Summary: Mr X complained about the Council’s decision to approve development near his home that he is concerned will cause noise disturbance. There was no fault in the way the Council made its planning decision, but there was some fault in the way the Council kept its records. The Council agreed to apologise to Mr X and investigate how the fault happened.

The complaint

1. Mr X complained the Council failed to take account of the requirements of the most recent British Standard, before making its decision to approve a planning application for new development near his home. Mr X is concerned that he will be affected by noise from the new development.
2. Mr X also complained that a technical report about ground conditions was unreadable and the Council failed to provide him with a readable copy of the report.

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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. 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

5. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report. I discussed the complaint with an Environmental Health Officer (EHO).
6. Mr X and the Council had an opportunity to comment on an earlier draft of this decision. I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Council planning authorities may seek advice from other bodies and professionals.

Environmental Protection role and powers – noise control

11. Council environmental health officers (EHOs) may advise planning authorities about the impact proposed developments will have on the public. EHOs also have a statutory power to control noise nuisance. Once a council is satisfied a nuisance exists, it is under a duty to act.
12. EHOs serve ‘abatement notices’ on those that cause noise nuisance. This is a nuisance that is prejudicial to health or unreasonable for other reasons, such as causing sleep disturbance. The notice should state what the nuisance is and what steps are necessary to decrease or ‘abate’ it. If the action required does not happen within the time limit set out in the notice and no reasonable defence is provided, the Council can enforce the notice in the magistrates’ court.
13. The Environment Agency (EA) also has statutory power to control noise through environmental permits. Permits are required to control pollution, including noise pollution, for certain commercial and industrial processes. EA permits usually include conditions that control the day to day management of sites, and they may be used to control noise and vibrations from industrial processes.
14. Site operators and enforcement bodies must consider industrial noise against rating and assessment methods set out in British Standard guidance. These include methods appropriate for assessing low frequency sound audible in residential properties.

Publishing information

15. Decisions made by officers using delegated powers are controlled by the Openness of Local Government Bodies Regulations 2014. The 2014 regulations require that certain decisions and their background papers are publicised on council websites, as soon as is practicable after the decision is made.
16. The 2014 regulations apply to a decision that has been delegated to an officer, if it:
• grants a permission or licence;
• affects the rights of an individual; or
• awards a contract or incurs an expense that materially affects the council’s financial position.
17. The 2014 regulations require that any such decision should be made available to the public:
• at the council offices;
• on the council’s website, if it has one; and
• by any other means the council considers appropriate.
18. The written records should include the following information:
• the date the decision was made;
• the record of the decision, its reasons and the background papers relied on;
• details alternative options, if any considered and rejected; and
• a record of any relevant conflict of interest.
19. The Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 applies to council meetings, which should be held in public unless certain exceptions apply.
20. The 2012 regulations require the publication of:
• The matter that will be considered/decided;
• Meeting details, including dates, time and venue;
• Details of the decision maker, or committee; and
• Details of relevant documents that will be considered.
21. After the meeting has happened, the outcome of the meeting should be published, along with background documents relating to the decision at the Council’s office and on the Council’s website, if it has one. The decision should include sufficient details so the public can understand what decision was made and the reasons for the decision. Without adequate details, albeit briefly stated, an individual who might wish to challenge the decision cannot know whether it was lawfully made.
22. Documents covered by the regulations should be published as soon as is reasonably practical after the decision was made.

What happened

23. The Council received a planning application for development on land about 100 metres from Mr X’s home. The proposed development included equipment that generated noise.
24. The developer’s application included reports from a noise consultant and another from a ground condition consultant. The Council’s planners asked an EHO and a Contaminated Land Officer (CLO) for their comments on the application.
25. The EHO considered the application and had no objections to it.
26. The CLO considered the application and had no objections, providing it was subject to a condition controlling ground works.
27. The planning case officer wrote a report which included:
• a description of the proposal and site;
• comments from neighbours and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity caused by noise and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions. One of the conditions was to control hours of operations, another to control groundworks to avoid instability and contamination.
28. The Council’s planning committee approved the application subject to recommended conditions.
29. Mr X was unhappy with the noise report as he believed it failed to take account of the impact that might be caused by tonal noise. Mr X said that the Council’s EHO seemed to be unaware of recent changes to British Standards on noise assessments, when they advised the Council’s planners.
30. Mr X also complained he could not read the ground condition report provided by the applicant’s consultant and the Council did not respond to his request to provide him with a legible copy.
31. I spoke to an EHO who said the recent amendments to the British Standard on noise assessments was updated to clarify some issues and correct others, but the main body of the standard remained the same. The original standard had always included consideration of tonal noise.
32. The EHO explained that their role was to consider applications and advise the planning authority if they had any major concerns or whether they needed more information. The EHO said, while not perfect, this noise assessment report had enough information to support their view that there were no concerns. The EHO said that if a problem was to occur, they could use their environmental protection powers to control noise pollution.
33. The Council accepted that the land condition report was illegible in places. The Council explained that this was caused by a software issue, so parts of the report were corrupted when the document was uploaded to its website. The Council sent me a screen shot of the original document to show it was legible when it was considered.

My findings

34. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision-making process, and if we find it, we decide whether it caused an injustice to the complainant.
35. Before it made its planning decision the Council considered the application plans, consulted the public and other consultees, including an EHO and CLO, and took account of their comments along with relevant policy and guidance. This is the process we expect and so I find no evidence of fault in the way the Council made its decision.
36. Mr X also complained about a document on the Council’s website which was in part illegible. The Council’s website included an illegible document and this was fault.
37. When we find fault, we must decide whether it caused a significant injustice we should remedy.
38. The Council’s excerpt and the summary in the planning case officer’s report show the report the Council considered was legible, so I cannot say the outcome of its planning decision was affected.
39. Mr X wanted to read the report and asked the Council to provide him with a legible copy, but it did not do this. Mr X should have been able to read the report on the Council’s website, and the Council should have corrected its records when Mr X brought the problem to its attention. Its failure to do so caused frustration and inconvenience, and this is an injustice the Council should remedy.

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Agreed action

40. I found evidence of fault in that the Council’s website included a document which was partly illegible. This fault caused an injustice that the Council has agreed to remedy.
41. To remedy the injustice caused, the Council will:
• apologise to Mr X for the inconvenience and frustration caused by the fault and its failure to rectify the fault when it was brought to its attention;
• correct its records by uploading a legible copy of the ground condition report to its website.
42. It will carry out these actions within one month from the date of our final decision.
43. The Council will also investigate how the fault occurred and put in place measures to stop it recurring. It will do this within 2 months from the date of our final decision.
44. The Council will inform the Ombudsman when it has carried out the agreed actions.

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Final decision

45. There was some fault in the way the Council kept records relating to its planning decision. I completed my investigation because the Council accepted my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman