Summary: Ms X complained about the way the Council decided a planning application for a development next door to her home. She complained that the Council allowed the developer to instal larger windows than previously agreed, did not impose restrictions on working hours, and prevented her from objecting to the latest planning application. Ms X also complained that the Council delayed sending its final complaint response. She says this caused anxiety, distress, and had an impact on her health. Largely we do not find the Council at fault. However, we find the Council at fault for delays sending its final complaint response. This caused Ms X injustice. The Council has agreed to make a payment to remedy this injustice. We are satisfied the Council has already apologised for the delay.

The complaint

1. The complainant, who I refer to as Ms X, complains about the way the Council decided a planning application for a development next door to her home. Specifically, she complains that the Council:
1. allowed the developer to instal larger windows when previous grants of planning permission said windows could not be enlarged;
2. failed to impose a planning condition to restrict working hours at the site;
3. told the developer that the latest planning application had been accepted, which prevented her from objecting; and,
4. delayed sending its final complaint response.
2. Ms X says this caused anxiety, distress, and had an impact on her health. She feels she did not have a voice in what was affecting her. She has disabilities, and says she had to be in one room most days of the week to hide from the noise from building works.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
7. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Planning

8. Article 15 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 deals with publicity for applications for planning permission. It says applications must be publicised in two ways: 1) with either a site notice or by serving notice to any adjoining owner or occupier; and 2) in a local newspaper.
9. The law says councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate otherwise. Material considerations include issues such as overlooking, traffic generation and noise.
10. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
11. A council must be able to show it has considered the material planning considerations that are engaged by the planning process. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
12. Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission.
13. The Ombudsman will consider whether the decision-makers had enough information in front of them to make an informed decision.
14. When a local authority gives planning consent, it often attaches conditions to it. In law, councils are able to impose planning conditions as they see fit. The Government’s National Planning Policy Framework says that planning conditions should be kept to a minimum, and only used where conditions are necessary, relevant to planning and to the development to be permitted, enforceable, precise, and “reasonable in all other respects”.

Noise complaints

15. Under the law, councils are required to investigate complaints of noise nuisance. A council will gather evidence to establish whether or not the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it will serve a noise abatement notice requiring the nuisance to be stopped.
16. To be a statutory nuisance, the law says the noise must be unreasonable and must substantially interfere with the use or enjoyment of a home, or must injure, or be likely to injure, health. There is no fixed point at which noise becomes a statutory nuisance. Councils will rely on professional environmental health officers to gather and assess evidence of noise and decide if a statutory nuisance exists. To do this, officers may, for example, ask the person complaining of nuisance to complete and return diary sheets detailing the noise. Officers may also set up recording equipment in the complainant’s home.
17. Councils must also consider how the noise affects the average person, who may not share the specific circumstances of the complainant. In practice, this means councils have some discretion deciding whether noise is a statutory nuisance. The primary aim of any action is to modify the behaviour of the perpetrator. However, a council cannot take action against the perpetrators of noise without robust evidence.

Complaints procedure

18. The Council’s complaints procedure says it aims to provide a final complaint response at step two within 20 working days. It says, “in exceptional circumstances where this may not be possible, we will agree a new timescale” with the complainant.

What happened

19. Ms X and her partner live next door to a site where a house is being developed. The Council granted planning permission for the development in 2018. The case officer, in their report, gave detailed consideration of Ms X’s disabilities and the impact of the development on her. One of the planning conditions attached to the planning permission said none of the windows or external doors would be enlarged.
20. In May 2020, Ms X’s partner complained about noise from the site early in the morning and at weekends. The Council wrote to the site owners to remind them of guidance hours for construction work. The Council gave Ms X and her partner diary sheets to fill out.
21. In July, the Council approved a further planning application which sought approval to vary some of the previously agreed planning conditions. This included allowing the developers to instal larger windows/doors. In approving this application, the Council considered Ms X and discussed the application with her partner.
22. In September, the Council again wrote to the landowners about the noise complaint and working hours at the site. The Council installed noise monitoring equipment at Ms X’s home. The Council did not find a statutory noise nuisance.
23. Ms X complained to the Council in September.
24. In its complaint response in October, the Council said it had formally consulted with neighbours, giving 21 days for comments on the amendment application. The Council acknowledged that previous planning permission said none of the doors or windows could be enlarged. It said, however, that the developers made an application to amend this.
25. The Council said the law allows amendments to planning permission after the original planning permission is granted. It said the case officer concluded that the amendments were acceptable, and were not considered to introduce significant additional overlooking to Ms X. The Council said the officer made this assessment with the knowledge of the previous case officer’s assessment, including consideration of Ms X’s needs.
26. The Council said it was not usual to impose planning conditions about construction hours for a small development like this.
27. Ms X asked the Council to escalate her complaint to the next stage of the complaints procedure. The next day, the Council acknowledged Ms X’s request and said it would respond within 20 working days.
28. In March 2021, Ms X contacted the Council saying she had not received its final stage complaint response.
29. The Council sent its final stage complaint response in April. It said it had considered the impact of the development on Ms X and her needs. It said it could add planning conditions to restrict the hours of work on a site but only where it is deemed reasonable. The Council said it was currently doing a noise investigation to see if there was a statutory noise nuisance.
30. Ms X then complained to the Ombudsman.

Analysis

Allowed larger windows

31. Ms X complains that the Council allowed the developer to instal larger windows when previous grants of planning permission said windows could not be enlarged (part a of the complaint).
32. Ms X says she was reassured by the earlier grants of planning permission which said window and door sizes could not be enlarged. She believes the Council ignored the clause and later granted planning permission that directly contradicted what it said before.
33. A person applying for planning permission is allowed to submit an application to amend the permission already granted. This is what happened in this case. The Council assessed the application to amend the planning permission, including the impact on Ms X. The case officer concluded the proposed changes to window/door sizes were acceptable and did not introduce significant additional overlooking.
34. There is no fault in the way the Council determined the application to amend the planning permission and allow larger windows. I find the Council took into consideration all the information it should have. I do not agree that the Council ignored previous clauses about door/window sizes. The Council can only react to planning applications it receives. The Council was entitled to approve the application for larger windows.
35. For this reason, I do not find the Council at fault here.

No condition to restrict working hours

36. Ms X complains that the Council failed to impose a planning condition to restrict working hours at the site (part b of the complaint). She says the developer often started work very early in the morning and finished late, and often worked weekends and bank holidays.
37. Ms X says she complained to the Health and Safety Executive (HSE) who served a notice on the developer. She feels the Council could have better protected her.
38. The law says planning conditions should be kept to a minimum and should only be used in certain circumstances (see paragraph 14). In this case, the development is on a relatively small residential site. There would be no reason for the Council to impose a restrictive condition about working hours for a development such as this.
39. I do not find the Council at fault for not imposing conditions restricting the hours of construction at the site.
40. I have also considered the Council’s investigation into Ms X’s complaint about noise from the site outside usual working hours, to see if the Council could have done more for Ms X.
41. I find that the Council conducted its noise investigation as it should have. It asked Ms X to complete diary sheets. It then installed noise monitoring equipment to see if there was a statutory nuisance. The Council determined there was no statutory nuisance so it could not take any enforcement action against the developer. This is a decision the Council is entitled to make.
42. I find no fault in the way the Council investigated Ms X’s noise complaint.
43. It is unfortunate that the developer did not adhere to construction hours’ guidance. However, Ms X complained to the HSE who took action. The Council does not have the same powers as the HSE.
44. For these reasons, I do not find the Council at fault.

Prevented Ms X from objecting

45. Ms X complains that the Council told the developer that the latest planning application had been accepted, which prevented her from objecting (part c of the complaint).
46. Ms X says she spoke to the developer about the application for amendments (window/door sizes) two weeks before the closing date for comments. She says the developer told her the application was already closed. She says she was naïve to believe the developer.
47. I cannot say what the Council told the developer about the application. In any event, whatever the developer told Ms X is not evidence of fault with the Council.
48. Ms X complains that she went onto the Council’s planning portal within the 21-day consultation period and could not access the part of the portal to make comments or object.
49. The Council sent Ms X a letter notifying her of the application for amendments. It said Ms X could make comments in writing (giving a postal address) or via the portal. The Council says if Ms X had said she was having problems submitting comments, it would have given her an email address to send her comments to. The Council says there were no known problems with the portal at that time.
50. I find there were two ways for Ms X to comment on the application. She chose not to make comments in writing. Also, there is no evidence that Ms X told the Council within the 21-day consultation period that she had problems accessing the portal. I do not agree that the Council prevented Ms X from objecting.
51. For these reasons, I do not find the Council at fault.

Delay sending final complaint response

52. Ms X complains that the Council delayed sending its final complaint response (part d of the complaint).
53. In October, Ms X asked the Council to escalate her complaint to the final stage of its complaints procedure. The next day, the Council acknowledged this and said it would respond to her complaint within 20 working days.
54. The Council should have sent its final stage complaint response by early November. It did not send the response until April, after Ms X chased the Council for its response in March.
55. The Council says Ms X’s main outstanding issue, when she asked for the next stage, was the noise complaint. The Council says its environmental protection team told its complaints team that it was investigating to see if there was a statutory nuisance or not.
56. The Council is entitled to wait until the outcome of a relevant investigation before sending a final stage complaint response. However, the Ombudsman would expect a council to tell the complainant the reason for a delay in its response. There is no evidence the Council did this.
57. The Council’s complaints procedure says it aims to provide a final complaint response within 20 working days. It says, “in exceptional circumstances where this may not be possible, we will agree a new timescale” with the complainant. There is no evidence the Council did this.
58. Ms X had to chase the Council months later for a response. The Council sent its final stage complaint response five months late with no communication in the interim to explain its delay or give a new timescale for the response. This is fault.
59. This fault caused Ms X injustice because of the time she had to wait for a response and the trouble she went to in chasing the Council.
60. I am satisfied that the Council has already apologised to Ms X for this delay.

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Agreed action

61. Within four weeks of this decision, the Council has agreed to make a payment to Ms X of £150 to reflect the time and trouble she went to in chasing the Council for its final complaint response.
62. In arriving at this amount, I have considered the Ombudsman’s published guidance on remedies. I have taken into consideration the length of time involved and the Council’s lack of communication.
63. The Ombudsman will need to see evidence that this action has been completed.

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Final decision

64. I have completed my investigation. Largely I do not find the Council at fault. However, I find the Council at fault for delay sending its final stage complaint response. This caused Ms X injustice. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman