Summary: Mr Y complains the Council has not met with him or acted on his complaints about noise from a nearby airport. He says the airport is in breach of its planning obligations and its measurement of noise levels is inaccurate. Mr Y says noise from the airport means he cannot sleep. At this stage, the Ombudsman does not find fault in how the Council investigated the matter. We find fault in delays responding to Mr Y but this did not cause a significant injustice.

The complaint

1. The complainant, who I refer to as Mr Y, complains the Council has not acted on his complaints about noise from an airport next to his home.

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What I have investigated

2. I investigated Mr Y’s concerns the Council did not properly investigate breaches of the airport’s planning obligations and the way it responded to his complaints.

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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 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)
5. 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)
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 the information Mr Y provided and spoke to him about the complaint then made enquiries of the Council. I sent a copy of my draft decision to Mr Y and the Council for their comments before making a final decision.

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What I found

Law and Guidance

8. 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.
9. 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”). The Department for Transport (“DfT”) has published guidelines for how ACC’s should operate.
10. 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. However, there is no exemption for airports generally so it is possible that ground operations could amount to a statutory nuisance.
11. The Environmental Noise (England) Regulations 2006 (“the Regulations”) state that major airports and other non-designated airports, where aircraft noise exceeds a set amount, must produce a noise action plan. The airport must review the noise action plan at least every five years, or whenever a major development affects the existing noise situation.
12. The DfT has produced guidance called the Aviation Policy Framework. It says the government continues to expect airports to offer households exposed to levels of noise of 69 dB LAeq, 16h or more, help with the cost of moving. It also expects airports to offer acoustic insulation to noise-sensitive buildings, such as schools and hospitals, exposed to noise of 63 dB LAeq, 16h or more. Airports should also consider financial assistance towards acoustic insulation for households.
13. The Civil Aviation Authority (“CAA”) requires airports to produce contour maps showing information on noise levels every two years.

Background

14. Mr Y lives next to an airport. His back garden backs on to a part of the airport that includes a taxiway from the main terminal to the runway. The airport is not designated as a major airport but its noise levels exceed the amount in the Regulations so it must produce a noise action plan.
15. In 2010 the Council approved planning permission for a runway extension at the airport. The Council owns the land and rents this to the airport. However, geographically, the land is split between the Council and another local authority area. Most of the airport is situated in the other area, as is a nearby industrial estate that has several businesses connected to the airport. Part of the runway is in the Council’s area. Mr Y’s house is also in the Council’s area. His street is the closest to the runway.
16. When approving the application, the Council entered into a Section 106 agreement with the airport. This set out planning obligations on the airport and includes a Quiet Operations Policy (“QOP”). I have listed several requirements of the QOP that are relevant to this complaint below:
• Not to exceed a set number of air traffic movements (“ATM”) per year, or a set number of night ATM’s per month.
• The airport to establish a public noise complaint handling service and noise monitoring system.
• The noise monitoring system to include two fixed noise monitoring terminals at approved locations and, from time to time, as required, one mobile noise monitoring terminal to assist in verifying ground noise and reviewing noise complaints.
• To prepare a contours map showing the boundaries at which the 69 DB and 63 dB limits are reached based on 16-hour daytime noise. To implement a property acquisition and sound and thermal insulation grants scheme (“the Grants Scheme”) based on the respective levels.
• To submit a scheme to the Council to promote quiet ground operations at the airport and operate the airport pursuant to that scheme.
• To produce an annual report to the ACC, which shall include, among other things: (c) the effectiveness of the Quiet Operations Policy and performance of noise monitoring procedures including details of any breaches, (d) a summary of all noise complaints received in the last 12 months and any action taken to mitigate any adverse effects identified, (k) the total number of ATM’s itemised by class such as cargo ATM, delayed ATM etc.
17. In line with the s106 agreement, the airport has submitted a Quiet Ground Operations Scheme (“QGOS”) to the Council. This scheme says, in general aircraft engines shall be operated so as to minimise noise when on the ground. It says the airport will take reasonable steps to ensure Fixed Electrical Ground Power (“FEGP”) shall be used where fitted in preference to Ground Power Units (“GPU”) or Auxiliary Power Units (“APU”). It says APUs on passenger aircraft shall not be used for more than 30 minutes before departure or after arrival. It says the assessment and limitation of noise from GPUs will have regard to the assessment methodology and guidance within British Standard 4142.
18. Mr Y has ongoing concerns about noise from the airport. He has raised concerns with the airport on many occasions. He has links to a local residents’ group that has also raised concerns with the airport, ACC and the Council.
19. In December 2019, Mr Y complained directly to the Council about the impact of noise from aircraft and baggage carts. He said there was a lack of consultation with residents when the Council produced the s106 agreement and asked the Council to make changes. He asked for a meeting between residents and the Council.
20. The Council responded that it could not change the s106 agreement unless the airport applied to modify it. It said it monitored compliance with the agreement annually and the airport was not exceeding its current limits on ATM’s. It said that if noise levels exceeded 63 dB, residents could access the Grants Scheme. It said the Council would not meet residents as the airport was responding to complaints and there were no breaches of the s106 agreement.
21. Mr Y was not happy with the response and escalated his complaint to the second stage in June 2020. He said the airport had carried out a noise survey in 2019 and found 84 dB levels on the taxiway next to his house. However, as it was not a recognised noise monitoring point it was not counted for the Grant Scheme. He said aircraft often hold for 15 minutes or more on the taxiway and vehicles are constantly moving there from the hangar on the northside of the airport, making noise.
22. The Council did not respond until October 2020. It suggested Mr Y request use of the mobile noise monitor from the ACC. It said the Council does not have control of operations on the taxiway other than what is in the s106 agreement.
23. Mr Y escalated his complaint to the third stage. He said he had been asking for the mobile noise monitor for two years and was refused. He said the Council had failed to acknowledge residents’ entitlement to this. He raised concerns about the change of use of a maintenance hangar on the north side of the airport to a cargo hub and the increased operations that resulted from this. He said the airport was using APUs and GPUs for longer than 30 minutes, sometimes up to an hour and 20 minutes, before and after each arrival and departure. He said this was a breach of the s106 agreement and residents were collating evidence of these breaches.
24. The Council responded in December 2020. It said its environmental health team would investigate the issue over APUs and GPUs to establish if there was a breach. It said in response to requests for the mobile noise monitor, the airport had completed an independent noise report. It had assumed this report superseded any requests for the monitor. It said it was for the ACC to decide if use of the monitor was appropriate. The Council said again it would not meet with residents as the airport has a comprehensive complaint system and the ACC. It said the cargo hub was in the other local authority’s area. The other local authority had found it was not a change of use needing planning permission.
25. In July 2021 the Council wrote to Mr Y with the outcome of its environmental health team’s investigation. It said it did not find the ground operations amounted to a statutory nuisance and there was no breach of the s106 agreement. It said it had found evidence the airport had used APUs for more than 30 minutes on occasion but for cargo aircraft and not passenger aircraft. The QGOS only refers to passenger aircraft so the use of the APUs on cargo aircraft was not a breach. It said it would raise this with the airport and look at potential changes it could make as part of the next review of the QGOS.
26. The Council also informed Mr Y it had not found a statutory nuisance from the ground operations. It said the character of the area was relevant to whether there was a statutory nuisance. It said the use being an airport, this type of noise would be typical for the area. The Council also said it believed the airport would have a best practical means defence.
27. The Council referred Mr Y to the airport’s website, which has details of how to request the mobile noise monitoring terminal.

Findings

28. I understand noise from the airport is a long-standing issue of concern for residents and many, including, Mr Y have made complaints over the years. I can only consider whether there is any fault in the way the Council has investigated complaints and decided whether to act in line with the powers available.
29. The Council has enforcement powers to investigate statutory nuisance. It also has powers to enforce compliance with the planning obligations placed on the airport by the s106 agreement. I have therefore investigated the Council’s actions in the following areas:
• How the Council decided whether there was a breach of the s106 agreement
• How it decided whether there was a statutory nuisance
• How it responded to Mr Y’s complaints
30. However, this is the extent of the Council’s role. I accept the Council cannot make any changes to the s106 agreement unless the airport itself makes a new application for planning permission. The Council can only investigate whether the airport is in breach of the existing conditions.

Breach of the s106 agreement

31. I do not find fault in how the Council decided the airport was not in breach of planning obligations.
32. The Council has provided evidence that it monitors compliance annually. As part of this the airport must provide the number of ATMs it has each month. The spreadsheets provided show the total number of ATMs does not exceed the limits put in place by the s106 agreement. Therefore, I cannot find fault with the Council for finding there was no breach in terms of number of ATMs.
33. Mr Y says the airport breached the s106 agreement as it operated APU’s for longer than 30 minutes. The Council investigated and found the airport had operated APUs for longer than 30 minutes but only on cargo aircraft, rather than passenger aircraft. The QGOS only specifies passenger aircraft. Therefore, the use for longer than 30 minutes on cargo aircraft was not a breach of the s106 agreement. The Council notified Mr Y of its decision. I cannot question the merits of its decision and there is no fault in how the Council investigated this matter.
34. The Scheme also forms part of the s106 agreement. Mr Y says the airport has not properly administered the Scheme as it did not include his house in the 63 dB contours, despite the line going through his house. The Council investigated and found it could not enforce that the airport includes houses where the border of the contour partially went through the property.
35. I do not find fault in the Council’s response. The Council’s role is to enforce the s106 agreement. The 106 agreement requires the airport to provide the Scheme. However, it does not specify whether houses partially within the contours should be included. I cannot see the Council has a role in enforcing the particulars of the Scheme outside of what is specified in the s106 agreement.
36. I also note the evidence from the Council and my conversation with Mr Y suggests the airport did offer discretionary assistance under the Scheme. However, Mr Y believed the help on offer from the Scheme was not adequate as it only offered 50% of the cost of double glazing. I cannot investigate whether the Scheme itself is fit for purpose as the Scheme was put in place several years ago, so this is out of time. Also, the Scheme is in line with the DfT Aviation Policy Framework.
37. I do not find fault in how the Council considered Mr Y’s request for use of the mobile noise monitoring equipment.
38. Mr Y says the s106 agreement allows him the right to its use. This is not my reading of the s106 agreement. It says the airport must make the noise monitor available ‘from time to time’ to assist investigations of complaints and monitoring ground noise. This does not mean the airport must provide it on any request. It gives some scope for discretion on the airport’s part about when and where it will deploy the monitor.
39. Mr Y has provided evidence he requested use of the monitor at least two years ago. The airport did not provide this. However, I cannot investigate the airport’s actions, only that of the Council. The first I can see that Mr Y raised this with the Council, was in his second stage complaint in June 2020. There was some delay in the Council’s response, which I have dealt with in the following paragraphs. But when it responded the Council referred Mr Y to the ACC to ask for the monitor, then said it would support him in making the request. The Council therefore acted on Mr Y’s complaint and supported his request for the monitor’s use.
40. I also note that both the Council and Mr Y say using the monitor at this moment in time would not be beneficial as ATM’s are reduced due to the pandemic.
41. Mr Y says his main concern is about the accuracy of the two-yearly report produced by the airport’s consultants, showing the contour maps. Mr Y says he wants the Council to ensure the report is accurate.
42. Again, the Council’s only role would be to enforce the s106 agreement. The agreement says the airport must review the contours every two years, as does the CAA. The airport has complied with that requirement. I would not expect the Council to be responsible for checking each part of the report and I would not be able to make any findings about whether a report produced by consultants with specialism in that area was accurate. The airport has complied with the s106 agreement by engaging a firm of consultants with specialism in that area.

Statutory nuisance

43. I do not find fault in how the Council investigated whether there was a statutory nuisance. The Council considered the information Mr Y provided. It set out its reasons clearly, in that the type of noise identified was typical for an airport so was not unusual when taking into account the character of the area. I cannot question the merits of the Council’s decision.

Complaint responses

44. I do not find fault in the content of the Council’s complaint response. The Council responded to each of Mr Y’s concerns in its responses. It set out a clear rationale for its findings and explained any further action it would take.
45. Mr Y says the Council did not tell him he needed to complain to the other council about the alleged change of use to the hangar until its last response. This is correct but I can only see that Mr Y raised this issue in his third complaint letter. The Council could not have responded before then as it was not an issue Mr Y had raised. Therefore, I do not find fault in that respect.
46. There was a four-month delay in the Council responding at the second stage of the complaint procedure, between June and October 2020. This is fault. However, it is my view this did not cause a significant injustice to Mr Y as it did not change the outcome of the complaint in any way. Also, the investigation of breaches of the 106 agreement and statutory nuisance would always have taken a relatively long time due to the complex and technical nature of the issues involved.

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Final decision

47. I have not found fault in how the Council investigated the matter. I find fault in delays responding to Mr Y but this did not cause a significant injustice.

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Parts of the complaint that I did not investigate

48. I did not investigate Mr Y’s complaint about the change of use of a hanger. This is because the hangar is in another council’s area and any complaint would be for that council.

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Investigator's decision on behalf of the Ombudsman