Luton Borough Council (20 002 080)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 15 Feb 2021

The Ombudsman's final decision:

Summary: Mr X complains the Council did not properly deal with a planning application near his home and has not investigated concerns about noise and dust. The Council is at fault because it did not follow its complaints policy. Mr X cannot be clear how the Council is responding to his complaints. The Council has agreed to write to Mr X to clarify how it will respond to him and issue guidance to staff to ensure it follows its complaints policy.

The complaint

  1. The complainant, who I shall refer to as Mr X, complains the Council has not dealt properly with a planning application for a development near his house because:
    1. It lied to the committee to get the application approved because it deferred the decision at the development control committee on 26 Feb 2020 in order to hold a meeting between all parties, which then never took place;
    2. Residents were invited to an online meeting in May but the invitation arrived the day after the meeting, so he was not informed of the planning meeting until the day after it happened;
    3. It did not consider the application properly because it did not take into account
      1. the impact of noise from the applicant properly because it said that it monitored the site since 2012 and did not experience excessive noise or dust, which contradicts statements in previous planning application decisions;
      2. previous recommendations made by the Planning Inspector;
      3. the Paris Agreement on climate change;
    4. It has not handed his complaint properly because it has not responded to his letter of 1 June 2020.
  2. Mr X says he has suffered significant noise nuisance and dust pollution which has caused him distress.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  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 spoke to Mr X and considered the details of his complaint as well as the Council’s response. I reviewed documents sent by the Council and Mr X. I have reviewed planning documents available to the public.
  2. Mr X and the Council had an opportunity to comment on a draft of this decision. Their comments were considered before the final decision was reached.
  3. I have exercised discretion to investigate Mr X’s complaint because the Council has not considered it and I have found fault by the Council.

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What I found

  1. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • Access to the highway;
    • Protection of ecological and heritage assets; and
    • The impact on neighbouring amenity.
  3. Councils need to provide evidence to show they have considered the material planning considerations. This evidence is normally found in the case officer’s report and the planning decision notice.

Planning Inspectorate

  1. The Planning Inspectorate acts on behalf of the responsible Government minister and as such is not a body the Ombudsman can investigate. The Planning Inspector considers appeals about:
    • delay 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.
  2. Councils should consider any recent history of appeals to the Planning Inspectorate as it suggests what the Planning Inspectorate considers allowable on the site in planning terms. The Planning Inspectorate’s previous decisions are therefore a material consideration.

Right to speak

  1. The Council adopted an emergency right to speak policy which established a set of temporary ‘Rules’, for each Meeting of the Development Control Committee between 23 April 2020 and 31 July 2020.

Noise and dust complaints

  1. The Environmental Protection Act 1990, Section 79(1) states “…it shall be the duty of every local authority to …, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.”

The Council’s complaints policy

  1. The Council has a two-stage complaints process.
    • At stage one, investigation, the Council aims to provide a response within 15 working days.
    • At stage two, review, the Council will review the stage one response and respond within 25 working days.
  2. Before May 2020, the Council had a separate policy regarding the management of unreasonable complainant behaviour. This set out a process which included sending a letter to a complainant about their behaviour, and subsequently, sending a second letter to a complainant saying what action the Council was taking, how long it would last for, setting out a review date and the right of appeal against the decision.
  3. The Council’s policy dated May 2020 includes an appendix dealing with unreasonable behaviour by complainants, which incudes making excessive demands on the time and resources of staff with lengthy phone calls, emails to numerous council staff, or detailed letters every few days, and expecting immediate responses. The Council may take actions which may be considered to restrict access and contact including:
    • refusing to register and process further complaints about the same matter
    • advising the complainant that a designated member of staff will read all future correspondence and place it on file but not acknowledged, unless it contains relevant new information.
  4. The new policy also requires the Council to write to a complainant saying what action the Council is taking, how long it will last for, setting out a review date and the right of appeal against the decision.

What happened

The planning application

  1. The planning application was for retrospective revised planning permission in relation to continued use for the manufacture of building and construction parts in concrete, at a location near Mr X’s home.
  2. The planning application was first considered by the Council in February. A decision about the application was deferred until May due to uncertainty about the origins of noise and dust concerns.
  3. The application was considered again in May. A planning officer assessed the application and prepared a report for the development control committee. The report sets out the issues raised by objectors and identifies the main planning considerations as principle of the development, impact on character and appearance of the area, residential amenity and matters raised in third party representations.
  4. The Council considered a further report from its environmental protection department about noise and dust. The Council granted planning permission.

Mr X’s Complaint

  1. Mr X complained to the Council and asked 23 questions about:
    • The deferral of the meeting in February;
    • The consideration of noise and dust nuisance problems as part of the planning application;
    • Control over noise and dust nuisance problems; and
    • Breaches of planning conditions concerning hours of operation.
  2. The Council says it has previously addressed the issues in Mr X’s complaint and therefore would not deal with his complaint through its complaints process. Mr X complained to the Ombudsman.

Analysis

  1. The Ombudsman only looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.

Deferred decision

  1. The minutes of the development control meeting in February show it was deferred to consideration of a future committee meeting. There is no record in the minutes that a meeting would be arranged. I am unable to investigate what was said at the meeting because there are no transcripts or recordings of the proceedings. This is not fault by the Council.

Online meeting invite

  1. The Council agrees the letter sent to Mr X was not received by him in time for him to meet the timescales for the May development control committee meeting as set out in the Council’s emergency right to speak policy. The Council says it is under no obligation to advise interested parties by letter. However, it decided to send Mr X a letter and agrees it was sent late. This is fault by the Council.
  2. However, Mr X did not suffer any injustice, because:
    • the right to speak policy sets out, “If, after an application which is subject to the Right to Speak has been considered by the Committee, it is deferred for further consideration, no further opportunity will be provided to any Interested Parties to address the Committee at that following Meeting.” Mr X had previously addressed the committee regarding the application and any request to address the committee a second time would have likely been refused.
    • representations should be by a written statement of 500 words maximum and he had already submitted a lengthy written comment about the application.

Planning application

  1. The case report clearly shows the Council considered:
    • the case history of previous applications for different proposals and the reasons for refusal;
    • the impact on amenity. Comments by Mr X and a petition were considered. The Council also considered an Environmental Protection department report stating there was no objection to the development proposals;
    • the previous planning inspectorate decisions. These decisions were considered in the case report but those applications related to different proposals; and
    • the impact of climate change.
  2. Mr X had submitted a lengthy written comment about the application alongside pictures and videos to support his objection. Mr X sent further emails to the Council in February and April containing representations from Mr X along with photographs and videos. Some of this evidence was made available on the Council’s planning website. The case report makes reference to Mr X’s submitted material, which shows the Council considered his further representations. This is not fault by the Council.
  3. It is clear that Mr X does not agree with the Council’s decision, in regard to impact on amenity. I am not able to consider the merits of the Council’s decision simply because Mr X does not agree with them.

Complaint handling

  1. Mr X says he has not received a response to his complaint in his June 2020 letter to the Council. Mr X asked a series of questions relating to the planning application, breaches of planning restrictions and also environmental enforcement. The Council agrees it has not answered his June 2020 letter. It has written to Mr X saying it would respond to his queries as part of the Ombudsman’s investigation and did not intend to respond directly back to him outside of this process.
  2. I have seen numerous reports from Mr X about working times and noise and dust nuisance between April and the present date. Emails from the Council show that it had stopped responding to Mr X’s correspondence from May 2020, due to the email from the Chief Executive. Mr X also emailed the Council in late June making an official complaint about breaches of planning conditions.
  3. I have seen a letter to Mr X from the Council in February 2018 warning it may consider whether to treat him a persistent complainer and restrict his access to the Council. The Council’s Chief Executive also sent an email in October 2019 saying the Council had, “a policy of no further engagement.”
  4. The Council has investigated Mr X’s concerns because emails and monitoring records from May to November 2020 show it looked into Mr X’s concerns about planning breaches and noise nuisance. Evidence from the Council’s monitoring records do not support Mr X’s reports where they cover the same dates and times.
  5. The Council says it has investigated noise complaints extensively over a number of years. It states, “At no point has any evidence of significant noise, let alone a statutory nuisance, ever been found.” The Council do not consider there has been any change in circumstances at this time to justify further action. I am not able to consider the merits of the Council’s decision simply because Mr X does not agree with them.
  6. The Council has provided Mr X with a phone application to record and submit evidence about noise and dust complaints and says, “Should this reveal a problem, we will investigate further, however, intend to undertake no further investigations unless there is some credible evidence that there has been a change which now suggests that any noise is a statutory nuisance.”
  7. Mr X can submit any further information to the Council using the application provided.
  8. The Council has not acted in accordance with its ‘unreasonable behaviour by complainants’ policy because the email sent in October 2019:
    • was to a generic community email address, not Mr X individually;
    • did not include details of how long its action would last for, set out a review date or a right of appeal against the decision.

This is fault by the Council. Mr X is not clear how the Council is responding to his complaints.

Agreed action

  1. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
    • Consider Mr X’s situation and write to him making clear what, if any, restrictions are being placed on his access and contact with the Council, in accordance with its complaints policy.
    • Provide guidance to staff to ensure its complaints policy is followed when dealing with unreasonable behaviour by complainants.

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Final decision

  1. I have found fault which caused Mr X injustice. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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