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London Borough of Richmond upon Thames (20 009 133)

Category : Planning > Other

Decision : Upheld

Decision date : 26 Jul 2021

The Ombudsman's final decision:

Summary: Mr X said the Council wrongly discharged a planning condition that was meant to protect his home from unacceptable noise from nearby development. We found the Council’s decision making lacked clarity about the noise reduction measures achieved by the development. This lack of clarity did not affect the Council’s decision to discharge the planning condition. However, it caused Mr X avoidable frustration, for which the Council agreed to apologise.

The complaint

  1. Mr X said the Council wrongly discharged a planning condition about noise from a commercial extractor unit. Mr X said he suffered daily with unacceptable noise from the extractor unit. Mr X wanted the Council to remove or change the extractor unit so the noise it produced did not exceed existing background noise.

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The Ombudsman’s role and powers

  1. 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 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)
  2. 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)
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  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

  1. I:
  • considered Mr X’s written complaint and supporting papers;
  • talked to Mr X about the complaint;
  • considered planning information available on the Council’s website about the development;
  • asked for and considered the Council’s comments and supporting papers about the complaint;
  • shared Council information with Mr X; and
  • gave Mr X and the Council the opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

Planning and noise

  1. The British Standard, ‘BS:4142 method for rating and assessing industrial and commercial sound’, provides guidance on measuring the potential noise impact of development on nearby homes. Planning applications may include a report assessing the likely noise impact of proposed development based on the BS:4142 guidance. Councils, as local planning authorities, will consider such noise assessments in deciding whether the proposed development is acceptable on planning grounds.
  2. BS:4142 provides complex guidance and recognises people with appropriate training and skills should carry out noise assessments. Put briefly, using BS:4142 produces a ‘background sound level’ (without the development noise) and a ‘rating level’ for the development noise, as measured at the ‘sensitive receptor’ (nearby home). Generally, the greater the difference between the background and rating levels, the greater the impact of the development noise. If the development noise is about 5dB higher than the background noise level, this generally indicates an adverse impact, depending on the context. If the development noise is 10dB (or more) higher than the background noise level, this indicates a significant adverse impact, depending on the context. A significant adverse impact is not normally acceptable and is likely to result in noise complaints.
  3. The 2012 National Planning Policy Framework (NPPF) applied when the Council considered the planning applications relevant to Mr X’s complaint. The 2012 NPPF said, at paragraph 123, planning decisions should aim to:
  • avoid noise leading to significant adverse impacts on health and quality of life because of development; and
  • mitigate and reduce to a minimum other adverse impacts on health and quality of life arising from noise from development, including by using conditions.
  1. Paragraph 123 of the NPPF referred to the Government’s 2010 Noise Policy Statement for England (NPSE). In managing and controlling noise given national policies for sustainable development, the NPSE also aimed to:
  • avoid significant adverse impacts; and
  • mitigate and minimise adverse impacts,

on health and quality of life.

  1. The NPSE, in addressing ‘significant adverse’ and ‘adverse’ impacts, referred to a ‘significant observed adverse effect level’ (SOAEL) and ‘lowest observed adverse effect level’ (LOAEL). The NPSE says SOAEL is not a fixed measurement but will vary depending on circumstances or ‘context’. The NPSE also says where an impact falls between LOAEL and SOAEL, all reasonable steps should be taken to mitigate and minimise adverse effects but “this does not mean that such adverse effects cannot occur”.

Planning enforcement

  1. A failure to comply with a planning permission and its conditions is a breach of planning control. Councils should investigate reported breaches, but they do not have to act on every breach they find. Rather, they have a power to take planning enforcement action. The NPPF says councils should “act proportionately in responding to suspected breaches”.
  2. The Government’s National Planning Practice Guidance (PPG) says councils should have regard to what the NPPF says about enforcement. The PPG also repeats that enforcement should be proportionate and recognises that formal action may not be appropriate. The PPG suggests when councils “should usually avoid taking formal enforcement action”, including:
  • a trivial or technical breach that causes no material harm or adverse impact on amenities; and
  • development that is acceptable on its planning merits and formal action would be solely to regularise it.

Statutory nuisance

  1. Councils must take reasonable steps to investigate potential ‘statutory nuisances’, which may include noise, smoke and artificial light from land and buildings. To be a statutory nuisance, the issue must:
  • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
  • injure health or be likely to injure health.
  1. There is no fixed point at which something becomes a statutory nuisance. Councils will gather and assess evidence of what is happening, where, when and how. Their trained and experienced officers will then use their professional judgement to decide if a statutory nuisance exists.
  2. People may take private action against an alleged nuisance in the magistrates’ court. If the court finds the person is suffering a statutory nuisance, it can order those responsible to limit or stop it. It is good practice for councils to draw attention to this private legal right where someone reports a potential a statutory nuisance.

A summary of what happened relevant to the complaint

  1. Mr X lives near a business that has changed hands over the last few years. A former owner of the business replaced an extractor system on the land with a larger unit (‘the Unit’). The Council’s planning and environmental health officers investigated after receiving complaints, including from Mr X, about noise from the Unit. In writing to Mr X, a Council environmental health officer (EHO) said, ‘the standard for planning protection of amenity is higher that that of nuisance, therefore I consider planning the most appropriate regime to deal with this matter’. The Council then asked for, and the owner made, a retrospective (after the event) application for planning permission for the Unit. The owner included a noise report with the application (‘the First Noise Report’).
  2. The First Noise Report said discussions with a Council environmental health officer (EHO) suggested the Council would accept ‘a rating level for the Unit no greater than existing background noise’. Noise was measured from the nearest house to the Unit, which was not Mr X’s home. The First Noise Report gave:
  • 48dB as the ‘noise limit’;
  • 56 to 60dB as the rating level; and
  • +8 to +12dB as the difference and likely to suggest a significant adverse impact, depending on context.

The First Noise Report suggested changes to the Unit, which it calculated would reduce noise to the Council’s required 48dB.

  1. The Council, as local planning authority, considered the application, including consulting its environmental health officers. The Council also publicised the application and received objections from residents, including about noise from the Unit. Council planning officers prepared a report assessing the application (‘the First Officer Report’). The First Officer Report referred to the Council’s local planning policies, including about protecting nearby homes from unreasonable loss of privacy, pollution, noise, and disturbance (‘the Policy’). And it identified the Unit’s impact on residents’ amenities as a main planning issue in deciding the application.
  2. The First Officer Report also referred to the First Noise Report saying it showed the Unit exceeded background noise levels and “…the criteria required by the Council”. And changes to the Unit proposed in the First Noise Report would “…reduce noise levels to conform to the Council’s noise criteria”. The First Officer Report also said the Council’s EHOs had no objection to the Unit subject to two planning conditions. One condition sought to ensure the Unit was changed as proposed in the First Noise Report. The other condition asked for a second noise report to show the changes had achieved “…the noise limiting levels detailed in the [First Noise Report]”. The Council’s planning officers said, with those conditions, they were “satisfied” the Unit could “…comply with the Council’s minimum noise standards”. And this would protect residents from unreasonable noise pollution arising from the Unit. The First Officer Report concluded that, with planning conditions, the Unit would be consistent with planning policies, including the Policy.
  3. The Council granted planning permission for the Unit, including a noise condition, in two parts, to secure changes to the Unit and a further noise report (‘the Noise Condition’). Its reason for applying the Noise Condition was: “to ensure the development does not represent an unneighbourly form of development”.
  4. Later, the business owner applied to the Council to discharge the Noise Condition. (Discharging a planning condition means a council, as local planning authority, confirms a developer has complied with the planning condition.) The application included a noise report (‘the Second Noise Report’). The Second Noise Report had measured noise from the nearest home to the Unit and outside another property. This second property was Mr X’s home. The Second Noise Report said when the Unit worked at maximum capacity “noise could be heard albeit at very low levels” but was “inaudible” from outside Mr X’s home. Use of the Unit at ‘maximum’ was “rare” and resulting noise was “below the threshold sound level likely to cause nuisance”. And, when the Unit worked at its normal, reduced, capacity, it was “inaudible” at both properties. The Second Noise Report concluded the Unit, when working at “a typical level” produced noise levels below those of a “noise offence”. And below noise levels the World Health Organisation (WHO) considered unacceptable.
  5. Councils do not have to, and normally do not, publicise applications to discharge planning conditions. And, here, the Council did not publicise the owner’s application. The Council’s planning officers consulted their EHO colleagues about the Second Noise Report. Planning officers then prepared a report assessing the discharge application (‘the Second Officer Report’). The Second Officer Report set out the response from the Council’s environmental health team as:
  • the information in the Second Noise Report was “insufficient” to discharge the Noise Condition;
  • an EHO had undertaken a noise assessment and found noise “marginally” above that needed by the planning condition;
  • “in the context of the site, this exceedance [was] within an acceptable range”; and
  • the EHO considered the Noise Condition could be discharged.

(The Council now says it made a ‘pragmatic’ decision to accept the ‘insufficient’ Second Noise Report rather than seek more information from the business owner.)

  1. The Second Officer Report recommended approval of the application. The Council discharged the Noise Condition referring to a photograph and information that showed the physical appearance of the Unit had changed since the grant of retrospective planning permission.
  2. A few years passed during which Mr X said he continued to find noise from the Unit unacceptable. I saw no evidence Mr X reported noise problems about the Unit after the discharge of the Noise Condition until 2020. Different Council EHOs looked into Mr X’s 2020 noise report, including visiting the site. (The EHO that responded to the internal consultations on the retrospective and discharge of condition planning applications had by then left the Council’s employment). The Council says one of its EHOs spoke to Mr X at his home, where noise from the Unit was “audible” but not a statutory nuisance. The EHOs also met with the business owner and discussed maintenance of the Unit and other noise producing equipment on the site. (A later EHO visit found use of the Unit across all settings produced no audible noise next to nearby properties, including Mr X’s home, “despite the very low ambient noise conditions”.)
  3. In writing to Mr X, the EHO referred to background noise levels (which, usually, included traffic on the adjoining ‘A’ road and air traffic to/from Heathrow Airport). The EHO also said the continuing, but temporary, COVID-19 emergency had led to a general reduction in background noise. This meant established noise sources were “becoming more noticeable” but, background noise should return to, or near to, pre COVID-19 levels as restrictions eased. The EHO confirmed that, as with previous investigations into the Unit, there was no statutory nuisance. The EHO also signposted Mr X to his legal right to apply to the courts about nuisance.
  4. Mr X then found out about the earlier discharge of the Noise Condition. Mr X reported a breach of planning control to the Council’s planning enforcement officers. Mr X said noise had increased in recent months suggesting the changes made to the Unit had broken down. Mr X also said the Unit had changed from that shown on discharge of the Noise Condition.
  5. Mr X also asked the Council for a copy of the EHO's noise assessment referred to in the Second Officer Report. The Council’s EHO told Mr X there was no record of that noise assessment. The EHO said this was not unusual because there would have been a “simple acoustic measurement of the [Unit] when switched on/off at the nearest noise sensitive façade”. This would then allow direct comparison with the background noise level to confirm compliance.
  6. Mr X expressed his disappointment and alarm there was no record of the assessment and questioned if it had taken place. Mr X asked the Council to carry out, and record, a noise assessment. The Council refused and repeated that not recording such assessments was not unusual and reflected the demands on its officers’ time.
  7. Meanwhile, the Council’s planning enforcement officer visited the site to see the Unit and liaised with both the business owner and the EHO. The planning enforcement officer found the Noise Condition for the Unit had been discharged some years earlier. And investigation of noise from the Unit, including an EHO visit, found no noise issues. The enforcement officer wrote to Mr X saying changes to the Unit were so minor they did not need planning permission; and they did not affect noise from the Unit. The Council closed its planning enforcement case.
  8. Mr X then complained to the Council saying it had not followed proper procedures when discharging Noise Condition. In the correspondence that followed, in brief, Mr X’s position was:
  • the First Noise Report found unacceptable noise levels and required measures to reduce them to 48dB;
  • the Second Noise Report did not confirm that noise levels of 48dB had been achieved and sought to deflect attention from that by referring to noise offences and WHO guidance;
  • the Council’s EHO then accepted that non-compliance but excused it using words like ‘marginal’ but failed to record what this meant;
  • it was unacceptable for the Council to rely on vague and unsubstantiated statements that meant its decision, which affected him and other residents, lacked transparency; and
  • a reduction in noise to 48dB had never been achieved and the Council had wrongly discharged the Noise Condition.

Mr X continued to ask the Council to carry out a noise assessment and publish the results and then, if necessary, work with the owner to reduce noise levels.

  1. In response, the Council’s position, in summary, was:
  • its EHO consulted about the planning applications had enhanced acoustic qualifications and membership of the Institute of Acoustics;
  • the presentation of information in the Second Noise Report did not fully comply with its expectations;
  • its EHO, having considered the Second Noise Report and observed noise at the site, could conclude acceptable mitigation of noise from the Unit had been achieved;
  • to repeat it was not unusual to hold no records of an EHO noise assessment;
  • the EHO's actions were no different from those of a planning officer carrying out a site visit to better understand and assess a planning application;
  • its EHO had confirmed to its planning officers that, having carried out a noise assessment, in their professional opinion, the Noise Condition could be discharged;
  • its planning officers had no reason to doubt the validity of the EHO's findings and judgement;
  • its planning officers had exercised professional judgement in deciding they had sufficient information to decide the discharge of condition application;
  • the EHO's assessment was the Noise Condition had achieved its purpose in reducing noise levels to an acceptable standard that did not cause material harm to nearby homes; and
  • the failure to record the EHO's noise assessment measurements did not undermine the validity of its decision to discharge the Noise Condition.
  1. The Council also repeated that EHO visits in 2020 had observed “a very different soundscape” to that described in the First and Second Noise Reports. The 2020 visits found “very low” background noise levels that “tended towards those normally experienced in a very quiet rural context” and unlike the normal urban context of the area. However, its EHOs had found no audible noise from the Unit next to nearby properties, including Mr X’s home. The Council said it therefore had no evidence to justify further acoustic measurements to reconfirm the Unit complied with the Noise Condition.

Consideration

Introduction

  1. While the Council discharged the Noise Condition over three years ago, we investigated Mr X’s complaint as he became aware of this decision in 2020.
  2. I set out the background to the discharge of the Noise Condition as it showed the replacement Unit provoked residents’ complaints, many about noise. And, in responding to the Ombudsman, the Council recognised that significant loss of amenity often takes place at lower noise levels than needed for a statutory nuisance. In imposing the Noise Condition, the Council aimed to ensure the Unit was not ‘unneighbourly development’.

Record keeping

  1. In responding to the Ombudsman, the Council said there was a contemporaneous written note of the noise assessment “measurement value”. Its EHO recorded the information in their PACE (police and criminal evidence) Notebook that, given the passage of time, it could not now locate. The Council said the EHO would have read directly from a sound level meter and recorded “a single value”. The Council also said the EHO then emailed the outcome of the assessment to its planning officers, which provided a further written record.
  2. I recognised Mr X might be further dissatisfied at the Council’s change of position about making a record of the assessment. However, it was unlikely a council EHO, or other enforcement officer, would attend a site to investigate or view a matter without taking equipment to record contemporaneously their findings. The Council also pointed to the likenesses between an EHO and planning officer site visit. And the Ombudsman’s 2014 Planning Focus Report says we expect planning officers to make notes and take photographs to record what they find on site visits. It was disappointing the Council could not now find the PACE Notebook. But, several years had passed, and passed without the Council receiving reports of problem noise from the Unit. On balance, I found the evidence supported an EHO site visit and likely entry of the assessed ‘single noise value’ in a PACE Notebook. And, given the years now passed, I did not find the Council at fault in not now being able to produce that PACE Notebook.

The discharge of the Noise Condition

  1. I found the Council would have recorded the assessed ‘single noise value’ in the EHO's, lost, PACE Notebook. This contemporaneous record could not now be verified as the EHO did not give the recorded figure to the Council’s planning officers. So, the Council did not hold the figure with the planning information about the discharge of condition application. Neither did the figure appear in the Second Officer Report.
  2. The Council could accept and act on the views and judgements of its professional officers, including its EHOs. And, here, it was right to consult the environmental health team about the discharge of the Noise Condition. However, the Council was acting as the local planning authority with its ‘higher standard’ of amenity protection compared to statutory nuisance (see paragraph 17). It therefore needed to reach an informed view, as local planning authority, to discharge the Noise Condition. I saw no evidence to suggest the Council’s planning officers knew what the EHO meant in finding noise ‘marginally exceeded’ that required by the Noise Condition. On its face, the Second Officer Report did not clearly explain what noise mitigation had been achieved.
  3. The Council’s response to the Ombudsman provided more information about its approach to mitigating noise from the Unit. The Council commented further on BS:4142, LOAEL, SOAEL and the First Noise Report. The Council said BS:4142 required a ‘representative’ background noise level but, the First Noise Report used measurements from late on a Sunday evening. Those measurements “significantly underestimated” what was ‘representative’ and provided “extremely conservative” background noise levels. This meant the identified noise mitigation was “considerably greater” than needed for ‘representative’ background noise levels. (The Council also pointed out the Second Noise Report figures were measured, not late Sunday evening, but Wednesday daytime. And those figures showed “the daytime ambient noise levels [were] significant”.)
  4. The Council said to avoid an unacceptable loss of amenity, noise should be limited to a point between LOAEL and SOAEL in line with the NPSE. The noise level sought by the First Noise Report was “onerous” and exceeded a point between LOAEL and SOAEL. However, it was not unreasonable to refer to the First Noise Report in the Noise Condition. But the Noise Condition did not expressly give the First Noise Report’s 48dB noise limit. This was because “a single metric value provides no spectral detail of the plant emissions” and it was only part of the standard/criteria for the Noise Condition. The Council said the ‘context’ suggested a suitable rated level difference nearer to 5dB than 0dB. And consideration of Institute of Environmental Management and Assessment guidance, led it to find “a rated difference of up to 3dB would be acceptable”.
  5. The Council also said the courts had held that a planning permission, and its conditions, should be interpreted by a reasonable reader and with common sense looking at the planning purpose. Here, the Noise Condition was to ensure the Unit was not unneighbourly development. It had not sought for the Unit to be inaudible. Its EHO's observations showed the purpose of the Noise Condition had been satisfied and there was no demonstrable harm to amenities. And, given its views on the findings of the First Noise Report, a ‘marginal exceedance’ was acceptable. A refusal to discharge the Noise Condition would not have been sustainable should the business owner have exercised their legal right to appeal such a decision.
  6. I had no reason to doubt the Council’s technical assessment of the First Noise Report. However, I saw no evidence the Council raised concerns about it being ‘onerous’ and not ‘representative’ when granting the Unit planning permission or, later, discharging the Noise Condition. Rather, a reasonable reader using common sense would see a direct link between the Noise Condition and the First Noise Report, which identified 48dB as the ‘mitigated noise limit’.
  7. It would not necessarily be fault for the Council, in considering an application to discharge the Noise Condition, to accept a mitigated noise limit that exceeded that in the First Noise Report. The Council could decide that steps taken to mitigate noise meant the Unit was not ‘unneighbourly development’ although it continued to exceed the limit set out in the First Noise Report. What good administrative practice required of the Council was that it show why it decided to discharge the Noise Condition in such circumstances. Setting out the relevant issues also allows people most likely affected by planning decisions, to ‘reasonably and using common sense’ understand how a decision has been reached. Here, the Council’s decision to discharge the Noise Condition did not provide clarity or transparency about the noise limit achieved for the Unit and what ‘marginal exceedance’ it found ‘acceptable’. The lack of clarity and transparency in the Second Officer Report meant it fell below acceptable administrative standards. I therefore found fault in the Council’s decision making.

Was there injustice?

  1. Having found fault, I considered whether that fault caused Mr X direct and significant injustice.
  2. I have referred to the Council’s technical comments about the First Noise Report at paragraphs 40 to 42, which it made after its planning decisions for the Unit. I also considered relevant national and local policies and guidance, including the NPPF, PPG, NPSE and the Policy, and the Noise Condition ‘reason’. I recognised many people might understandably view comments made after an event as mere justification rather than an objective explanation of a decision. However, I found the Council’s comments, considered against the policy and guidance background, were not without merit or unsustainable.
  3. I also considered the Council’s information about noise reports. This showed that, after discharging the Noise Condition, the Council did not receive reports of problem noise from the Unit until 2020. I had no grounds or reason to question what the Council said about changes to background noise during COVID-19 restrictions in 2020 (see paragraphs 26 and 33). Aside from Mr X’s 2020 noise reports, two other local people reported noise from the Unit to the Council on the same day in 2020. The Council responded quickly to both reports but neither resident then further pursued matters. I therefore found it likely a one off/isolated incident took place resulting in these two reports. So, overall, the evidence I saw did not suggest the Unit was ‘unneighbourly development’.
  4. I also took into account that both Council planning enforcement and EHOs visited the site during 2020. While finding COVID-19 related ‘low ambient noise levels’, the Council’s officers did not find any unacceptable noise. They also considered the Unit was ‘just audible’ outside nearby properties and ‘inaudible’ outside Mr X’s home. In responding to the Ombudsman, the Council also said that noise levels witnessed at the front of nearby homes would be “significantly lower within the habitable rooms” of those properties. And such levels would be “significantly below the LOAEL”. The Council said such findings did not require it to take further action, including any formal noise measurement, as either a local planning or environmental health authority. The Council’s planning enforcement officer also found no changes to the Unit needing planning permission.
  5. I did not doubt Mr X found noise from the unit unacceptable. However, it is not my role to arbitrate on differing views about whether noise is unacceptable. The law gives the Council the powers to take planning enforcement action and to find a statutory nuisance. I was satisfied the Council had suitably and proportionately looked into Mr X’s noise concerns and then reached its views. I therefore had no grounds to question the Council’s 2020 enforcement decisions.
  6. Overall, the evidence I saw did not persuade me the Council would have refused to discharge the Noise Condition if its EHO had given its planning officers the ‘single value figure’ found on the noise assessment. I therefore found the injustice to Mr X was the avoidable frustration caused by the lack of clarity and transparency in the Second Officer Report about the mitigated noise limit.

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Agreed action

  1. I considered what would reasonably and proportionately address the injustice to Mr X that I found arising from the fault I identified at paragraph 44. I recommended, and the Council agreed, to send Mr X a written apology within 20 working days of this statement. That apology should be for the avoidable frustration caused by the lack of clarity in its handling of the application to discharge the Noise Condition.

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Final decision

  1. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendation at paragraph 51 of this statement.

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Investigator's decision on behalf of the Ombudsman

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