Summary: Mr X complained about the Council’s decision to approve a planning application for an airport runway extension. Mr X said the development will increase noise in his area. We did not investigate this complaint further, as we are unlikely to find fault, provide the outcome Mr X would like or any other meaningful outcome.

The complaint

1. Mr X complained about the Council’s decision to approve an extension to an airport runway in its area.
2. Mr X does not live within the Council’s area, but in a neighbouring council’s district. Mr X said that a noise protection route scheme should have been included in a section 106 planning agreement. Mr X said this would have required the developer to negotiate routes with his local council, so it might protect him from aircraft noise.
3. Mr X also complained about how he was dealt with under the Council’s complaints procedure.

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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 an organisation’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 must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

6. 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.
7. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. 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.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate planning agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a type of contract that is legally binding on the parties that sign it, and the successors in title to the land it applies to.
13. A party to a section 106 agreement can apply to modify or discharge an obligation within it. An application to modify or discharge a section 106 agreement may only be made after five years after the agreement came into force.

Background

14. Mr X is concerned about the Council’s decision to approve an extension to an airport runway without including a right for a neighbouring council to negotiate noise protection routes for aircraft to protect its residents who live near or under airport flightpaths.
15. Before a decision was made, the Council’s planning case officer wrote a report for the Council’s planning committee. The case officer’s report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from the public and other consultees, including other local authorities in the region;
• one of the comments was a request for a Noise Protection Route for Mr X’s council’s area;
• details of planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on amenity from noise, air quality, climate change, employment and economic factors, access, and parking and highway matters; and
• the officer’s recommendation to approve the application, subject to a section 106 agreement and planning conditions.
16. Specifically, on noise and aircraft routing, the case officer said it was intended to use noise caps and noise contours to control use. It said it did not intend to ‘fetter the ability to improve noise performance of the Airport by operational changes such as different routing or changes in approach or descent’. Its section 106 agreement would require the Airport ‘to monitor and report on noise levels to ensure additional noise did not spread over a wider geographical area’.
17. The Council approved the application subject to planning conditions and the completion of a section 106 agreement.
18. In response to an earlier draft of this decision, Mr X said:
• The Council’s decision was affected by a conflict of interest, as it stood to benefit by approving the application.
• We could provide a meaningful outcome, because we could conclude the Council was wrong not to ensure his local council had a legally binding agreement with the airport relating to noise controls and aircraft routing. Mr X believes his local council has been unlawfully discriminated against.

My findings

19. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
20. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
21. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
22. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
23. I should not investigate this complaint further, for the following reasons:
• Mr X would like the Council to have included a noise protection route for his area. The Council was aware of his concerns but made its own judgement on how best to protect the public from aircraft noise. We are not an appeal body, and so in the absence of fault in the decision making process, we cannot comment on the judgements that have been made.
• Mr X said the Council’s decision was affected by a conflict of interest, as it stood to gain from approvals. The Council was entitled to take account of economic factors before making its decision. As a planning authority, it must weigh the various planning considerations for and against approval, before making its judgement. It has done this here and I cannot say its conclusions were wrong.
• Mr X would like us to conclude that his local council should have been included as party to the section 106 agreement and allowed powers to control noise in its area. The Council took account of Mr X’s local council’s comments before making its decision. It specifically decided not to use planning powers to control aircraft routing and made its own judgements about what measures were necessary to protect the public outside of its area. Without evidence of some fault in the decision making process but for which its decision would have been significantly different, we would not comment on the judgements it has made.
• Before it made its decision, the Council considered the application plans, comments from consultees, planning policy and guidance and the key, material planning considerations. This is the process we would expect and so we are unlikely to find fault.
• Even if we were to find fault, we would not be able to provide the outcome Mr X wants. Only the courts can quash planning decisions. Only planning authorities and planning appeal bodies can make decisions on what measures to protect amenity should be required from developers.
• The Council sent two responses to Mr X’s complaints. The second complaint response referred Mr X to the Ombudsman. I have also reviewed our records on how councils deal with complaints handling. I did not find evidence of systemic complaints handling problems. Further investigation into Mr X’s complaint about the complaints process will not affect the Council’s planning decision and it is unlikely we would find a significant injustice that we should remedy.

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Final decision

24. I ended my investigation as it is unlikely to result in a finding of fault or a meaningful outcome for Mr X.

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Investigator's decision on behalf of the Ombudsman