Summary: The Ombudsman has decided to discontinue our investigation of Mr Y’s complaint about the complaint handling system established by an airport under a Section 106 agreement with the Council. This is because the Ombudsman finds the matters complained of regarding the airport’s complaints handling process did not cause any significant personal injustice to Mr Y and further investigation would not lead to a different outcome. Given this, an investigation solely into the wider issues around the Council’s handling of Mr Y’s complaint cannot be justified.

The complaint

1. The complainant, who I shall refer to here as Mr Y, complains about the complaint handling system established by an airport under a Section 106 agreement with the Council. He complains about the Council’s handling of his complaints about this matter.
2. Mr Y says he has been caused stress and distress due to the noise of aircraft movements that he says did not comply with the section 106 agreement. He says he has gone to time and trouble complaining to the Council.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

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. I considered the information provided by Mr Y and by the Council.
6. Mr Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Section 106 agreements

7. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms, known as a Section 106 agreement.
8. Section 35 of the Civil Aviation Act 1982 states that aerodromes must provide adequate facilities for consultation with users of the aerodrome, the local authority, and any other organisation representing the interests of local residents. In practice this takes the form of an Airport Consultative Committee (ACC).
9. The Environmental Protection Act 1990 includes a list of several issues that might be considered a statutory nuisance, one of which is noise. It also includes exemptions, such as noise from an aircraft. Therefore, aircraft noise, including from aircraft power units and ground movements, cannot amount to a statutory nuisance.

What happened

10. In 2010 the Council approved planning permission for a runway extension at an airport.
11. When approving the application, the Council entered into a Section 106 agreement with the airport. This set out planning obligations on the airport and included a requirement for the airport to set up a complaints handling process.
12. Mr Y lives near to the airport.
13. In August 2020, Mr Y emailed the Council with a list of aircraft landings and take-offs that had taken place over a week. Times ranged from between 6.45am and 1.15pm. He asked the Council how it had satisfied itself these aircraft movements complied with the Section 106 agreement with the airport.
14. In October, the Council replied to Mr Y referring him to its published Frequently Asked Questions document (FAQs). Under FAQ Number 15. this explains:

• “It is neither necessary (as a requirement of the Section 106 agreement), practical nor proportionate for the Council to routinely monitor or investigate the direction of every individual flight during the daytime over the course of the year. However, an annual audit of the reporting data is carried out at the Airport by a Council officer shortly after the publication of … the Airport’s Annual Report”; and
• “As compliance has been found on every occasion data has been checked, a more rigorous regime is not justified and has not been required to date by the ACC (Airport Consultative Committee) or the (additional monitoring working party for the airport)”.

15. The Council further explained:

• if Mr Y’s enquiry concerned a complaint about noise from the aircraft movements, he should complain to the airport either through its online submission form or by letter to the Noise Manager at the airport; and
• if Mr Y remained dissatisfied with the airport’s response to his complaint, then he may make representations to the ACC.

16. The Council separately responded to Mr Y’s complaint about adjustments to the airport’s complaints process due to COVID-19. The Council said:

• the ACC and the Council agreed to an amended complaints process due to the significant impact of the pandemic on the aviation industry. It explained, therefore, the change meant that the airport would only send a full response to complaints if the flight was non-compliant with the Section 106 agreement. It reassured Mr Y that, in any case, all noise complaints continued to be recorded by the airport during this period, and, therefore, potentially could be reviewed later by the ACC; and
• if Mr Y was unhappy with the airport’s conclusion that the four flights he complained about were ‘compliant’ or considered that insufficient monitoring was being carried, then he could make representations to the ACC.

17. In December, the Council sent Mr Y two stage two complaint responses. The Council explained:

• it clearly set out how the complaints process handled by the airport was run and complied with the requirements of the Section 106 agreement. It explained how the Council carries out its annual audit to ensure the airport complies with the section 106 agreement regarding aircraft movements;
• it reiterated that the airport was the correct party to complain to about aircraft movements and noise complaints, as per the Section 106 agreement;
• any data supplied by the airport operator was taken from air traffic control logs. These logs are maintained by controllers licensed by the Civil Aviation Authority (CAA). Therefore, any concerns about potential data inaccuracy should be sent to the CAA; and,
• it explained that, to address requests for improvements to the noise complaints handling service, the airport had introduced a noise complaints service similar to those used by other UK airports. The new system was called “WebTrak”, which allowed users to view all aircraft movements in the vicinity of the airport to see what aircraft flew where and at what height. This offered the user an immediate response to a flight which was of concern to them, though it was still open to the individual to subsequently complain.

18. In January 2021, the Council sent Mr Y its stage three complaint to Mr Y’s various complaints. It said:

• the agreed changes to the airport’s complaint handling process were a temporary measure due to the impact of COVID-19. It reiterated the changes that had been made;
• the airport’s Annual Report 2019-2020 explained that the increase in the number of complaints has been greatly affected by a small number of complainants. In any case, the report showed that 99.8% of complaints were found to have related to aircrafts that have been operating legitimately, within the airport’s agreed framework;
• the Council had combined responses to Mr Y’s complaints as this was a practical way to provide a single response; and,
• an investigation into the error of missing out a complaint reference number and delays in responding was not justified or proportionate. This was because it had already acknowledged these faults and apologised.

Analysis

19. Mr Y complains about the complaint handling system established by an airport under a section 106 agreement with the Council. He complains about the Council’s handling of his complaints about this matter.
20. In line with paragraph four above, however, I have decided to discontinue my investigation into Mr Y’s complaint for the following reasons:
1. Mr Y has made a series of complaints about the airport’s complaint handling system and requested the Council to investigate his complaints instead. The Council has explained on several occasions why the airport is the correct body to complain to about noise and aircraft movements. It has explained why this complies with the Section 106 agreement and invited Mr Y on several occasions to make representations to the ACC if he remains dissatisfied with the airport’s decisions about his complaints. Therefore, I find that an investigation into these issues would not lead to a different outcome. The Council has explained why there are different bodies who are expected to deal with his complaints. I do not find that Mr Y has experienced a significant personal injustice due to this aspect of his complaint either;
2. the Council has provided clear information to Mr Y as to why the airport’s complaints handling system was temporarily amended due to the impact of COVID-19. It has explained why it was entitled to make this decision and why it was justified. I do not find further investigation from the Ombudsman could add to the Council’s investigation into this point. In any case, I do not find Mr Y has experienced any significant personal injustice due to this part of his complaint. Mr Y has accessed the adjusted complaints system and it is still open to him to make representations to the ACC about its functioning; and,
3. the Council has already apologised for not providing Mr Y with a complaint reference number, the confusion this caused and for the delay involved in its stage two complaint response. Given I also do not consider Mr Y has experienced any significant injustice from the substantive part of his complaint concerning the Section 106 complaints process, an investigation into the wider issues around the Council’s handling of Mr Y’s complaint cannot be justified.

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Final decision

21. I have decided to discontinue my investigation. This is because, based on the evidence I have, I find that further investigation would not lead to a different outcome. This is because the Council has appropriately explained why other bodies are better placed to consider his complaints. Given this, I find that an investigation solely into the wider issues around the Council’s handling of Mr Y’s complaint cannot be justified.

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Investigator's decision on behalf of the Ombudsman