Summary: There was avoidable delay and unclear communication by the Council in dealing with planning conditions affecting Mr X’s development. This caused confusion and frustration for Mr X and put him to avoidable time and trouble. To put matters right, the Council agreed to formally ask Mr X to submit a noise control scheme for its approval, which will allow him to appeal to the Planning Inspectorate if it decides to refuse that scheme.

The complaint

1. Mr X says the Council is acting unreasonably and with avoidable delay in dealing with, and making decisions, about planning conditions it placed on a planning permission. Mr X says the Council’s actions have led to reduced use of the development and are causing financial loss and unnecessary time and trouble for him. Mr X wants the Council to comply with its obligations under the planning conditions and respond to the mitigation scheme he has submitted for the development.

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What I have investigated

2. The development at the centre of this complaint remains in use. I may therefore consider recent events as the Council continues to deal with the planning permission noise conditions. However, Mr X’s complaint also covers events that took place over several years before he complained to the Ombudsman, which events would be ‘late complaints’ (see paragraph 5). My reasons for not investigating back to the date of Mr X’s earliest concerns about the Council’s handling of the development are set out at paragraphs 71 and 72 of this statement.

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The Ombudsman’s role and powers

3. 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)
4. 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 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. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
7. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

8. 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

9. I have:

• considered Mr X’s complaint and supporting information;
• talked to Mr X about the complaint;
• asked for and considered the Council’s comments and supporting information about the complaint;
• shared the Council’s comments and supporting information with Mr X; and
• shared a draft of this statement with Mr X and the Council and considered their responses.

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What I found

Background

10. Most planning permissions include conditions that control the approved development. Planning conditions should be:

• necessary
• relevant to planning
• relevant to the development to be permitted.
• enforceable.
• precise; and
• reasonable in all other respects.

11. Sometimes, a planning condition will say a developer must submit more information to the council for its approval. For example, a developer may need to get the council’s approval of the roof tiles and bricks to be used for a new building. To comply with such conditions, the developer must pay a fee and make a formal application to ‘discharge’ the condition.
12. People have legal rights to appeal planning conditions a council places on their planning permission. People also have appeal rights if a council refuses to approve details submitted to discharge a planning condition.
13. If people do not comply with planning conditions, there will be a breach of planning control. Councils should investigate reported breaches but they do not have to take formal enforcement action against every breach. Rather, councils have a discretion to act. National planning policy says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.”

14. The Council has a 2018 planning enforcement policy that reflects national planning enforcement policy. The Council also has a three stage complaints procedure, which sets time targets for responding to complaints at each stage.

The planning permission

15. The Council granted planning permission (‘the Permission’) for development (‘the Development’) that could result in noise. The Council placed conditions on the Permission to address noise from the Development (‘the Permission noise conditions’) that:

• set maximum noise levels (‘the Levels Condition’);
• (given specific circumstances) needed an acoustic assessment (‘the Assessment Condition’);
• (depending on the outcome of an assessment under the Assessment Condition) needed a mitigation scheme (‘the Scheme Condition’); and
• (as interpreted by the Council) allowed the Council to carry out an acoustic assessment (‘the Intervention Condition’).

The Council’s stated reason for applying each of the four conditions was to minimise the potential for noise nuisance and so assure compliance with a local planning policy about noise.

16. The Levels Condition applies different noise limits to ‘daytime’ and the hours between 11:00pm and 07:00am.
17. The Assessment, Scheme and Intervention Conditions deal with a specific type of noise (‘the Noise’). The Assessment Condition is triggered by the Council receiving a noise complaint about the Development. The Council may then write to the developer saying it considers the Noise is present and a reason for the noise complaint. The developer then has 21 days to appoint an independent consultant. The consultant must then take steps set out in a ‘guidance note’. No copy of the guidance note is attached to the Permission and or clearly set out in the Permission as ‘the’ relevant guidance note. But, the ‘steps’ appear to be set out under the Scheme Condition. The Assessment Condition does not say the developer should give the Council the date a consultant is appointed and or any details of the appointed consultant.
18. The Scheme Condition effectively deals with the outcome of steps taken by the consultant appointed under the Assessment Condition. But, the first paragraph of this condition is followed by a reference to the ‘guidance note’; a description of the Noise; and the steps to be followed to investigate the noise complaint. The steps that follow include ‘the complainant’ keeping a noise log when s/he deems the Noise to be unreasonably intrusive. Once the complainant has acted, the Council must tell the developer and the consultant must then give the complainant audio recording equipment for their use. It is unclear how a complainant is likely to know whether noise that may be unacceptable to her/him is ‘the Noise’. The steps effectively require the consultant to consider the noise log and recordings and decide whether the existence of the Noise is a material contributor to the noise complaint and tell the Council accordingly. The steps also say the consultant should give the Council a copy of all recordings made and “data obtained using the switchable recording device”.
19. The first paragraph of the Scheme Condition concerns the point at which the Council has received the consultant’s opinion on whether the Noise is a material contributor to the noise complaint that has been investigated. The Council, having that opinion, may decide the Noise is present. The Council may then tell the developer and give the developer 21 days to submit, for its approval, a scheme “for the investigation and control of [the Noise]”. The Scheme Condition requires a scheme “to be implemented as approved”. Neither the Assessment nor the Scheme Conditions say the consultant’s noise report should be given the Council. And, the Scheme Condition does not refer to keeping the approved scheme.
20. The Intervention Condition is identical to the first paragraph of the Scheme Condition except that it refers to a different guidance note. (The Council now confirms there is an error and there is only one relevant guidance notice. It remains unclear what the error is as the Council has confirmed that both guidance notes are ‘the’ correct guidance note.) The Intervention Condition does not continue, as does the Scheme Condition, with the steps the consultant should take to investigate the noise complaint.
21. The Council, in first clarifying the Permission noise conditions, said the Intervention Condition ran parallel with the Scheme Condition and allowed it to act if the developer failed to comply with the Assessment and Scheme Conditions. The Council says, as an example, it could secure its own noise assessment and, if that found the Noise materially contributed to complaints, require the developer to submit a mitigation scheme. The Council has also said the Intervention Condition ‘reinforces’ the Scheme Condition, but now accepts the Scheme Condition is robust enough to ensure Mr X “investigates any occurrence of [the Noise]”.
22. There is no evidence before me to show the Council has found a breach of the Levels Condition.
23. Mr X did not apply for planning permission for the Development. But, Mr X is now the ‘developer’ and or ‘site operator’ for the Development. Mr X therefore has responsibility for complying with the Permission noise conditions.

What happened

24. Some years ago, the Council received complaints that referred to noise from the Development. The Council investigated the complaints and then wrote to Mr X saying it believed there was a breach of conditions on the Permission. In line with the Assessment Condition, the Council gave Mr X 21 days to appoint a consultant to carry out a noise assessment. The letter did not mention the Noise referred to in the Assessment Condition as triggering an assessment. The letter also did not explain why the Council considered the Noise was present and a reason for the complaints.
25. Mr X appointed consultants. The consultant’s report identified the Noise as present during their noise survey. The Council disagreed with some of the consultant’s comments. The Council did not, in line with the Scheme Condition, ask Mr X to submit a scheme for its approval. However, Mr X made changes to the Development aimed at reducing the Noise. The Council said the changes were not effective and it received further noise complaints.
26. Mr X then appointed another consultant to survey noise from the Development. The consultant’s report (‘the Report’) found use of the Development complied with the Levels Condition. The Report also said no method for assessing the Noise had been specified. However, the Institute of Acoustics had been preparing relevant ‘best practice guidance’. The consultant said the delay in finishing the Report arose from waiting for the Institute’s guidance so it could be used to measure the Noise from the Development. In dealing with the Noise, the Report found:

• Use of the Development did sometimes result in the Noise.
• The Noise had led to complaints.
• A significant proportion of complaints were linked to specific site conditions.
• Not using the Development in a set way when those conditions existed would mitigate the problem. (The Report noted that changes to prevent use of the Development when those conditions existed had already been made before the formal issue of the Report (‘the Changes’).
• That while the recommended mitigation scheme would minimise the Noise, use of the Development would continue to result in the Noise being audible on occasions.

27. The Report also identified noise linked to physical conditions at nearby properties and not the Development. The Report set out proposed changes to those properties to address such noise. (I understand that owners of the relevant properties have refused to Mr X’s offer to upgrade their homes to address such noise.) These changes to nearby properties with the measures at bullet point four to paragraph 26 above formed the Report’s recommended mitigation scheme for the Noise (‘the Report recommended scheme’).
28. Mr X’s agent offered to show Council officers the Report. The Council replied saying the Scheme Condition was “quite specific” and needed the developer to give it a copy of the consultant’s Report. Mr X’s agent later sent the Council a copy of the Report. The Council then asked for the supporting data and later received the recordings and logs. The Council also asked for but says it never received other information. (Mr X and the Council disagree about whether the requested data was needed for the proper consideration of the Report.)
29. The Council said it had several queries about the Report. Mr X’s agent invited the Council to set out its questions but said Mr X was unlikely to want to pay the consultant to answer the Council’s questions. The Council also asked for more information. After contacting the consultant, Mr X mailed the Council commenting on information used in the Report. The Council then sought information from other sources.
30. A few months later, the Council told Mr X it considered the Report contained a data error. The Council also said it had not approved a scheme to control the Noise in line with the Scheme Condition. The Council also referred to ‘any proceedings’ it might consider necessary and asked Mr X to respond within 14 days. Mr X’s agent said the Council’s comments would be investigated but the alleged error did not affect the Report’s conclusions.
31. About six weeks’ later, Mr X told the Council the data used for the Report was accurate but there had been an error. Mr X provided an explanation for the error, which has now been corrected. Mr X also referred to a conversation with a Council planning officer and that he understood all the Council needed was an email giving details of the mitigation scheme. Mr X’s email then set out the Changes, which were already in place to control use of the Development to reduce the Noise. Mr X asked the Council to confirm “approval or otherwise” of the Changes and to say if it needed any other information.
32. A Council environmental health officer (EHO) found the Changes inconsistent with the Report recommended scheme. This was because the Changes did not operate Monday to Friday between 09:00am and 5:00pm. So, the EHO told the Council’s planning officer the Changes could not be agreed.
33. A Council planning officer told Mr X the EHO did not accept the Report findings. And, rather than say the Development should not to be used in certain conditions, the letter made a counter proposal for controlling use of the Development Mondays to Fridays between 09:00am and 5:00pm. The Council said it wished to resolve matters quickly and this could mean enforcement action against Mr X. The Council asked Mr X to respond to its suggestion.
34. About a week later, Mr X spoke to a Council EHO. The following email exchange showed Mr X believed use of the Development during the daytime Monday to Friday should be treated differently to its use at night. Mr X said that was why the Changes applied between 11:00pm and 07:00am. Mr X’s email referred to the EHO as saying the Report specified only the conditions needing mitigation and not hours of operation, for not approving the Changes. Mr X said he had asked the consultant to clarify the Report recommended scheme and would then contact the planning officer. The EHO told Mr X the Council’s planning officers could not be advised “to accept a scheme that conflicts with [the Report] and…appears to give rise to complaints.”
35. About seven weeks’ later, Mr X emailed the Council saying the consultant’s opinion was the Changes already in place for the Development were appropriate and satisfactory (‘the Email’). Mr X copied the Email to the consultant. The Council was surprised by the consultant’s reported comments, which it said were inconsistent with the Report findings. The Council said it continued to receive noise complaints and it had recorded the Noise on 25 days in the last three months. (The Council later clarified that it had received complaints on 25 days in the three months and did not have “recordings” of the Noise on those days.)
36. Over the next few months, the Council continued to tell Mr X about new noise complaints and to ask for information about use of the Development. Mr X questioned if all the noise complaints were justified and referred to other local noise sources. Mr X also pointed to evidence sent to the Council to show a complaint referred to noise when the Development was not in use. Mr X also said to accurately check records, he needed exact times when noise was reported.
37. Finally, Mr X said the Council had not given a substantive response to the Report and was swapping between its planning and environmental health powers when writing about noise. Mr X said he was frustrated by the Council’s conduct and struggled to see what he could do about unsubstantiated and subjective complaints from local people that simply did not want the Development near their homes. The Council said Mr X was being “evasive” in response to it asking for information. The Council said if Mr X believed the matter ‘closed’, it would ‘consider the relevance of the Development planning conditions to the current situation’.
38. Mr X expressed disappointment with the Council’s response given his actions to address noise complaints and the information sent to the Council. Mr X said he had done ‘everything reasonably expected and noise from the Development was reasonable’. Mr X said he had offered to meet with the Council and hoped it would take a more balanced approach to the “unfortunate situation”, which could not run on. Mr X chased the Council for a reply. The Council replied that it was “very difficult to provide a “substantive response to questions when [it] had not received responses to questions [it] had raised initially”. The Council then said no verification assessment had been made of the Noise since the Changes took place. The Council said it would be recommending Mr X carry out such an assessment as “simply assuming [the Noise had] been resolved and the ‘[Development] noise was reasonable’ without any post modification assessment would be worrying given the amount of complaints still being received on a regular basis”.
39. Mr X made a formal complaint to the Council. The Council sent a part completed response to the complaint. In the response, the Council said it was clear an updated report was needed. This was because the Council could not rely on the Email from Mr X saying what the consultant said about the Changes when they were not consistent with the Report recommended scheme. The Council also said the Email was “not adequate enough for the purposes of discharging the planning condition”.
40. Mr X continued with his complaint. Mr X pointed out he sent the Email to the consultant and the consultant had not disputed its contents. Mr X also said the consultant had not changed its views but clarified them. And, the Council could have asked for an updated report but had not done so. Mr X did not consider an update necessary but said it could be provided. Mr X also said the Council had not told him it needed information from him (or what information) to discharge the Scheme Condition.
41. The Council gave Mr X the date for its Stage 2 response. The date passed without any reply and so Mr X asked the Council to consider his complaint at stage 3. A few days later, the Council sent Mr X the remainder of its stage 1 response. At stage 3, the Council sought clarification of Mr X’s complaint and the outcome he sought. Mr X said, having cooperated fully with the Council and made many changes to the Development at significant cost, he wanted the matter settled.
42. Meanwhile, the Council wrote to Mr X and asked for “some written response from [the consultant] as a minor addendum to [the Report]”.) The Council also asked Mr X for information about use of the Development so it could assess the validity of recent complaints. The next day, Mr X sent information, including from third parties, to the Council. Council emails then show an EHO wanted added information both to verify complaints received and to confirm if the Changes were working to mitigate the Noise. A Council planning officer asked Mr X for more information.
43. Mr X replied that providing information about conditions on site and looking for complaint ‘patterns’ was pointless unless a complaint was verified. Mr X said complaint information was vague, for example, referring to ‘a.m.’ and or ‘p.m.’ and ‘analysing subjective and unsubstantiated complaints would be bad practice’. Mr X said he could adjust the Changes if complaints were verified as he remained ‘keen to work with the Council to resolve matters’. But, the Council had not yet given “any reasonable reason” why it did not approve the Changes when consultants the Council accepted to be ‘leading experts’ had recommended the scheme. Mr X said, after eight months, the Council should either confirm compliance with the planning conditions or “provide a detailed explanation” of why there was non-compliance.
44. Council officers took Mr X’s reply as showing he did not wish to provide the information it sought. In internal Council emails, an EHO said the Council did not need Mr X’s information as officers had witnessed noise ‘in person’. The EHO said continuing complaints suggested the Changes were not working to mitigate noise. And, the EHO recommended that planning officers refer the case to the Council’s Planning Committee as soon as possible to take enforcement action.
45. About five weeks later, Mr X sent the Council an update to the Report prepared by the consultant (‘the Update’). The Update, in summary, said the mitigation scheme was to minimise the potential adverse effects on sleep of use of the Development in the evening and at night. And, that daytime use of the Development “was expected to be maintained”. The Update also referred to residents refusing improvements to their properties, which work was part of the Report recommended scheme.
46. Council emails show officers did not find the Update ‘sufficiently detailed’. Officers considered the consultant was commenting on what was ‘reasonable’ and not compliance with the Permission noise conditions. The Council’s EHO told the planning officer the Changes addressed statutory nuisance issues but did not meet “the condition”. This was because from 9:00am to 5:00pm Monday to Friday no mitigation was in place to address any instances of the Noise. The EHO commented that not having mitigation in place during the day ‘could be linked to the financial viability’ of the Development. The EHO said this was not a consideration for the environmental health department whose purpose was to protect public health.
47. About three weeks later, the Council sent Mr X its final, stage 3, complaint response. The Council’s position, in summary, was:

• Matters did not appear to have been dealt with in a timely manner, but circumstances were largely beyond its control.
• There had been misunderstandings in correspondence.
• Trading allegations about neither party providing requested information was counterproductive and did not address compliance with the Development planning conditions.
• The Levels, Assessment, Scheme and Intervention Conditions were operational conditions and could not be permanently discharged.
• Mr X needed to deal with the Noise through compliance with the Intervention Condition.
• It had instructed officers to urgently assess matters to establish a formal statutory position on compliance with Development planning conditions, particularly the Intervention Condition.

48. Six weeks later, the Council contacted Mr X saying it had received more complaints and asking him for information. Mr X said the Development was working as expected and asked what checks the Council was carrying out given his concerns about residents’ making unsubstantiated complaints. Mr X was concerned, despite the stage 3 response, the Council continued to repeat its questions and ask for information and data and was not responding to the Update.
49. Three months later, a consultant acting for the Council started a noise assessment, sending the Council a draft report about two months later (‘the Second Report’). Assessment of noise in the Second Report was based on the professional judgement of the assessor. The assessor listened to noise recordings and visited the area near the Development. The site visit took place when conditions existed the Report had found resulted in the Noise occurring. Based on the site visit and a review of noise recordings the Second Report assessor considered the Noise was occurring on the day of the visit. The assessor considered it reasonable to conclude the Noise would be present during the day. The assessor therefore recommended the Changes should apply to the daytime. (Mr X says the approach taken in the Second Report is “highly flawed”.)
50. Meanwhile, not hearing from the Council for several months, Mr X contacted the Ombudsman.
51. A few weeks later, the Council wrote to Mr X saying:

• “[the Noise] continues to be a problem for residents…as the log of complaints is increasing in size”.
• the Changes did not have its agreement as local planning authority “due to residents continuing to experience [the Noise]”.
• it had confirmed its position by commissioning its own report, “the findings of which indicate a continuing problem of [the Noise].”
• “As [the Noise] is present and the implemented scheme fails to deal with it, there appears to be a breach of the planning consent”.

The letter invited Mr X’s view on the matter “especially any suggestions as to how the presence for [the Noise] could be overcome”. The letter ended saying the planning officer was instructed to report to the next meeting of the Planning Committee to recommend enforcement action. The Council says this gave Mr X 28 days to propose a new mitigation scheme. (Soon afterwards, following a request from Mr X, the Council sent him a copy of the Second Report.)

52. Mr X was surprised by the Council’s letter as it had not been in touch for months and said it was ‘heavy handed’. Mr X said it was unreasonable to take enforcement action when providing a copy of the Second Report. Mr X also said the Council gave no details of the alleged breach of planning control and so asked what condition was breached, why, and what was needed to address the breach.
53. The Council did not write back and, after chasing for a response and then talking to an officer, Mr X again wrote to the Council. Mr X said his consultant had identified “a significant flaw” in the Second Report data and had concerns about the assumptions made by the assessor. Mr X repeated the Council had provided no details of the alleged breach of planning control.
54. About two weeks later, the Council wrote to Mr X and referred to his comment about there being no contact for many months. The Council said it had last asked Mr X for information about seven months ago (see paragraph 48) but Mr X had not provided any data to help it consider the complaints it received. The Council said it had therefore decided to commission its own noise assessment and Mr X now had its results. The Council also sent Mr X complaints it had received over the last seven months and asked him to provide information about use of the Development.
55. Mr X said he had investigated and responded to the Council about the two complaints from seven months earlier. Mr X pointed out there was no requirement for him to give the Council the details it asked for on receiving a complaint. And, the Council did not need the information to respond to the Report Update (and the mitigation scheme now in place) that concluded noise levels were reasonable. Mr X said he would consider the further complaints and respond but he still awaited details of the alleged breach of planning control.
56. Five weeks after he had asked about the alleged breach, the Council told Mr X there was non-compliance with the Intervention Condition because it had not approved the Changes that sought to mitigate the Noise. The Council said continuing complaints ‘indicated the mitigation scheme in place did not work and so Mr X should reassess the scheme and submit a revision for its consideration.
57. About three weeks later, the Council sent Mr X an updated copy of the Second Report that corrected the error identified by Mr X’s consultant.

Summary of the Council’s position in responding to the Ombudsman

58. The Council recognised the Report consultant as an appropriately qualified specialist in noise from developments like the Development. The consultant’s investigation was “thorough” and the Report conclusion “agreeable”, especially in finding the Noise was present and a material contributor to residents’ complaints. The Council found the Report recommended scheme “agreeable”.
59. The Changes, although in place, existed as a ‘proposal’. This was because Mr X set out the Changes in an email and had not formally submitted a mitigation scheme, that is, made an application to discharge the Scheme Condition. What it needed from Mr X was the formal submission of a mitigation scheme that complied with Report’s recommended scheme (or was in line with any new report Mr X might commission). It could then approve a mitigation scheme that ‘controlled’ the Noise. Such a mitigation scheme, subject to a trial period, should resolve matters. But, if an agreed mitigation scheme was in place and it received a noise complaint, it would still need information from Mr X about use of the Development. Such information was necessary to satisfy it that the mitigation scheme was working when the complaint was made. It could not rely on emails from Mr X as these could give misleading or false information to protect financial interests.
60. If Mr X formally submitted a mitigation scheme that it refused to approve, Mr X would have a legal right of appeal.
61. Its position on the Changes had remained unchanged and clear: it could not approve the Changes as they were “in direct conflict” with the Report recommended scheme. The conflict being the Changes did not “control”, as needed by the Scheme Condition, the Noise from Monday to Friday between 09:00 and 5:00pm. So, there was a breach of the Scheme Condition as the Noise was uncontrolled during those times. It had repeatedly told Mr X the Changes were unacceptable. And, Mr X had not submitted a new/revised scheme for approval as needed by the Permission noise conditions.
62. It had repeatedly asked Mr X to provide information about use of the Development so it could assess complaints. The information would confirm both if the Development was in use and, if so, the operational conditions when the complaint was made. This would allow it to determine whether the Report recommended scheme was in place.
63. The Assessment, Scheme and Intervention Conditions met the ‘six tests’ and without them, it would have refused the Development planning permission.
64. Complaints were linked to the Assessment, Scheme and Intervention Conditions because receiving a noise complaint triggered an investigation to assess if the Noise was a material contributor the complaint. And, mitigation under the Scheme Condition was “purely implemented for the purpose of minimising the potential for noise nuisance, thus reducing and resolving complaints”.
65. Rather than immediately take formal enforcement action, it had tried to negotiate an amicable solution to the Noise issue with Mr X. Its enforcement approach had therefore been in line with both national and its own 2018 enforcement policies.
66. It accepted complaints might be made for various reasons. And, unless there was continuous noise recording, which would be impractical, it could not know if the Noise was present/relevant to a complaint. It therefore took a complaint as suggesting the Noise was present, which triggered a noise assessment, at Mr X’s expense, under the Assessment Condition. Officers had made site visits in response to some complaints and witnessed ‘noise’ from the Development. And, the Second Report found the Noise occurred on one day.
67. Implementing an approved mitigation scheme “[might] not stop complaints being received”. But, if an approved mitigation scheme was in place (and no statutory noise nuisance existed), further action would not be justified. However, it must be satisfied the approved mitigation scheme was working on receiving a complaint, for which it would need information from Mr X as the developer.
68. Since the Changes had been in place, about 48% of noise complaints received concerned Monday to Friday between 09:00am and 5:00pm.
69. On complaints handling, the Council said the partial stage 1 response was an isolated event and arose due to a key officer’s absence. The failure to issue a stage 2 response was also an isolated incident and the Chief Executive was happy to consider the complaint at stage 3 given its complexity and the time matters had been continuing.
70. After issuing its stage 3 response, it took matters forward internally over the following seven months. The main steps taken were to compile noise complaint data and commission the survey leading to the Second Report. During this time, it contacted Mr X asking for information about use of the Development because it had received two noise complaints one evening. It could not liaise with Mr X during these seven months as it needed the Second Report to decide whether it would take formal enforcement action.

Consideration

Late complaints

71. I considered whether to exercise discretion to investigate events taking place more than 12 months before Mr X came to the Ombudsman. I took account of the Council’s handling of Mr X’s formal complaint, which took substantively longer than the 12 weeks the Ombudsman normally considers reasonable to complete a council complaints procedure. I also considered the Council’s lack of contact with Mr X after sending its final response to his complaint. And, I took into account that a third-party noise report (the Report) was issued nearly 28 months before Mr X came to the Ombudsman. And, the Report appeared central to the complaint.
72. I therefore exercised my discretion to consider the complaint starting with the Report and up to the present time. I have referred to earlier events to the extent I have found it reasonable and appropriate to properly understand the background to and context of what has happened since the issue of the Report.

Introduction

73. Mr X’s complaint about the Council’s handling of the Permission noise conditions contains several detailed points. These points include the Council’s alleged bias in how it described people reporting noise from the development. And, the tone of the Council’s contact with the owner of the development site. I recognise Mr X’s continuing dissatisfaction with the Council’s responses to these and other detailed points. And yet, I have not found it necessary or appropriate to investigate every detailed point raised by Mr X. The information before me shows the Council has provided a proportionate and adequate response to some of these points. And, I also do not find further investigation by the Ombudsman of other points is likely to provide any added and or meaningful outcome for Mr X. Therefore, the focus of my investigation is the Council’s handling of the Permission noise conditions.
74. There is no dispute use of the Development has resulted in the Noise: both sides have commissioned reports that found the Noise took place. And, despite the Council’s formal response to Mr X saying it did not accept the Report’s findings (see paragraph 33), the balance of the evidence shows the Council does accept the Report.
75. The key issue between Mr X and the Council concerns mitigation to ‘control’ the Noise. And, the process by which to resolve their differing views about what mitigation achieves compliance with the Permission noise conditions.

The Scheme Condition

76. The Council should have triggered submission of a mitigation scheme by giving Mr X the 21-day notice needed under the Scheme Condition (see paragraph 19). I have seen no evidence to show the Council did this.
77. The Council also told Mr X he could not permanently discharge the Scheme Condition (see paragraph 47). And, in coming to the Ombudsman, Mr X considered the Council would not allow him to apply to discharge that condition. However, the Council’s responses to the Ombudsman suggest Mr X needs to apply to discharge the Scheme Condition (see paragraphs 59 and 60). If the Council needed an application to discharge the Scheme Condition, it should have made this clear to Mr X soon after receiving his email about the Changes (see paragraph 31). I find the Council’s position about ‘formal submission’ of a mitigation scheme and discharge of the Scheme Condition unclear. Such lack of clarity was probably unhelpful to Mr X and likely to have caused unnecessary confusion.
78. I therefore find fault by the Council. Both in its failure to properly trigger submission of a mitigation scheme and to make clear Mr X needed to formally apply, with payment of the necessary fee, to discharge the Scheme Condition. Given these failures, I find the Council’s view that Mr X is in breach of the Scheme Condition (and or, possibly, the Intervention Condition) unsustainable.
79. The Council appears to criticise Mr X for implementing the Changes. And yet, the Changes appear to be consistent with the Report recommended scheme, which the Council finds acceptable. The issue here appears to be the Council considers the Changes should apply at additional times. The Council also confirms the Changes are not ‘development’ for planning purposes. So, Mr X did not need the Council’s approval to make the Changes (nor to remove them). (In responding to the draft of this statement, the Council said it was acting in a fair but robust manner, offering constructive advice, while warning of non-compliance with the Scheme Condition.)
80. The differing views of the parties, about when the Changes should apply, appear to arise from their respective reading and interpretation of the Report and the Update. Mr X’s view is the Changes do reflect the Report recommended scheme (less the proposals for work to residents’ homes). The Report says, ‘controls were introduced’ to the Development to mitigate the Noise shortly before the issue of the Report. And, Mr X sought the consultant’s verbal and then written view on the acceptability of the Changes. The Council’s position appears to be the Report does not expressly give time limits for applying the recommended scheme. So, the Changes, which apply time limits, do not fully comply with the Report recommended scheme. And, the Council does not accept the Update clarifies and or resolves the time limit point in Mr X’s favour.
81. Whether the Changes, which do not apply Monday to Friday between 09:00am and 5:00pm, should be approved under the Scheme Condition is not a matter I may determine. I have, however, considered how the Council handled correspondence with Mr X on that issue. The Council did not quickly and clearly tell Mr X it did not find the Email, although copied to the consultant, adequate clarification of the Report recommended scheme. Over five months passed, and Mr X had made a formal complaint, before the Council wrote asking for a written update to the Report (see paragraph 42). If the Council was dissatisfied with the Email, it should have set out what it needed much sooner and, made clear why the Email was not acceptable. I find avoidable delay here by the Council, which is fault. I have also seen no evidence to show the Council sent Mr X a formal and timely response to the Update: I therefore find fault here too.

Noise complaints and information

82. The Council has said it does not accept the Changes because it continues to receive noise complaints (see paragraphs 35 and 51). And yet, the Council accepts complaints may be made for many reasons. And, no one, including the Council can stop any person from making a complaint, for whatever reason. The Assessment and Scheme Conditions also do not control all noise that may arise from use of the Development. And, there is no evidence before me to show the Council has found the Development in breach of the Levels Condition during the period I am investigating. The Assessment and Scheme Conditions concern the Noise.
83. The Report, which the Council accepts, makes clear the Noise will continue with the recommended scheme in place. The Report also identified noise affecting residents’ property that did not arise from use of the Development. The part of the Report recommended scheme aimed at dealing with such noise appears to have been refused by residents.
84. I recognise what the Council says about it being impracticable to continuously monitor the area for the presence of the Noise. And yet, the Council’s approach, which is to assume the presence of the Noise on receiving a noise complaint, results in Mr X having to effectively ‘disprove’ that assumption. To do this, the Council expects Mr X to provide details about use of the Development and site conditions for each complaint. This may be relevant to the ‘reasonableness’ of the Permission noise conditions.
85. Mr X has not always provided all the information the Council has asked for and the Council appears to have been critical of Mr X’s failure to do so. I recognise why the Council would find such information useful: it is likely to help validate complaints given Mr X’s concerns about unfounded complaints. And, providing the information may also be helpful to Mr X’s position. However, I am unable to read the Permission noise conditions as placing an obligation on Mr X, as the developer, to give the Council the details it asks for on receiving a noise complaint.
86. The Scheme Condition required the Council to receive named information with the consultant’s ‘written opinion’ (see paragraphs 18 and 28). Here, the Council says it did not receive a ‘written opinion’. However, the Council received a copy of the Report. I cannot see any other provision on the Permission noise conditions about information sharing. I therefore find fault in the Council’s apparent criticism of Mr X for failing to provide information it has asked for on receiving a noise complaint.
87. The evidence suggests Mr X may need to contact third parties to secure some of the information the Council asks for on receiving a noise complaint. Some of the information also appears to be publicly available and so accessible by the Council without recourse to Mr X. I therefore recognise Mr X’s concerns about the time and resource implications for him of the Council’s approach, in assuming a noise complaint involves the Noise and requiring information about site conditions and use of the Development in response to each complaint. (See also paragraphs 28 and 29.)

Mitigation requirements under the Permission noise conditions

88. The Council’s correspondence with Mr X and responses to the Ombudsman also suggest the Council considers the Permission noise conditions place obligations on Mr X after an approved mitigation scheme is in place. This is because the Council has said Mr X has not formally monitored the Development since introducing the Changes to show whether the mitigation works (see paragraph 38). However, I do not read the Permission noise conditions as requiring the developer to do this. I find the Council’s apparent criticism of Mr X for failing to do this unsustainable and inappropriate.
89. The Council has also referred to a ‘trial period’ for any approved mitigation scheme; and its wish for Mr X to provide detailed information in response to any noise complaints made after implementation of an approved mitigation scheme (see paragraphs 59 and 67). I cannot see any requirement in the Permission noise conditions for Mr X to commission further surveys and reports to monitor an approved and implemented mitigation scheme or submit to a ‘trial’ period. I also cannot see any requirement that Mr X should provide detailed information in response to noise complaints after implementing an approved mitigation scheme. Again, such issues may affect the ‘reasonableness’ of the Permission noise conditions.
90. I find the Council’s views on the Scheme and Intervention Conditions unclear (see paragraphs 20 and 21). The Intervention Condition simply repeats the first paragraph of the Scheme Condition. I see no purpose or, therefore, any sustainable planning ‘need’ or ‘reason’ for the Intervention Condition. The information before me also suggests the existence of the Intervention Condition has been a source of inconsistency and so likely to cause avoidable confusion. This is because the Council’s correspondence with Mr X appears to randomly move between referring to non/compliance with the Scheme and Intervention Conditions.
91. However, the Council’s view is the Permission noise conditions meet the six tests. And yet, those conditions place obligations on third parties, for example, consultants and residents. And, the Intervention Condition, in repeating the first paragraph of the Scheme Condition, appears an unnecessary duplication. But, Mr X accepts that noise conditions ought reasonably apply to use of the Development and makes no objection, in principle, to the Permission including noise conditions. Given Mr X’s position and as the law allows developers to apply to remove and vary planning conditions, I do not pursue the point beyond my findings at paragraphs 84, 89, 90 and this paragraph 91.
92. The Council says it would not have granted planning permission for the Development without the Permission noise conditions. And yet, those conditions, as seemingly interpreted and applied by the Council, appear to place more burdensome, and continuing, obligations on the developer than apparent on first reading. This may result in the Development being unsustainable: a point the Council’s EHO referred to when commenting on the Changes (see paragraph 46). And, before responding to the Ombudsman, the Council had not made clear that Mr X, as the developer, could apply to formally discharge the Scheme (and, presumably, the Intervention) Condition. Applying to discharge the Scheme Condition could lead to an independent Planning Inspector considering the matter. This would address the apparent impasse reached Mr X and the Council about a suitable scheme to ‘control’ the Noise.

Planning enforcement

93. The Council’s position is that it has acted in line with national and local enforcement policies in seeking to negotiate an acceptable noise mitigation scheme with Mr X. I recognise that, generally, informal action is the start point for resolving breach of planning control. And, for three plus years, the Council has been receiving complaints that report unacceptable noise from the Development. Noise is an issue for many people and the Council has both environmental health and, here, planning powers to deal with noise that it finds (respectively) to be a statutory nuisance or in breach of the Permission noise conditions. In the circumstances specific to this case, I do not criticise the Council’s approach to planning enforcement.
94. And yet, if the Council reaches the position where it considers ‘informal negotiation’ will not achieve an acceptable outcome, it must be unequivocal in writing to Mr X about its position. The Council should then apply its enforcement policy, ensuring it can show compliance with its ‘general practices’, ‘enforcement procedures’ and ‘case priority assessment’. The Council should also ensure it is clear and consistent, in any taking any formal planning enforcement action for breach of the Permission noise conditions, that it acts as local planning authority and not as an environmental health authority.

The Council’s complaints handling

95. The Council did not meet all its time targets when responding to Mr X’s complaint. I have no reason to doubt what happened was an isolated event and the Council’s stage 3 response included an apology to Mr X for its delay and failure to provide a stage 2 reply. The Council’s apology has suitably addressed any injustice caused to Mr X by delays in its complaints handling.
96. However, I find the Council at fault in not contacting Mr X for seven months (other than to ask for information about two complaints), after sending its stage 3 response. Good administrative practice needed the Council to have explained what steps it was taking and why and to ‘keep in touch’ after it sent its stage 3 response. Instead, the Council left Mr X ‘in limbo’ for over seven months. It then invited his “suggestions” on overcoming the Noise while confirming it would seek councillors’ approval for formal enforcement action (see paragraph 51). This will probably have caused Mr X frustration and distress.
97. The Council’s stage 3 complaint response to Mr X accepted matters concerning the Noise had not been dealt with in a ‘timely manner’. And, concluded there had been a ‘misunderstanding’ in communication. I agree, although, unlike the Council, I do not find what happened was ‘largely beyond its control’. The Council is the local planning authority, it issued the Permission and it has the power to take formal planning enforcement action if it is satisfied there is a breach of planning control.
98. I find the Council consistent in refusing to accept the Changes as acceptable measures to ‘control’ the Noise. But, I do not find the Council has quickly, clearly and effectively explained to Mr X why, despite the Update, it does not accept the Changes are consistent with the Report recommended scheme. The Council did not explain, despite Mr X making clear he did not consider he was obliged to provide detailed information in response to each noise complaint, why it appeared to hold a contrary view. Neither did the Council communicate in a way that may have allowed the parties to reach a, mutually beneficial, agreement about whether information could reasonably be provided and analysed to help resolve their differences about the ‘validity’ of noise complaints. These issues, with others, for example, the swapping between references to the Scheme and Intervention Conditions, lead me to find the Council fell below acceptable administrative standards in communicating with Mr X. This probably caused Mr X avoidable frustration and confusion.

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Agreed action

99. I have found fault arising from the Council’s handling of the Permission noise conditions. I have also found such fault probably caused Mr X frustration, confusion and avoidable time and trouble. The impasse that now appears to exist between the Mr X and the Council is clearly unsatisfactory. It is not in either Mr X’s or the Council’s interest to have no clear and formal decision, under the Scheme Condition, on a mitigation scheme to ‘control’ the Noise. And, it is not for me to determine whether the Noise exists and materially contributes to noise complaints. I also have no role in deciding what mitigation measures will ‘control’ the Noise and may be approved under the Scheme Condition. Based on my findings in this statement, to address the injustice arising from its faults, the Council agreed (within 10 working days of this decision) to write to Mr X:

• Apologising for the inconvenience caused by its avoidable delay and poor communication in dealing with the Permission noise conditions and his complaint.
• Asking (in line with, and referring to, the Scheme Condition) clearly and unequivocally for submission of a mitigation scheme by an application to discharge the Scheme Condition.
• Offering to discuss and explore whether a mutually acceptable agreement may be possible about information sharing for noise complaints received by the Council.

100. The Council also agreed that, if Mr X applies to discharge the Scheme Condition and formally submits a mitigation scheme, it will use its best efforts to determine any such valid application within eight weeks.
101. If the Council intends to use its discretion and take formal planning enforcement action before

• the time limit it has given for submission of a mitigation scheme under the Scheme Condition has expired; or
• before it has decided a formal application seeking approval of a mitigation scheme under the Scheme Condition; or
• before any appeal against its refusal to approve a mitigation scheme formally submitted under the Scheme Condition,

the Council agreed to first clearly and unequivocally write to Mr X and explain, with reasons, why it intends to act, when, and setting out the possible consequences of its intended action.

102. Given the Council’s use of the Assessment, Scheme and Intervention Conditions on planning permissions for development like the Development, it agreed, within three months of this decision, to review the wording of those conditions to ensure it is satisfied they do meet the ‘six tests’.
103. The Council also agreed to send the Ombudsman evidence of its compliance with paragraphs 99 to 102 within 10 working days of taking each agreed action.

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Final decision

104. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs 99 to 103.

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Investigator's decision on behalf of the Ombudsman