Summary: Mr X complains about how the Council handled his neighbour’s retrospective planning application for two air conditioning units’ installation. The Council was at fault for failing to carry out a night-time noise assessment. As a result, it failed to consider the impact the air conditioning units’ installation would have on Mr X’s amenity. This caused Mr X distress, inconvenience and time and trouble. Council has agreed to remedy the injustice caused.

The complaint

1. Mr X complains about how the Council handled his neighbour’s retrospective planning application for two air conditioning units’ installation.
2. Mr X alleges the Council failed to follow its planning policies and processes. In particular he complains the Council:

• failed to properly carry out a noise assessment of the air conditioning units, including night-time noise assessment
• failed to properly consider the impact the air conditioning units’ installation would have on his amenity
• wrongly extended the statutory determination date on two occasions.

3. Mr X says the Council’s failings have caused him significant distress, deprivation of sleep and the time and trouble chasing updates of his complaint with the Council.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I discussed the complaint with Mr X and considered the information he provided. I also considered the information the Council provided in response to my enquiries.
8. I sent Mr X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Planning Law and administration

9. All decisions on planning applications must be made in accordance with a council’s development plan unless material considerations indicate otherwise.
10. Material considerations include government policy, supplementary guidance, impact on neighbouring amenity, views of consultees and issues specific to the application. It is for the decision maker to decide the weight to be given to any material consideration in deciding a planning application.
11. Government guidance provides that a local planning authority can invite a retrospective planning application. In circumstances where the local planning authority consider that an application is the appropriate way forward to regularise the situation, the owner or occupier of the land should be invited to submit their application.
12. The case officer’s report should identify the key deciding issues, have accurate descriptions and summarise responses from consultees and notifications. The case officer should recommend a decision that follows from a reasoned analysis of the relevant issues.
13. Once a planning application has been validated, the council should make a decision within the statutory time limit unless a longer period is agreed in writing with the applicant. The statutory time limits are usually 13 weeks for applications for major development and 8 weeks for all other types of development. Where a planning application takes longer than the statutory period to decide, and an extended period has not been agreed with the applicant, the Government’s “planning guarantee” is that the decision should be made within 26 weeks.
14. Councils should consider potential noise nuisance when making planning decisions (which may require a noise impact assessment). We need to consider whether a council has given sufficient consideration to powers under other legislation and whether it has considered using informal as well as formal powers.

Statutory nuisance

15. Under the Environmental Protection Act 1990, councils have a duty to investigate noises which may cause a statutory nuisance to residents within its area. For a noise to count as a ‘statutory nuisance’ it must do one of the following:

• unreasonably and substantially interfere with the use of enjoyment of a home or other premises; or
• injure health or be likely to injure health.

16. Any statutory nuisance must be witnessed by an Environmental Health Officer and, in the officer’s independent judgement, seriously interfere with the person’s ability to live normally. The officer will come to an independent judgement taking into account the type of nuisance, its duration, intensity and location to decide whether a statutory nuisance exists.
17. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This may require whoever is responsible to stop the activity or limit it to certain times to avoid causing a nuisance and can include specific actions to reduce the problem.
18. Councils can decide to take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance.

What happened

19. This chronology includes key events in this case and does not cover everything that happened.
20. In August 2020, Mr X’s neighbour installed two air conditioning units (ACUs) to the side elevation of a building.
21. On 24 August 2020, Mr X raised his concerns with the Council. He said his neighbour installed the ACUs without getting planning permission.
22. In October 2020, the Council informed Mr X’s neighbour the ACUs’ installation needed planning permission. It invited the applicant to submit a retrospective planning application by 6 December 2020.
23. In November 2020, Mr X’s neighbour submitted a retrospective planning application. The Council validated the application for the ACUs’ installation and it set the 8-week statutory determination date for 15 January 2021.
24. The Council consulted the parish council, Environmental Health (EH) department, Mr X and some of the applicant’s neighbours about the ACUs’ retrospective application. The Council received objections from EH and Mr X.
25. EH said the application did not include any information about background noise levels in the applicant’s residential area. This was required to assess the impact of the ACUs on the amenity of neighbouring properties. Mr X’s objections included night‑time noise from the ACUs and the impact on his amenity.
26. Mr X’s neighbour employed the services of an independent noise assessment specialist. In January 2021, the specialist visited the site to inspect the ACUs’ installation, assess any background noise and the noise impact on the adjacent residential property.
27. On 15 January 2021, Mr X’s neighbour submitted the noise assessment report to the Council. The noise impact report found the ACUs’ installation “should not create any significant noise impact to adjacent residential properties during the limited hours of their intended daytime operation, based upon site measured noise levels and the published noise ratings of the plant installed.”
28. On 16 January 2021, Mr X asked the Council if it had made its decision on the application. He said this was because the statutory determination deadline was 15 January 2021 and he was not aware if the determination date had been extended. The Council explained when it received the external noise assessment report from the applicant, both parties agreed for the determination date to be extended to 15 February 2021. This was to give consultees an opportunity to make comments on the report and for the Council to make a decision about the application. The Council made consultation on the additional information it received from the applicant with Historic England and it re-consulted with applicant’s neighbours, including Mr X.
29. Mr X questioned the applicant’s late submission of the noise assessment report to the Council and the fairness of the report submitted by a specialist whose services were engaged by the applicant. Mr X also made comments on the noise assessment report. He clarified the closest habitable room was 2 meters from the external units and not 7 meters as stated in the noise report. Mr X said it was important to notify the consultees of this error before any decision was made. He asked the Council to consider all the concerns he raised and make its decision in line with its published policies.
30. In February 2021, Mr X asked why the Council had postponed the statutory determination date again to 23 February 2021. Mr X said he had been living with the disturbance caused by the ACUs for the last six months. The Council explained it had to further extend the determination date because it had to re‑consult with EH. It said EH’s comments were required before the Council could make its decision on the application.
31. On 3 March 2021, Mr X made a formal complaint to the Council. He complained about the Council's delays and its extensions of the statutory determination dates. Mr X also complained about the Council’s lack of transparency in the way it dealt with the retrospective application and his concerns about the ACUs. He asked the Council to provide him with details of the written agreement for any further extension of the statutory determination date. Mr X also asked why the Council failed to put this information on its website.
32. The Council realised it made an error when it consulted with Historic England in January 2021 instead of re-consulting with EH. On 10 March 2021, the Council contacted EH with the applicant’s noise assessment report and requested its comments.
33. The Council issued its stage 1 response to Mr X’s complaint. The Council explained it had to await EH’s comments to the noise report. This led to the statutory determination dates being extended and for its delay in making a decision on the application. It apologised to Mr X for the delay but maintained it considered it was important the report submitted by the applicant was properly assessed before the Council made its decision.
34. EH submitted its comments on the noise report to the Council. It stated ‘‘EH did not suggest that the units were the source of unacceptable levels of noise but that with no assessment made of noise levels in the area, no one could be confident that the operation of these units would not cause harm to the amenity of the area through noise… Now that the background assessment has been made, this consideration can be made.’’ EH also considered the point raised by Mr X, that the closest habitable room was 2 meters from the external units and not 7 meters as stated in the noise report. It stated the difference in distance was not sufficient to cause harm to the amenity of the area, so it withdrew its initial objection. But EH noted the report only provided for background noise levels during the day and did not include night‑time background noise assessment. EH suggested it may request further action to be taken by the Council on this point.
35. On 29 March 2021, the Council granted planning permission for the ACUs installed by Mr X’s neighbour. The Council considered the ACUs would not cause unacceptable noise disturbance or harm amenity of neighbouring properties.
36. Mr X questioned the Council’s approval of the retrospective application. He said the Council failed to address the noise level within his property and night-time noise from the ACUs. Mr X said the Council failed to consider the impact the ACUs’ installation has had on his amenity which he had raised on several occasions to it.
37. On 30 March 2021, EH provided further comments on the issue of lack of night‑time noise assessment. EH said in the absence of this assessment, it was possible that noise reduction at night could result in the ACUs being louder comparatively. EH suggested if Mr X’s neighbour could limit the use of the ACUs to daytime (7am – 11pm), then a requirement for further night-time noise assessment would not be needed. But if Mr X’s neighbour did not accept the condition, EH would need to consider the likelihood of night-time harm and whether to take further action.
38. In April 2021, Mr X informed the Council he was dissatisfied with its stage 1 response to his complaint. He said the Council failed to address all his concerns and failed to properly assess his neighbour’s retrospective application. Mr X proposed to challenge the Council’s decision to grant retrospective planning permission for the ACUs’ installation by way of Judicial Review (JR).
39. In the Council’s response to Mr X, it accepted it made an error when it consulted Historic England instead of re-consulting EH. It said it also failed to properly consider the night-time noise from the ACUs. In view of this, the Council said it was willing to have the permission quashed and re-determined following the submission of the JR by the applicant.
40. Mr X did not go ahead with the JR due to the Council’s delay in responding to his pre-action protocol for JR and legal costs. He said the Council also failed to answer all the questions he asked which made it difficult to narrow down the issues he needed to raise with the court.
41. Mr X remained dissatisfied with how the Council considered his neighbour’s retrospective application and how it dealt with his concerns about the noise nuisance from the ACUs. Mr X made a complaint to the Ombudsman.

Analysis

42. The Council failed to consider night-time noise assessment before it approved the retrospective application for the ACUs’ installation. As a result, the Council failed to consider the impact the ACUs’ installation would have on Mr X’s amenity during night-time. This was fault. We accept planning officer reports do not have to be perfect or cover every possible planning consideration. They do need to show core issues were considered and the reasons for judgements on planning matters should be shown and briefly stated. In this case, the officer report failed to show the point raised by EH that only background noise levels during daytime was provided for in the report and not night‑time noise assessment. This information was important to properly consider the impact the ACUs would have on the amenity of neighbouring properties. It was unfortunate the proposed condition from EH to restrict the use of the ACUs during night-time was not received until the application had been determined. But the Council should have properly considered and addressed EH’s concerns before approving the application. This caused Mr X distress, inconvenience and time and trouble chasing the Council for updates on this matter.
43. I note the Council in its response to Mr X’s pre-action protocol for JR and in its response to my enquiries accepted it failed to properly consider the night-time noise issue. The Council failed to consider if a condition restricting night-time use of the ACU’s was necessary. This has left Mr X with uncertainty about whether his amenity could and should have been better protected.
44. In relation to the statutory determination date, there was delay by the Council in determining Mr X’s neighbour’s retrospective planning application. The application submitted and validated in November 2020 should have been determined by January 2021, the 8 weeks statutory time limit. Evidence shows the Council initially extended the determination date to 15 February 2021 when it received the noise assessment report from Mr X’s neighbour. This was to give consultees an opportunity to make comments on the additional information submitted by the applicant. This was not fault as the Council agreed the extension in writing with the applicant in line with planning guidance.
45. However, the second extension was caused by the Council’s error when it consulted Historic England in January 2021 instead of re-consulting with EH. When the Council noticed the error, it re-consulted EH in March 2021. The Council’s error was fault. This caused an injustice to Mr X which meant he waited two months longer for the application to be determined.

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Agreed action

46. To remedy the injustice caused by the faults identified, the Council has agreed within one month of the final decision to:

• apologise in writing to Mr X for the distress caused by the Council’s failure to properly consider the impact the air conditioning units’ installation would have on his amenity
• pay Mr X £250 financial remedy in recognition for the distress caused and the time and trouble he was put to pursuing this matter with the Council
• initiate a noise nuisance investigation
• contact Mr X to confirm the Council has opened a noise nuisance investigation and ask him to collate or provide any evidence that the Council might need
• due to the delay Mr X has already experienced, the Council should also consider giving Mr X’s case a reasonable priority. For example, if there is a waiting list for noise monitoring equipment or site visits
• by training or other means remind staff of the importance of considering all material considerations before making a decision on planning applications.

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Final decision

47. I find evidence of fault by the Council leading to injustice. The Council has agreed to take actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman