Summary: Mr B complained about the Council’s decision not to take enforcement action against an airport for breaching the terms of a section 106 legal agreement. We have not found fault with the actions of the Council.

The complaint

1. Mr B complained that Rushmoor Borough Council (the Council) has failed to take enforcement action against breaches of a section 106 agreement (the Agreement) in respect of the operation of Farnborough Airport (the Airport) and failed to provide adequate reasons why not. Specifically, Mr B believes that the Airport is not:
• providing noise monitoring equipment when requested by members of the public and it does not maintain the equipment in a usable state.
• dealing with complaints in accordance with the procedure set out in the agreement and has not upheld one complaint out of 2000 in respect of noise.
• monitoring air pollution in accordance with the agreement. It only monitors nitrogen oxide when there are other pollutants it should also be monitoring.
2. Mr B says he experiences continual disturbance from aircraft using the Airport and has been put to significant time and trouble in pursuing the issues.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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How I considered this complaint

6. 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. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Enforcement

7. 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.
8. 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.
9. 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)
10. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

Council’s enforcement policy

11. The Council’s Local Enforcement Plan 2022 says:

‘The Council is not obliged to take action against an identified breach. The decisive issue is whether the unauthorised development or activity gives rise to harm to the extent that it is necessary to attempt to undo or stop it. The Council must consider factors such as whether the breach has become lawful by virtue of the date it took place, or by having been carried out for such a period as to make it immune from action. The severity of the breach and the extent to which it contravenes the requirements of the local plan must also be considered.’

Section 106 agreement

12. As part of the planning permission the Airport signed a section 106 legal agreement (the Agreement) with the Council, containing conditions about a variety of issues including noise monitoring, air pollution monitoring and dealing with complaints.
13. The Noise and Track Monitoring Scheme within the Agreement said that a portable Noise Monitoring Terminal is provided for ad-hoc monitoring in connection with trials of alternative Noise Abatement Procedures or in response to requests from groups or individuals in the surrounding community. It said the terminal is subject to full maintenance checks, calibration and certification on an annual basis.
14. The Agreement says that a record of all complaints received by the Airport shall be kept and responses including any remedies and the Airport will supply the Council with details of the complaints every quarter, but the frequency can be amended with the Council’s agreement. The Agreement contains a complaints charter which provides a specific process for receiving, investigating and responding to the complaints.
15. The Agreement contains an air quality monitoring scheme which says the Airport will assess air quality by monitoring nitrogen dioxide levels at thirteen sites in and around the Airport boundary. It says the extent and scope of the monitoring of the scheme may be changed after consultation and agreement with the Council.

What happened

16. Mr B lives outside the Council’s area, some distance from Farnborough Airport. He says he is acting on behalf of himself and other members of a group of interested residents who are concerned about disturbance from increased activity at the Airport following airspace changes in 2020. The Airport has recently submitted to the Civil Aviation Authority data from a 12 month Post-Implementation Review (PIR) of the changes, for it to consider and evaluate.
17. In October 2022 he complained to the Council about four issues relating to the Agreement, three of which are the subject of this investigation:
• The Airport was not maintaining or providing the portable sound monitoring equipment on request.
• The Airport was not dealing with complaints in accordance with the complaints charter.
• The Airport was not monitoring air quality adequately.
18. The fourth element about the definition of business aviation was considered in a different complaint made to us by a different person and Mr B did not wish to pursue it with us.
19. The Council treated the communication as a complaint about breaches of planning control and responded a few weeks later. In respect of the portable sound monitoring equipment, it said it would consider it reasonable to deploy the equipment on request by members of the surrounding community in situations where procedural trials are being undertaken or when residents are requesting consideration under the sound insulation grant scheme. In any event it would not expect the equipment to be used in areas outside the 55 decibel noise contour. It said the Airport had provided evidence in March 2022 that the equipment was in working order.
20. In respect of the complaint handling, it said that the Airport had received large numbers of complaints following the airspace changes and significant numbers of them appeared to come for a small number of complainants. It accepted that this increase in complaints primarily concerned with noise following the changes, had affected the Airport’s ability to deal with them, as well as complaints about more general issues. It said it was working with the Airport to identify an appropriate solution to ensure its obligations under the Agreement are met. As the Airport was working to address the difficulties it did not consider taking enforcement action would be expedient.
21. It noted there was an ongoing wider review of the airspace changes and considered complaints should be directed to that review.
22. In respect of air pollution it said it was not possible to modify the Agreement to take account of more recent research into air pollution. But it outlined the measures it had taken regarding new duties in respect of two new air quality targets. But the government had not yet published information saying whether this would be a central or local government responsibility.
23. In conclusion it did not consider the sound monitoring or air quality issues were breaches of planning control. It agreed the complaints were a breach, but the Airport was taking steps to address the problem.
24. Mr B responded to the Council in November 2022. He said the Agreement did not limit provision of the sound monitoring equipment to the circumstances described by the Council and could be provided in response to requests from individuals or groups in the surrounding community. He did not provide any specific evidence of the requests but said he and others had been refused on the grounds that the equipment was broken.
25. He said the Airport should respond to the complaints regardless of how many had been made and regardless of the PIR. He did not provide evidence of unanswered complaints.
26. On the air quality he said the Airport had a responsibility to improve controls to protect public health and the standards for the future were not set in 2010 when the Agreement was signed.
27. Around this time the Airport withdrew a planning application to amend the complaints charter in the Agreement to include limits on vexatious complaints. It said it wanted to consult with interested parties before proceeding with this change.
28. The Council treated the communication as a complaint and responded at stage one of its complaints procedure.
29. It noted Mr B’s request for the noise monitoring equipment and advised him to contact the Airport setting out details of the request, who it was from and how they are linked to the surrounding community.
30. It referred to its previous response regarding the complaints charter and said that pursuing enforcement action would not be expedient, that it was reasonable for the Airport to address vexatious or unreasonable complaints and that it was understandable the increased volume of these types of complaint had affected its ability to respond in a timely manner.
31. The Council also said that Mr B had not provided any evidence to support his assertions about air pollution.
32. Mr B responded in early January 2023. He said he and many individuals had requested the noise monitoring equipment and it had not been provided. He asked if the Council had checked it was in working order. He repeated his view that the Airport should be responding to the complaints, and said it was not for him to provide evidence of air pollution but for the Council to act proactively to address the issue and protect the public.
33. The Council responded at stage two of its complaints procedure in February 2023. It said there was no evidence that the Airport had failed to meet its obligations to provide sound monitoring equipment. It was satisfied that enforcement action was not the way to resolve the issue about the complaint- handling and it maintained its view that there was no evidence of a breach in terms of the air quality monitoring.
34. Mr B then complained to us. He has provided evidence that he received a response from the Airport in April 2023 to eight complaints he had made about noisy flights on the wrong flightpaths. He said the response was standard and not as detailed as he would expect.
35. In response to a draft of this decision a local councillor endorsed Mr B’s view that the Airport was not providing Noise Monitoring Equipment and said they had raised the issue on many occasions to the Airport.

Analysis

36. It is not my role to decide whether there are breaches of planning control nor whether the Council should take enforcement action against such breaches. I rather look at the way in which the Council made those decisions. If I do not identify fault in the way the decisions were made, I am unable to recommend any changes to them. It is also relevant that the power to take enforcement action is discretionary and the Council can take other types of informal action to address breaches. In reaching a decision whether or not to take action it is necessary for the Council to consider the nature of any harm caused.
37. Turning to the three issues Mr B raised:

Noise monitoring equipment

38. Mr B has not provided the Council with evidence to support his view that the Airport had refused reasonable requests from individuals and groups in the surrounding community. Mr B says he and others have made many requests, but they have been refused. The Council says the Airport has provided satisfactory evidence that the equipment is in working order and it has no evidence that a breach of the Agreement has occurred. I do not find fault with its decision here. I also do not consider it is unreasonable for the Council to take a view on the interpretation of the surrounding community when considering whether any refusals of the equipment were reasonable.
39. Mr B and other interested parties need to provide the Council with evidence that reasonable requests have been made by members of the surrounding community in accordance with the terms of the Agreement and that the Airport has refused the request without good reason. I would then expect the Council to assess that evidence, decide whether it shows a breach of the Agreement and if so whether it will take enforcement action.

Complaints

40. The Council agrees there is a breach of the Agreement because the Airport has received a large volume of complaints and has not been able to respond to them in accordance with the complaints charter. It believes some of these are vexatious in nature and this is the reason why it is difficult to keep to the requirements of the charter. It says it is working with the Airport to improve the situation and does not consider it is expedient to take formal enforcement action because it will not resolve the problem. I do not find fault with this approach. I also consider it is reasonable for the Airport to look at ways of dealing with vexatious or unreasonable complainants and note that the Post-Implementation Review is considering the operation of the airport since the airspace changes were introduced.

Air Quality

41. The Council has decided the Airport is adhering to the requirements of the Agreement in terms of air quality monitoring. While this may not cover all the issues arising from more recent developments in air pollution regarding particulates, it does not mean there is a breach of planning control. The Council has also explained what action it is taking in other ways regarding the more recent issues and that this is dependent on further decisions from central government. I do not find fault with its actions here.

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Final decision

42. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Mr B.

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Investigator's decision on behalf of the Ombudsman