Summary: Mr and Mrs B complain about the Council’s decision to grant planning permission for a new housing development near to their home. They complain they were not notified of the reserved matters planning application and that the Council failed to respond to their complaints about noise and other disturbance from the site once work started. There was no fault by the Council.

The complaint

1. Mr and Mrs B complain about the Council’s decision to grant planning permission for a new housing development near to their home. They complain they were not notified of the reserved matters planning application and that the Council failed to respond to their complaints about noise and other disturbance from the site once work started. They consider the development has an unacceptable impact on their home and that the disturbance during the works was excessive and had a considerable impact on their enjoyment and use of their home.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered the complaint and documents provided by Mr and Mrs B and spoke to Mr B. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr and Mrs B and the Council and considered their comments.

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What I found

Summary of events

5. The Council granted outline planning permission for a housing development in 2014. Mr and Mrs B objected to the proposals. A reserved matters application was submitted in late 2016. The Council granted planning permission in July 2017. The approved scheme was for houses along the side of Mr and Mrs B’s home and also at the end of their garden. Work started on the site in around February 2018 and Mr and Mrs B complained to the builder about noise from the site and in May they complained to the Council about disturbance from the site.
6. In February 2019 Mr and Mrs B complained again to the Council about disturbance from the site. They continued to complain over the summer. The Council responded to the complaints but they were not resolved to Mr and Mrs B’s satisfaction so they complained to the Ombudsman.

Analysis

Notification of the reserved matters application

7. Mr and Mrs B did not receive notification of the reserved matters application. The Council’s records show that a notification was sent in January and March 2017. There is no requirement for such a notification to be sent recorded delivery or for the Council to chase up when no response is received. Mr and Mrs B consider that as they had objected to the outline application the Council should have notified them by email or by recorded delivery. There is no requirement on the Council to do that. The Council’s records show a notification was sent so I cannot say there was any fault by the Council.

Consideration of the impact of the development on Mr and Mrs B’s house

8. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise.
9. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. It constitutes guidance in drawing up plans, and is a material consideration in determining applications.
10. Where the development plan is silent or the relevant policies are out of date, planning applications must be determined in accordance with a ‘presumption in favour of sustainable development’ unless any adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the National Planning Policy Framework, or the Framework indicates development should be restricted.
11. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
12. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
13. Government statements of planning policy are material considerations.
14. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities).
15. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
16. In the report on the application the Council referred to the relationship between the houses on the development and surrounding properties. It said that most of the gardens had a depth of at least 10m and there was at least 20m back to back separation. In respect of Mr and Mrs B’s property it said the gardens of the development properties adjoining the gardens of Mr and Mrs B’s house were a sufficient distance away so as not to cause significant impact in terms of overlooking or overshadowing.
17. There is no evidence of fault in the Council’s consideration of the impact of the development on Mr and Mrs B’s home. Officers considered the relationship between the new properties and Mr and Mrs B’s house. They considered the distances and orientation of the properties was acceptable in planning terms. Mr and Mrs B say that there is no part of their garden that is not now overlooked from the new houses. I recognise the change the development has made for Mr and Mrs B but that does not call into question the Council’s consideration of the planning merits of the scheme.

Response to complaints during the construction works

18. Mr and Mrs B first complained to the Council in May 2018. The Council sent noise log sheets to be completed and details of how it investigates complaints of statutory nuisance. The Council did not receive any log sheets back. Mrs B complained again at the end of June about works outside the permitted hours. An officer visited later the same day but did not witness any working outside of the permitted hours. The Council had no further contact from Mr and Mrs B so closed the file at the end of August.
19. In February 2019 Mrs B complained about noise from radios from contractors working on the site. The Council again sent log sheets and contacted the developer by phone. Following further email complaints from Mrs B an officer visited the site but did not witness any noise from radios.
20. Mrs B complained again in mid-March. The Council asked her to provide log sheets which she did at the beginning of April. The Council arranged to visit but Mrs B cancelled the planned meeting as there was no noise at the agreed time. There was then further noise so Mrs B asked if the officers could still come but they were by then booked elsewhere. The Council asked Mrs B for another date but the Council have no record of a response until later in April when Mrs B reported working on a bank holiday. The Council sent a warning letter to the builder.
21. At the end of May the Council installed noise monitoring equipment at Mr and Mrs B’s property. This malfunctioned so it was installed again. The Council analysed the recordings but did not consider the noise recorded demonstrated there was a statutory nuisance. It said it could install it again.
22. Over the last two weeks of July officers visited the site six times. They did not witness a statutory nuisance but on one visit they did consider a radio to be at an unacceptable volume. They raised it with the site manager who agreed to address it. At the end of August Mrs B contacted the Council about further radio noise. She had already spoken to the contractor and did not want any further intervention from the Council. The Council closed its case file in September.
23. I recognise how disruptive the buildings works must have been for Mr and Mrs B. This was a substantial development with a number of houses near to the boundary of their property. The Council’s role in this was to assess whether there was a statutory nuisance. For a noise to count as a 'statutory nuisance' it must do one of the following:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises;
• injure health or be likely to injure health.
24. Generally, the statutory nuisance will need to be witnessed by an environmental health officer and they will come to a judgement. The level of noise, its length, timing and location may be taken into consideration in deciding whether a nuisance has occurred.
25. The Council responded to the complaints made by Mr and Mrs B. They visited the site and contacted the builder. It installed noise monitoring equipment. The Council did not consider it had evidence of a noise nuisance. There was not fault in the Council’s actions – its response was appropriate to the complaints made.

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Final decision

26. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman