Summary: We found fault on Mrs J’s complaint about the Council failing to properly discharge a condition about noise on planning consent. The Council discharged it without seeing a noise assessment report, failed to show why it decided the applicant did not need to supply one, failed to show the evidence it considered and based its decision on, or gave reasons. It failed to show it properly considered the ability of the glazing, the ventilation system, and garden screening to protect the property from excessive noise. The agreed action remedies the injustice caused.

The complaint

1. Mrs J complains the Council failed to properly discharge conditions about noise and contamination on planning consent for the house she bought in 2021; as a result, her quality of life and mental health have suffered through noise from a nearby road, and she suffered financially as she paid for legal advice and a noise impact assessment.

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The Ombudsman’s role and powers

2. If we are satisfied with an organisation’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)
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 may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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Legal context

5. The general power to control development and use of land is set out in the Town and Country Planning Act 1990. Permission is required for any development or change of use of land and may be granted by a Local Planning Authority. For this complaint, the Council is the Local Planning Authority.
6. Where necessary for approval of a permission, a planning condition may be imposed to require details of specific aspects of a development which are not provided in the original application. The applicant must satisfy the condition and apply for it to be discharged by the authority.
7. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Government guidance says local planning authorities should act proportionately in responding to suspected breaches of planning control.
8. Section 171A of the Town and Country Planning Act 1990 provides that a breach of planning control is defined as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

9. Where there is a breach of a planning condition, the authority may serve a Breach of Condition Notice under section 187A. Failure to comply with a Breach of Condition Notice is an offence that may be tried in the magistrates’ court.

Outline planning applications and reserved matters

10. Outline planning permission establishes the acceptability of development, subject to later agreement to details of ‘reserved matters’.
11. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.
12. An application for approval of details of reserved matters is not a planning application, and there is no legal requirement to give publicity to the application.

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Contaminated land

13. Government guidance states to ensure a site is suitable for any potential development, contamination should be considered throughout the planning process. It states, “where there is reason to believe contamination could be an issue, applicants should provide proportionate but sufficient site investigation information (a risk assessment) prepared by a competent person to determine the existence or otherwise of contamination”.
14. Where contaminated land cannot be dealt with through planning processes and contamination poses an unacceptable risk to human health, the government has published statutory guidance for Local Authorities in line with the Environmental Protection Act 1990.

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How I considered this complaint

15. I considered all the information Mrs J sent, the notes I made of our telephone conversation, the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Mrs J and the Council. I considered their responses.

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What I found

16. The Council granted consent for the development of new houses several years before Mr and Mrs J bought their house in February 2021. Within a day of moving in, Mrs J realised there was a problem with noise from the adjacent dual carriage way. This is about six metres from their property. They cannot open the windows for ventilation as this increases the noise from passing traffic. The trickle vents installed in the windows do not ventilate the rooms properly when the windows are closed.
17. Mrs J complains about how the Council dealt with applications from the developer to discharge conditions in the planning consent about noise and land contamination.
18. In response to my enquiries, the Council accepted short comings in the way it dealt with the planning application and recognised the impact this had on Mrs J’s amenities. It also confirmed it the steps taken to try and resolve the problems. It recognises the consequences of the fault may be wider than just that affecting Mrs J.

Condition A: Noise

19. Mrs J argues the Council wrongly discharged a condition about noise following its granting of planning consent. Mrs J argues one of the conditions attached to the planning consent states:

• no development shall start until a noise assessment report is done;
• this is sent to the Council along with its conclusions;
• the conclusions are likely to include acoustic fencing, acoustically treated glazing, and ventilation of habitable rooms; and
• there needed to be a sufficient scheme of noise attenuation measures before works start.

