Summary: We ended our investigation into Mr X’s planning complaint as we could not achieve a worthwhile outcome for him.

The complaint

1. Mr X complained about the Council’s handling of planning applications for development near his home, which included a noise barrier, because it:

• failed to ask for an Environmental Impact Assessment for the development;
• failed to consult him, and other residents about changing the materials for the noise barrier and increasing its height;
• failed to consider the impact of the noise barrier on his home and living conditions;
• failed to provide evidence of noise assessments;
• failed to apply the terms of the Modern Slavery Act 2015 to the supply chain for the development; and
• decided to review what happened but did not include residents in that review.

2. Mr X said what happened caused unnecessary stress and anxiety and the development significantly reduced light to his home and ruined his view, which lowered the value of his home.
3. Mr X wanted the noise barrier moved further from his home, a change to its materials, and its height reduced. Mr X also wanted a review of the behaviour of Council officers that dealt with the development.

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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 provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide, for example:

• there is not enough evidence of fault to justify investigating; or
• we cannot achieve a worthwhile outcome, or
• we are satisfied with the actions a council has taken or proposes to take. (Local Government Act 1974, sections 24A(6) and 24A(7), as amended)

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. I:

• considered Mr X’s written complaint;
• offered to talk to Mr X about the complaint;
• considered planning information about the development available on the Council’s website;
• read the Council’s Planning Committee report about its planning decision and listened to the relevant Committee consideration of that report; and
• gave Mr X and the Council an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

8. About 10 years ago, councillors on the Council’s Planning Committee (‘the Committee’) granted planning permission for major development. The Council also completed a legal agreement with the developer. Under the agreement, the developer had to provide works outside the application site to facilitate the development.
9. Later, the developer applied for, and the Council’s Committee granted, outline planning permission to carry out the offsite works. As an outline planning permission, the developer needed to apply to the Council for approval of details of the works before starting them on site.
10. A few years later, the Council’s Committee gave detailed approval to the offsite works. The details said a proposed noise barrier would be ‘H’ metres high. The approval included conditions. One condition (‘the Condition’) said, before starting the works, the developer had to get the Council’s approval to details of the ‘H’ metres high noise barrier. And, before using the works, the noise barrier had to be in place.
11. About three years ago, the developer applied to discharge the Condition. The application plans showed the proposed materials for the noise barrier. The Council’s planning officers considered the application, including consulting with their environmental health colleagues. A senior Council planning officer approved the details and discharged the Condition.
12. The public were to use the works. The developer completed a legal agreement with another council that set out the conditions under which that council would take responsibility for the works and their future maintenance. The developer then came back to the Council as it wanted to change details of the noise barrier. The developer made another application to the Council seeking approval to use a different material for the noise barrier. The Council’s planning officers again consulted their environmental health colleagues and then approved the new material. The ‘H’ height of the noise barrier did not change.
13. The works started and, later, the noise barrier was erected.
14. Mr X, and other nearby residents, complained to the Council. Mr X’s key concerns were the ‘H’ height of the noise barrier and the materials used in its construction. In responding to the complaints, the Council decided to seek independent advice to:

• review both its procedures and judgement in reaching its planning decisions and identify any issues.
• identify legal options for changing the noise barrier; and
• advise on the implications, including legal and financial, of the options.

15. The Council then considered the independent advice at a meeting of the Committee. The Committee decided to:

• support in principle, and subject to further consideration, reducing the height of the noise barrier;
• consult with affected residents, which would include Mr X;
• continue discussions with the developer and the other council; and
• (later) receive a progress report on the consultations and discussions.

Consideration

16. My role was to consider whether the Council acted with fault in reaching its planning decisions. Without evidence of fault in how the Council processed a planning application, I could not question its resulting decision however strongly Mr X might disagree with that decision (see paragraph 4). I also could not normally consider matters more than 12 months old (see paragraph 6).
17. Here, the evidence showed the major development and offsite works had long been part of the local planning strategy for the place where Mr X lives. And it was erection of the noise barrier, which came near to completion of the offsite works that led to complaints, including from Mr X. However, the ‘H’ height of the noise barrier was established several years ago, although Mr X and others may have believed it was to have a lower height. A complaint about the Council’s planning decision to approve the offsite works, including the ‘H’ height, would be a late complaint (see paragraph 6). I found no good reason to exercise my discretion to now investigate that late complaint.
18. The only planning decision taken by the Council within the 12 months before Mr X’s complaint, concerned changing the materials for the noise barrier (see paragraph 12). That application was also to discharge the Condition. The procedure for discharging a planning condition needs the applicant to make a written application and pay the relevant fee. The application should provide the details or other information needed by the planning condition. Unlike an application for planning permission, the Council does not need to publicise an application to discharge a condition. It simply has eight weeks to consider the details or other information and decide whether it finds them acceptable. If it does, it will write to the applicant approving the details and discharging the condition.
19. Here, the Council, as local planning authority, decided to consult its environmental health team about the change to the noise barrier materials. It had previously sought comments from its environmental health officers as they have knowledge and experience of noise issues. The Council then approved the changes and told the applicant developer of its decision. I therefore considered it unlikely that further investigation would provide evidence of fault in how the Council reached its decision (see paragraphs 4 and 5).
20. However, Mr X might only recently have become aware of the Council’s planning decisions for the offsite works, including the ‘H’ height noise barrier. I therefore considered whether there were good reasons to exercise my general discretion to investigate the complaint. But I still could not consider the merits of the Council’s decisions if they were reached without fault. And the Council was acting in response to Mr X’s and other residents’ concerns about the noise barrier (see paragraphs 14 and 15).
21. Overall, given the circumstances here, I did not find further investigation would achieve any worthwhile outcome for Mr X. I therefore ended my investigation.

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Final decision

22. I ended my investigation.

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Investigator's decision on behalf of the Ombudsman