Summary: Mrs X says the Council failed to properly consider her amenity when approving a planning application. She says the Council’s approval of the development will disturb the quiet enjoyment of her rented property. The Council’s consideration of environmental issues raised by Mrs X is at fault. I consider this has damaged her faith in the planning system which is an injustice. But, even if the Council had done things correctly, it would have granted permission. We have recommended the Council acknowledge the distress caused with an apology and a service improvement recommendation.

The complaint

1. Mrs X complains that:
1. The Council failed to consider her objections to a proposed development properly, using inaccurate information to consider whether to approve a marquee, toilet block and car places outside her front window.
2. The Council failed to properly answer her queries when she complained about its actions.
3. The Council failed to produce a copy of the minutes taken at the requested consultation with Environmental compliance on 5 January 2018. The Ombudsman’s role and powers
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)
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)

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How I considered this complaint

4. I spoke with Mrs X and read the documents she provided.
5. I researched the relevant policy and law.
6. I reviewed the Council’s response to my enquiries.
7. Both the Council and the complainant had the opportunity to make comments on our draft decisions. I have considered their comments when writing my final decision.

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What I found

Relevant legal considerations

8. The National Planning Policy Framework, (the NPPF), provides guidance to local authorities on planning matters. Planning policies and decisions should contribute to and enhance the natural and local environment by, among other things, preventing new and existing development from contributing to, being put at unacceptable risk from, or being adversely affected by, unacceptable levels of noise pollution.
9. When a planning application for a development is made, the Council must take into account certain issues, known as material planning considerations. Noise and disturbance are material planning considerations.
10. The NPPF says that noise needs to be considered when development may create additional noise or would be harmful to the prevailing acoustic environment (including any anticipated changes to that environment from activities that are permitted but not yet commences). When preparing plans, or taking decisions about new development, there may also be opportunities to make improvements to the acoustic environment.
11. The NPPF says that when considering the impact of noise, it is important to look at the context of the wider development, its likely users and its surroundings, as these can have an important effect on whether noise is likely to pose a concern.
12. Plan-making and decision making need to take account of the acoustic environment and in doing so consider:

• whether or not a significant adverse effect is occurring or likely to occur;
• whether or not an adverse effect is occurring or likely to occur; and
• whether or not a good standard of amenity can be achieved.

13. When proposed developments could include activities that would be covered by the licensing regime, councils should consider whether the potential for adverse noise impacts will be addressed through licensing controls.

Temporary Event Notices (TENs)

14. The environment team referred to the use of TENs in this case.
15. A TEN is used when a proposal is made to use a premises for one or more licensable activity during a period no longer than a week. In these circumstances, an individual may give the licensing authority a TEN. There must be more than 24 hours between each relevant event applied for. No premises may be used more than 12 times per calendar year or for more than 21 days per calendar year in total. (Section 100, Licensing Act 2003)

Case Officer Reports

Planning officers write reports setting out their consideration on planning applications. It is common ground that the leading case on the need to provide ‘adequate’ reasons is South Bucks District Council and Another v. Porter (No 2) [2004] 1 WLR 1953, where Lord Brown summarised the authorities in the well-known passage at paragraph 36:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision… The reasons need refer only to the main issues in the dispute, not to every material consideration…Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced." (My emphasis)

Background facts

16. Mrs X is the tenant of a landlord who sought planning permission from the Council to erect a marquee and toilet block in an area of land close to her rented property (House Y). She says she is only 5.4 metres away from the planned development, separated only by the width of a boiler house, which is attached to House Y.
17. The application was made so that the owners of the land, where her rented cottage is situated, could hold events for up to 300 people.
18. She is concerned about the extra traffic, noise and disturbance that she says will inevitably be caused by the development.
19. The boiler house beside House Y borders the part of land where the planned toilet block is to be positioned. The marquee is planned to be positioned about 30 metres distance away from the boiler house. Catering facilities are also planned to be positioned in front of the marquee and so would be about 25 metres from the border with the boiler house.
20. The application also involved an application for a number of car parking spaces. This car park would be facing onto the front of House Y. Although currently, there is what the Council call ‘informal parking’ in front of House Y, the applicant plans to remove the two green lawn areas she currently looks onto, in order to achieve more parking.
21. On 5 January 2018 the Council’s environmental team issued a statement confirming it had no objections to the development. The licensing team also had no comments to make.
22. On 16 March 2018 PO1 asked for clarification from the environmental team. She said that for her ‘peace of mind’, she wanted to check that the environmental team were happy that there would be no nuisance to the residential accommodation that included House Y. She asked, “When you assess the application and say, “No objection”, is it assessed against potential for noise…or is it based on the fact that a license is there so its ok?”
23. The response referred to how the environmental team assessed Temporary Event Notices (TENs). It said when it assessed TENs or license applications, it looks at past complaints of noise. It said if there had been no complaints it would not usually object. It added, “…we generally need evidence that it will cause a statutory noise nuisance to object.”
24. Following our draft decision, the Council has added that when assessing a potential noise arising from a development, the Council seeks to determine if there had been any previous noise complaints. It was noted that an entertainments licence had been in place for over ten years and there had been no complaints. No noise complaints had been made during the periods when TENs had been used.
25. The Council says it was also considered that the nearest noise sensitive receptor was a significant distance from the events. It says that using this information, it made an informed decision not to object to the application.
26. A site visit was conducted by the planning officer assessing the application, PO1, on 17 January 2018. House Y was not referred to in the site visit notes. However, a number of photographs were taken of the area where the planned development would be situated. This included photographs of the side of the boiler house that looks onto the area planned for development.
27. Mrs X made objections to the application on 29 January 2018. She said, among other things, that:

• The marquee and other buildings would be too close to House Y.
• The development would cause noise pollution.
• The proposed car park sitting is too close to residential properties such as House Y. It would affect the residential properties because of the pollution from car exhaust fumes.
• Vehicles would come too close to the front of House Y when reversing.

28. On 7 February 2018, PO1, emailed the agent for the application.
29. She sought clarification on the occupation within the adjoining residential units, of which House Y is one. PO1 said she had not previously realised the relevance of the properties. She said the impact from noise from cars leaving and entering the proposed car parking area and music from the marquee would need to be addressed. She said this could be in the form of a noise impact assessment. She said this should outline any mitigation measures necessary to ensure that residential amenity is not compromised. She made some suggestions to reduce noise impact.
30. The agent responded by organising a Management of Events Statement, (the Statement), to consider potential noise from the marquee and the potential noise and or disturbance from cars leaving and entering the car park.
31. The Statement set out, among other things, that:

• The purpose of the planning application had been to regularise existing events and enable larger sit-down functions to take place.
• An entertainments licence already existed permitting events to 1am on Fridays and Saturdays, which had been operating for over two years.
• Events had so far been effectively managed, which could be confirmed with Environmental Health. Events would continue to be managed in this way.

32. The Statement shows consideration of the issues and proposed arrangements to “...ensure events will not impose on residencies”. It said it would maintain acceptable levels of activity and noise from events. It noted measures like:

• The arrangement within the marquee will position any required amplification for speeches/entertainment to face away from the residential properties
• Activities within the marquee would be subject to separate licensing matters and be reviewed regarding potential impact by the licensing department.
• An events manager can be on site at all times to manage any issues

33. The Statement also said that other issues, such as the marquee specification and opening times, could be dealt with by condition when the planning application was being considered.
34. It also considered car parking issues. It made a number of other suggestions to manage the car parking areas, including signage and contingency plans if large groups of people were expected.
35. It said that the application would represent “limited change” from the existing situation.
36. It added that a transport statement had been completed which confirmed that the expected level of car journeys will have a “negligible impact” on the surrounding area.
37. On 23 April 2018, PO1 completed her case officer report. The statement contained some inaccuracies. While it referred to the distance from the marquee of other properties, it referenced House Y as the closest property, without providing its distance.
38. It detailed the analysis from the transport statement that had been provided. It noted that for this size of development, a transport statement would not usually be required but the Council had felt it was appropriate because of the concerns around increased traffic. As a result of the transport statement analysis, the Highway Authority did not consider there was a reason to refuse or restrict the planned development.
39. It was recommended that the marquee should stand only between April and September.
40. With regards to parking, it said that an existing formal car park existed already. Mrs X says that an informal car park did not exist at the time. She says that in fact, there were ‘no parking’ signs up around the area.
41. I made further enquiries about this issue. The case officer said that, “…the informal parking I refer to in my report…comes down again to a matter of semantics…there is room for parking and it is where cars park currently along the wall…and around the grass verges to the barns/residential properties. It is clearly not Highways land and is therefore exempt from any public enforcement. It is in private ownership where any private rights to display signs and restrict/enforce parking would apply.”
42. The report said that the car park would not cause significant harm to the character, appearance and setting of a nearby listed building. The report also said that the Highway Authority had confirmed that the car parking layout was workable and provided appropriately dimensioned parking bays with sufficient clear space behind each bay for vehicles to enter and exit them without undue difficulty.
43. The report noted that the hard surfacing for car parking spaces would have an impact on the openness of the Green Belt and general visual amenity. But it was considered that:
44. “Whilst it is acknowledged that the marquee and parking would be inappropriate development, the change of use [of the development] would be appropriate development….it is considered that the need for the marquee, associated structures and additional parking facilities has been adequately demonstrated and does outweigh any harm to the Green Belt….The very special circumstances are considered to outweigh any harm by reason of inappropriateness.”
45. In the part of the report that specifically considered neighbouring amenity, it noted that the Council’s environment team had not raised a concern in respect of noise nuisance from the proposed event facilities.
46. Mrs X says that the Council should have conducted an environmental report on the potential for pollution from the car park.
47. The Council said the properties, including House Y, were all within the ownership of a local organisation and said this would help limit the impact on the properties, keeping it to a minimum. Mrs X said this was inaccurate. The Council responded that ownership was not a relevant planning consideration.
48. On 25 April 2018, planning permission was granted. One of the conditions of the permission is that the marquee shall only be used in accordance with the terms set out in the Statement.

Mrs X’s complaint

49. Mrs X complained about the way the Council considered the application. She said there were a number of inaccuracies in the report. She was not satisfied the Council had properly assessed the application.
50. She complained to the Council in June 2018. She provided a photograph, showing that a vehicle had some difficulty reversing in front of her house. It appeared to have caused damage to a stone planter. She sought to demonstrate her concerns about the planned car park had merit.
51. The Council responded in July 2018. It accepted some of the statements it had made were not accurate, but said that, in planning terms, the report showed her amenity had been considered.
52. It said that, although the distance of her property had not been noted, a site visit had been conducted and it was considered as part of the overall assessment of the application.
53. It said that if noise nuisances were likely, the environmental compliance team would have said. No objections were made in terms of noise nuisance and disturbance.
54. It said the parking area is currently used and that the application sought to make this use formal. It said it could not comment on the incident she had provided photographs of in June 2018. In response to my enquiries about the photograph provided by Mrs Y, the Council pointed out that she provided these photographs after the application had been approved.
55. In September 2018, Mrs Y asked for the minutes of the environmental compliance statement.
56. She says she was told her request had been passed to the head of planning to send her a copy of the statement. However, it was not provided. Instead she was sent the consultation responses from Environmental Compliance.
57. Mrs X says she was disillusioned and left the complaint for a period before responding.
58. In May 2019, the Council said it was not possible to escalate her complaint to the next stage as so much time had elapsed since her last contact.

Analysis

59. Mrs X was concerned that the marquee would be too close to House Y. The plans the Council sent me show that the distance between her property and the marquee is significant. The Council also conducted a site visit. The evidence shows the distance between the development and her property was given due consideration. There is no fault in that regard.
60. But I am concerned that when PO1 sought ‘peace of mind’ from the Council’s environmental team regarding the potential noise that might issue from the development, the response she received from the environmental team did not address her queries. It referred to her enquiry as if it was about a TEN. It was not. The applicant was, for instance, not seeking to hold events on no more than 21 days a year.
61. It might have been that the environmental team did not mean to refer to TENs. But in that case, the team informed PO1 that the way it responds to enquiries about possible noise disturbance is to assess what noise disturbance there has been in the past and take a view on that basis. I do not see how the Council could be satisfied the response properly assessed potential noise disturbance from the new development. The marquee will have capacity for three times the number of people that currently attend events. The events that run currently are only on two days of the week. The planning permission granted allows for events throughout April to September on any day of the week.
62. The Council has a duty to properly consider the potential noise or disturbance at the development. I have not seen evidence that its environmental team properly considered the impact of noise and disturbance on residential amenity. On the evidence seen so far, this is fault.
63. Mrs X became disillusioned with the process when the Council did not provide her with its environmental report. The confused email which sets out the flawed reasoning behind the environmental team’s lack of objection to the development, will not restore her faith. A central part of maintaining the planning system is to maintain confidence in the planning system. This is fault.
64. However, I do not consider Mrs X was ultimately caused an injustice by this approach. I will explain why below.
65. PO1 specifically asked the applicant to address the impact on neighbouring amenity and it produced a Statement which addressed those issues and provided an action plan.
66. The environmental team should have also considered the Statement, particularly its claim that the development would only produce ‘limited change’.
67. But Mrs X is a significant distance away from the events planned. The Statement also set out a number of measures to mitigate the impact of events on neighbouring amenity. Importantly, activities within the marquee will be subject to separate licensing matters and be reviewed regarding potential impact by the licensing department. This indicates that going forward, the situation will be monitored and that there is an awareness of how events could affect amenity if they went unchecked. The permission granted by the Council incorporates the terms of the Statement. Given that the Statement indicated a good standard of amenity could be achieved, on balance, I consider it is likely that, even if the environmental team had considered amenity properly, the Council would have continued to approve the application.
68. Turning to the inaccuracies in the case officer report, these were regrettable. I am particularly concerned that the Council said that an ‘informal’ car park already existed. It says this was a matter of semantics, but that is not correct. Mrs X (and the Council) have provided me with photographs which show that signs were placed around the area saying parking was prohibited. Even if the land is private and even if some parking did occur, there was no informal understanding that this was acceptable. Hard paving an area to transform it into a car park did represent a fundamental change.
69. However, this was acknowledged at other parts of the report. The officer commented that the car park was ‘inappropriate’ but that the considerations around this were outweighed by the special circumstances of the development.
70. The report specifically says that the car park was required as part of the overall current and proposed operation. While the report does not set out that it fully considered the issues around safety and difficulty for cars when reversing in front of House Y, it was noted that the Highway Authority confirmed that the car parking layout was workable. The Council requested a transport statement, even though this type of development would not necessarily call for one. The Statement on neighbouring amenity considered how best to minimise the disruption to residents and the Council has therefore showed that due consideration was given.
71. In conclusion, the Council’s case officer report contained errors. These are more than matters of ‘semantics’. But it was ‘adequate’. A case officer report does not have to address each material consideration. The issues the Council considered material to the planning application were addressed. However, the errors and the way the Council handled Mrs X’s complaint, undermined her confidence in the planning system and this caused her an injustice. I have made a recommendation to address this and to address the Council’s approach to assessing potential noise issues in the future.

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Agreed Recommendations

72. Within a month of my final decision, the Council should:

• Apologise to Mrs X to acknowledge the distress caused by its approach to this planning application.

73. Within three months of my final decision, the Council should review how it assesses potential noise issues connected to developments. It should provide a statement to the Ombudsman setting out its consideration and any steps it has taken.

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Final decision

74. I have found the Council was at fault and that this fault caused the complainant an injustice. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman