• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Mr X complains about the Council's decision not to approve a request for an Article 4 direction to remove permitted development rights. Mr X complains this is significantly impacting residents and the local area. The Ombudsman finds no fault by the Council in its decision not to implement an Article 4 direction. This is because the decision was made having considered the information available and current legislation for aircraft noise.

The complaint

1. Mr X complains the Council has not adequately considered the impact caused by a helicopter touring company.
2. Mr X complains the Council has denied multiple requests for an Article 4 Direction to the local area which would address the issues caused by the helicopter company.
3. Mr X complains this has had a significant impact on his health and wellbeing, and of the livelihood of other residents in the town. He would like the Council to reverse its decision and implement an Article 4 Direction.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I considered Mr X’s complaint, and the requests for an Article 4 direction made by the local Town Council. I also considered information provided by the Council. I considered Mr X’s and the Council’s comments on my draft decision.

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What I found

Permitted development rights

8. The law says owners may allow the use of their land for any purpose for not more than 28 days in total in any calendar year. (Schedule 2, Part 4, Class B of the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596))

Civil Aviation Authority (CAA) guidance and legislation

9. No single authority or organisation is responsible for the environmental impact of aviation in the UK. It is necessary to consider the distribution of activities in order to gain an understanding of the work surrounding aviation and the environment. Duties are allocated between the CAA, international organisations, Government, local authorities, a wide range of industry bodies and other interested parties
10. Aircraft noise is not currently a statutory nuisance in the UK. It is not covered by the Environmental Protection Act 1990 or the Noise Act 1996. This means that local authorities do not have the legal power to take action on matters of aircraft noise, and nor does the CAA have the legal power to prevent aircraft flying over a particular location or at a particular time for environmental reasons.

Department for Communities and Local Government (DCLG) advice and guidance on Article 4 directions

11. In deciding whether an Article 4 direction might be appropriate, local planning authorities may want to consider whether the exercise of permitted development rights would:
    • Undermine the visual amenity of the area or damage the historic environment.
    • Undermine local objectives to create or maintain mixed communities.
    • Lead to the subdivision of agricultural land other than for purposes reasonably necessary for agriculture, or to the loss of agricultural land.
    • Lead to an intensification of development in close proximity to a military or aviation safeguarding zone.
    • Have a direct and significant adverse effect on a flood risk area, flood defences and their access, the permeability of ground, and management of surface water or flood risk.
    • Lead to an intensification of development or use in areas affected by coastal erosion

What happened

12. Mr X lives in an area surrounded by green spaces and farmland.
13. Mr X’s neighbour owns a farm with a field near to Mr X’s house. In 2012, Mr X’s neighbour started to allow a helicopter touring company to use his field to take off and land during tours of the local area.
14. Mr X’s neighbour was able to do this as his permitted development rights allow for him to use his land for other means for up to twenty-eight days a year.
15. Mr X says the noise created by the helicopter landing and taking off is unbearable and takes place during the hottest time of the year. Mr X says he cannot work or open his windows and is forced to take a holiday away from his home during the peak holiday season. He says this has caused him to incur financial loss and reduced the amount he can work.
16. In 2020, a local Town Council made an application for an Article 4 direction which would remove the permitted development rights allowing the helicopter touring company to operate. There had been prior requests for an Article 4 direction from the same Town Council and other local Town Councils.
17. The request for an Article 4 direction said the noise and frequency of the helicopters was causing disruption to residents and livestock.
18. The Council refused the request for an article 4 direction. It said that an Article 4 direction is not appropriate as the reasons given by the Town Council are not linked with the DFCG guidelines about how to measure harm. It also said that other regulators are responsible for aviation noise, and that an Article 4 would not prevent the helicopter from using other space nearby.
19. The Council also said the helicopter company had been running for eight years, and it would be hard to justify applying an Article 4 direction given the company had been running for so long.
20. The Council has also said the noise created by aircrafts is exempt from statutory noise nuisance legislation, and there is separate legislation from the CAA about the noise levels created by aircrafts. It therefore cannot consider the noise the helicopter makes when considering the request for an Article 4 direction.
21. Mr X complained to the Council about its decision to not implement an Article 4 direction. He said the Council had not considered the level of harm the helicopter was causing residents.
22. The Council advised Mr X that it could not consider noise created by the helicopter when considering an Article 4 direction. It directed Mr X to approach his local MP to raise the issue in parliament or complain to the CAA if he believed the helicopter had breached the CAA guidance.

Analysis

23. The guidance from the CAA is clear that aviation noise is not a statutory nuisance. This would mean the Council would not have been able to consider the noise of the helicopter when assessing its impact or harm to the area.
24. The main reason cited by the Town Council who initially applied for the Article 4 direction was the disruption the noise from the helicopter was causing to residents and livestock.
25. As the Council could not consider the noise of the helicopter, it could only consider the other reasons raised. These reasons did not meet the criteria for harm to the local area or residents and therefore the request for an Article 4 direction was denied.
26. I sympathise with Mr X and acknowledge the stress the noise from the helicopter is having on his wellbeing. However, it is my current view the decision not to implement the Article 4 was made without fault or error.
27. In its decision, the Council suggested residents raise the matter with local MP’s, and to complaint to the CAA if residents had reason to believe the helicopter was breaching regulations. I believe this to be the suitable route if Mr X or other residents of the local area wish to pursue action on reducing the noise from the helicopter.

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Final decision

28. I have now completed my investigation. I do not find fault with the Council for not implementing an article 4 direction. This is because the Council could not consider aviation noise from a helicopter when considering the article 4 direction.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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