allow the noise issue to be assessed, with a formal noise assessment;
• the case officer set out all relevant material planning considerations in deciding why the proposal was acceptable, in particular the difference between this and the previous, refused, application;
• the permission included a condition to ensure the sound insulation was installed as proposed, and this was normal practice;
• the case officer had properly set out the EH officer’s comments and had not taken them out of context;
• each planning application is assessed on its own merits, and the case officer was satisfied with the information provided and the details of the proposals; and
• there is no requirement to undertake a site visit, but the case officer’s report demonstrated an understanding of the local area and the potential impact of the proposals on neighbours.

17. After Mr W expressed dissatisfaction with the Council’s response, it escalated the complaint to stage 2 and responded further in December. The Council said:

• it remained satisfied the case officer had properly considered the relevant local policies. Mr W had pointed out that two properties neighbouring the bar had restrictions on live music, and the Council noted again the EH officer had recommended such a restriction here as well, but it reiterated this would not be reasonable given no such condition was placed on the 2017 planning permission. The Council also noted it had suggested the application obtain a noise assessment as part of its pre-application advice, but explained this was not binding, and while an assessment would have been “helpful” in this case, it was not essential;
• it understood the bar had not complied with the original requirement to install sound insulation before it opened, but the case officer was satisfied with the information provided in the 2020 application, and there was a condition requiring it be installed before the change in opening hours. If Mr W considered the bar was not doing this, then he should make a complaint to the Council’s planning enforcement team;
• the case officer had correctly summarised the objections to the 2020 application;
• its enforcement team had investigated the bar’s failure to install sound insulation before its change of use, which led to the subsequent application to regularise the breach. The Council had now agreed the insulation scheme and could enforce it;
• the case officer had not taken the EH officer’s comments out of context;
• the case officer had explained clearly why he considered the proposals acceptable, including the scheme of sound insulation to “prevent harm to the upper floor residential use”; and
• it had now clarified that the case officer had undertaken a site visit.

18. Mr W referred his complaint to the Ombudsman on 16 February 2022.

Back to top

Legislative background

Planning permission

19. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
20. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
21. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
22. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
23. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. The courts have made it clear that case officer reports:

• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

Enforcement

24. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
25. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
26. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)

Back to top

Analysis

27. For the sake of clarity, I will address separately each point Mr W made in his complaint to the Council. First though, I must explain the Ombudsman’s role in complaints about planning decisions.
28. The Ombudsman reviews how councils have made decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or failed to properly explain a decision. We call this 'administrative fault’, and, where we find it, we can consider the consequences of the fault and recommend the council put matters right.
29. However, we are not an appeal body. We have no power to reconsider and overturn council decisions, and if a council has made its decision properly, we cannot criticise it, no matter how strongly a complainant may oppose the decision. It is not for us to substitute council officers’ judgement for our own, and we do not uphold complaints simply because somebody disagrees with what a council has done.
30. In his complaint to the Ombudsman, Mr W has sought a reconsideration of the Council's 2020 decision and the imposition of restrictions to prevent noise disturbance. But, regardless of any finding I make, this is not something we have the power to do; we cannot quash planning permission, as this is something only the courts can do, and nor can we make our own decision on a planning application, including whether it should include conditions. These are not outcomes we can provide here.
31. I will now turn to Mr W’s specific complaints.

The case officer did not consider relevant local policies

32. There is no requirement for case officers to list specifically each relevant local policy in their reports. As the Council has said, the key issue here is that of noise, to which the case officer gave detailed consideration; and so there is no reason to believe this matter was overlooked, even accepting the case officer did not make reference to the specific policies.
33. For context, I should add that local planning policies are intended to be guidelines only. They are not hard and fast rules, and councils may disapply their policies where they consider it is justified.
34. I find no fault here.

The Council should have required the submission of a noise assessment

35. The decision whether an application should include a noise assessment should be made on a case-by-case basis. Again, there is no absolute requirement for a noise assessment, but we would expect councils to have a proper mind to the facts of a case before making this decision.
36. I agree with Mr W there are obvious reasons, in this case, why one might expect the Council to have required the submission of a noise assessment – for example, the fact the 2019 application was refused because of concerns about noise, and the EH officer’s recommendation that the bar be prevented from hosting live music. It is clear the Council appreciated that noise was a potential problem here.
37. I note also the Council’s comment in its stage 2 response to Mr W, where it agreed it would have been “helpful” to have had a noise assessment here.
38. But this does not mean the Council could not make an informed decision without a noise assessment. The case officer’s report sets out the proposed scheme of sound insulation, and notes the EH officer had no objection to this, nor to the proposed increase in opening hours. The case officer also recorded that objectors had concerns about noise, but noted the proposed hours were “broadly in line” with those granted to other premises.
39. The case officer also reflected the EH officer’s recommendation that no live music be permitted, but explained it would not be reasonable, given that no such restriction had been placed on the original permission in 2017.
40. These were judgements the case officer was entitled to make, and it is difficult to see what difference a formal noise assessment would make here.
41. Given its comment in the stage 2 response, I am left with the impression the Council considers it would have been more proper to require a noise assessment here. On balance, therefore, I find fault for this reason. However, as I am also satisfied this would not have made a significant difference to the outcome of the application, I do not consider this could be said to cause Mr W an injustice.
42. This brings me to the related point about the sound insulation.
43. The Council has noted the 2017 permission required the bar to install sound insulation before opening. In fact, to my reading this is not accurate – the 2017 permission only required the bar to submit an insulation scheme, and gain the Council’s approval for it, before opening. This may not have been the Council’s intention when drafting the condition, but, either way, it is clear this did not happen.
44. The 2020 permission approved the proposed scheme, and imposed a new condition requiring it be installed before the bar changed its opening hours. However, again, Mr W says this has not happened, and the bar is opening to its new hours without installing the insulation.
45. Since approaching the Ombudsman, and at the Council’s suggestion, Mr W submitted a complaint to its planning enforcement team about this. The enforcement team decided there was no breach of planning permission if the bar was operating within the (newly approved) opening hours; but it appears it may have missed the requirement that the sound insulation be installed first. Given the insulation is subject to yet another (ongoing) application, it is obvious this is yet to happen.
46. Unfortunately I cannot investigate this point because it is a new matter, about which Mr W has not made a complaint to the Council. Regardless of this, I appreciate why Mr W is dissatisfied here – it is now five years since the bar opened, and it still has not installed the sound insulation which was recognised as important when the Council gave permission originally.
47. But I consider it is critical to note the exact wording of the condition on the 2017 permission:

“Prior to the commencement of the use hereby permitted a scheme of sound insulation to protect the first floor from the proposed A4 use shall be submitted to and approved in writing by the Local Planning Authority.” (emphasis my own)

48. This demonstrates that the purpose of the sound insulation was to prevent noise nuisance to the property directly above the bar, which I understand is residential. The 2020 permission also reflects this, with references to limiting noise transference through party walls, and protecting the amenity of adjoining neighbours.
49. Mr W’s property, however, is not an adjoining neighbour, but is in fact some distance away, in a different street. And, in his submissions to the Ombudsman, he says it is the fact that bands play in the bar next to the windows which causes the alleged noise disturbance.
50. This being the case, I do not consider the sound insulation issue is material to Mr W’s complaint. The proposed scheme – which is to install insulating material in the bar’s ceiling cavity – would make no difference to the amount of noise escaping through the windows. The condition was never intended to protect Mr W’s property from noise, and so, regardless of whether there is fault in how the Council has managed this, it cannot represent an injustice to him. I will therefore not consider this point further.

The case officer failed to consider all objections and previous complaints

51. As explained, there is no requirement for case officers to set out objections verbatim in their reports. Rather, they are expected to highlight and address the relevant issues.
52. Here, the case officer listed the key points brought by objectors in their report. These all revolved around the noise issue, which the case officer then went on to address fully, as I have described above. It was up to the case officer to decide what weight to place on the objections, and so it is not fault they recommended approval of the application despite these.
53. I find no fault here.

The Council should have required the sound insulation to be installed, tested and approved before giving planning permission

54. I do not consider this would be a practical proposal. Councils have a limited time to consider planning applications, after which they can lose the right if the applicant appeals to the Planning Inspectorate. It is entirely normal for councils to approve a written scheme such as this, without first requiring installation and testing, and instead using conditions to ensure they can enforce it.
55. In any case, for the reasons I have given I do not consider the question of sound insulation to represent an injustice to Mr W.
56. I find no fault here.

The case officer took the EH officer’s comments out of context

57. In his stage 2 complaint, Mr W quoted the EH officer’s exact words, which were:

“No objection to the proposed hours subject to no live entertainment or music being provided on site and the sound insulation performance achieving a minimum of 60dB Dntw reduction.”

58. Mr W says the EH officer only had no objection to the proposed hours, provided the bar was not permitted to host live entertainment. He therefore viewed the case officer’s assertion, that the EH officer simply had no objection, to be out of context.
59. I acknowledge Mr W’s point here, but I do not consider there is anything substantively misleading in this. The case officer did not ignore the EH officer’s recommendation that there be no live music, but explained why the Council could not reasonably require this. Although, arguably, the case officer should have explained the EH officer had only agreed to the increased hours on the basis it restricted live music, I am not persuaded this could have made any difference to the outcome.
60. It is also important to note there is no requirement for planning authorities to act on the recommendations of consultees. Depending on the nature of the application in question, the law requires planning officers to consult with other agencies, or other local authority departments (such as environmental health), as part of their consideration; but the decision whether to recommend an application for approval or refusal remains with the case officer. So in this case, there is no fault that the case officer did not act upon the EH officer’s recommendation to restrict live music at the bar.
61. I find no fault here.

The Council has imposed restrictions on other local bars which it did not apply here

62. Mr W says that other bars and similar premises do not have the same restrictions as the bar in question here.
63. However, as the Council says, each case must be considered on its individual merits, and I am satisfied the case officer gave proper consideration to the material facts in this case. Planning decisions do not create precedent, and so the fact the Council may have made a different decision in other cases does not mean there is fault here.
64. In any case, there is nothing here to suggest the other premises have actually sought less restrictive conditions from the Council anyway. For example, while Mr W has provided evidence that other premises have shorter opening hours, this does not mean the Council has refused an application from them for later hours, which is what he appears to have inferred – rather, it could equally mean the Council has granted an application for shorter hours, and the businesses owners’ remain satisfied with this.
65. I find no fault here.

The case officer did not undertake a site visit

66. As the Council says, there is no requirement for case officers to carry out site visits as part of their consideration. This includes both the application site itself, and the premises of any objectors.
67. That said, I do find the Council’s initial response to this point to be somewhat unclear, and – if the case officer did visit the site – it is difficult to understand why it did not just say so in the first place. So the stage 1 response could have been more helpful on this point, although I do not consider this to be so significant it amounts to fault.
68. I find no fault here.

Conclusions

69. With the exception of one point, I am satisfied with the Council’s handling of this planning application. Although, on balance, I consider the Council now recognises it should have required a noise assessment, I am not persuaded this made any substantive difference to the outcome of the decision.
70. I am concerned with the Council’s decision on Mr W’s planning enforcement complaint, for the reasons I have set out. I cannot investigate or make a finding on this point, because it does not satisfy the Ombudsman’s prematurity rule, but it is open to Mr W to make a further complaint about this. Alternatively, the Council may wish to review this matter proactively, without a further complaint. But, either way, I do not consider the sound insulation issue represents an injustice to Mr W.
71. Although I have found no significant fault here, if Mr W remains troubled by the noise from the bar, he has the right to report this to the Council as a potential noise nuisance under the Environmental Protection Act 1990. The Council will then have a duty to consider whether the noise represents a statutory nuisance, and if so, require it to be abated. This is an entirely separate regime from the Council’s planning powers, and so the fact the Council has given planning permission to the bar does not mean it cannot enforce against any statutory nuisance it may be causing.
72. Alternatively, Mr W has the right to apply direct to the magistrates’ courts, under section 82 of the 1990 Act, for it to decide whether there is a statutory nuisance here. If the court decides so, it can issue an abatement order against the bar.

Back to top

Final decision

73. I have completed my investigation with a finding of fault which did not cause injustice.

Back to top

Investigator's decision on behalf of the Ombudsman