20. This condition had an Informative attached which is put on a decision notice as guidance for the developer. It is not a condition and nor is it enforceable. It allows a council to draw an applicant’s attention to other relevant matters.
21. In it, the Council explained its environmental health team said the site next to the development site was recently developed. As part of this, a noise assessment was done. This said several measures were used on that site to mitigate noise from the dual carriageway, including acoustic fencing, acoustically treated glazing, and ventilation of habitable rooms.
22. About a year after granting consent, the developer wrote to the Council about condition A saying that, ‘Noise assessment is being undertaken by a specialist and we will revert back when the due sampling process has been completed’.
23. About a year before Mr and Mrs J bought their house, the Council received an application to discharge various reserved details including condition A. When discharging the condition, the notice referred to a document, a glazing brochure it received.
24. The Council accepts no noise assessment was sent with the application to discharge condition A. The developer’s agent had told it a noise assessment was being done by a specialist. The environmental health officer noted the failure to send the assessment when receiving the application and told the agent.
25. In a later email, the officer told the agent the Council would send a further email to advise whether a noise assessment needed doing. A couple of months later, the agent told the Council the, ‘attenuation/mitigation went straight to a robust acoustic glazing’. The email referred to the glazing installed as the Pilkington Optiphon (a glazing manufacturer) product which was approved when the Council issued the notice in January 2020.
26. The Council accepted:

• the wording of condition A was ‘clumsy’. This was because it was imprecise and made suggestions about certain mitigation measures. It accepted the Informative shows it assumed the same mitigation measures on the adjacent site would also apply to this development site. The Council considers this might explain why noise assessment was in the condition as there was an assumption it would result in the same mitigation measures. It did not explain why there was no acoustic fencing;
• there was uncertainty about whether the glazing installed provides noise mitigation that might have been achieved through approved specification;
• the acceptances do not reflect well on the planning outcome; and
• it was dissatisfied with the discharge of the conditions application, especially the lack of evidence showing exactly why decisions were made, for which it apologised

27. In April 2021, Mr and Mrs J instructed their own consultant to carry out a noise assessment of their home. This was done during national Covid-19 restrictions. The results found noise levels within the main bedroom and particularly the garden exceeded the guidance widely adopted by local authorities. It recommended: replacing the trickle vents in the windows with mechanical supply and extract ventilation; replacing installed glazing with glazing with significantly higher acoustic performance; installing a higher acoustic screen to the garden. I have seen a copy invoice for the fee they paid to the consultant amounting to £500.
28. Between April and August, Mrs J instructed a planning solicitor for legal advice. The invoices she provided show the costs amounted to £8,076.
29. In May, officers visited Mr and Mrs J to inspect the property and consider the problem. They agreed to provide noise monitoring equipment which was done the following month. This showed elevated noise levels from road traffic in the upstairs bedroom. They decided to do further monitoring and assessment. The Council approached several acoustic consultants to assess what mitigation measures it could install in her home and their impact on noise levels.
30. In August, the Council instructed its own noise consultant to assess noise affecting Mr and Mrs J’s house. Monitoring was done in September.
31. In November, the Council received the full results. These found the maximum noise levels with the windows closed in the bedrooms exceeded recommended levels by a ‘considerable margin’. It noted with windows open, the maximum noise level criterion will be exceeded during the day and night. Windows had to be kept closed.
32. It concluded day time levels in the garden were significantly above the criteria. It recommended increasing the height of the fencing as part of the need for ‘substantial screening’. It also noted the primary means for reducing internal noise in the bedrooms is to upgrade the glazing with alternative means of ventilation and mitigation against overheating needed.
33. Mrs J provided a copy of an air quality survey done at her home in November due to her concerns about pollution from nearby traffic. This looked at nitrogen dioxide levels on her property. It found annual levels for her back garden would not be exceeded. It concluded the results show it unlikely her property was in a position which would exceed guidance levels for nitrogen dioxide. She sent a copy of the invoice for this service which amounts to £360.
34. In December, the Council asked the consultant to do an assessment of each house where Mrs J lives and consider what mitigation measures it could take. This is ongoing because the developer has not provided full details about the glazing specification and the façade construction. It expected to receive a completed report in May 2022.
35. It also confirmed it contacted the building company which constructed the houses to explore what action it might consider. A meeting finally took place with the company in January. One course of action discussed was refused by Mrs J. This was for the developer to take mitigation measures recommended by the consultant’s report.
36. The Council confirmed it is working with its consultant to identify in more detail, what might be done for effective noise mitigation.
37. I have seen correspondence with the Council Mrs J sent me. This shows it met the developer in March. The developer asked for further information, including valuation advice which the Council would obtain. The Council explained to her why it was in discussions with the developer. This was because it considered there was a reasonable chance of the developer resolving it quicker than the Council could. It explained the developer sold a house that was deficient. While the Council accepts there were failings in its processes, it considers this does not prevent it from going back to the developer to correct some or all of those wrongs.
38. The Council instructed a valuer to value the property based on the recommended alterations in place. I have seen a copy of this report. With the required works completed, the report values Mrs J’s house about £40,000 higher than the purchase price.
39. In May, the Council asked Mrs J if she wanted it to sort out the windows so external noise through them is reduced. The Council was looking at the developer paying for the windows and for it to also agree to her request of it buying the house.

Analysis

40. I found fault on this complaint and in doing so, took the following into account:
1. The Council accepts the wording of Condition A is imprecise. Imprecision creates lack of clarity about the obligation the condition imposed and with its discharge.
2. The condition required the carrying out of a noise assessment report, which the developer would send to the Council with a scheme of noise attenuation. The developer failed to comply with the requirements of this condition. When discharging the condition, the Council failed to: i) ensure it had a noise assessment report with conclusions; and ii) failed to ensure there was a scheme of noise attenuation measures.
3. The Council was aware by the planning agent’s email sent in August 2018 that a noise assessment was being done by a specialist. The email said it would contact the Council about it when the sampling process was done. The Council replied saying it would let it know if one was needed. There is no evidence showing the reason why it said this to the agent. Nor is there evidence of what it took in to account when reaching this decision. There is no evidence showing whether it went on to consider one was unnecessary at the time it discharged the condition or why it reached that view.
4. There is no evidence of the Council going back to the agent and asking when the assessment would be completed or indeed whether it was ever completed. Nor did it ask for a copy of it.
5. The Council agreed to discharge this condition almost two years later, based only on a brochure from a glazing manufacturer. There is nothing to show what other evidence it had before it when reaching this decision. Nor is there evidence showing what weight the Council gave this brochure, how it considered it, whether it had any other evidence before it, or the reason for its decision.
6. There is no evidence showing what consideration the Council gave, when discharging the decision, to:

• the ability of the installed glazing to provide adequate noise reduction when closed;
• the effectiveness of the trickle vents to adequately ventilate rooms when the windows were closed;
• the ability of the trickle vents to ventilate rooms when windows were closed without increasing the level of noise in them from passing traffic;
• the need for measures to reduce noise to the garden from the nearby road, such as acoustic fencing and how high this needed to be, to be effective; and
• any other measures this site needed, which is closer to the road than the site referred to in the Informative, to reduce the impact from noise from traffic.

41. I am satisfied the fault identified caused Mrs J an injustice. This is in the form of distress. This included: uncertainty as to whether the situation would have been different but for the fault; significant stress, inconvenience, and frustration since purchasing the house. There is also the lost opportunity of having the discharge of this condition properly considered at the time. Her amenities are also affected.
42. I have also seen medical information from her GP explaining she is suffering from anxiety.

Contamination

43. The potential for land to be contaminated is a material planning consideration. It is the responsibility of owners and developers to establish the extent of any potentially harmful materials on sites. It is the duty of the Council to ensure owners and developers carry out appropriate investigations and make proposals for dealing with any contamination. The Council must make sure the land is, or will be made, suitable for its proposed use.
44. Starting development without properly implementing planning consent granted is a breach of planning consent which means the consent could lapse if the condition breached goes to the heart of the consent. (R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin)
45. A developer would need to get the Council to discharge the condition before the expiry of planning consent.
46. When the Council granted consent, it did so subject to ‘Pre commencement conditions’. The pre-commencement conditions about land contamination were:

• Condition B: this said no works other than demolition shall start until a site investigation of the nature and extent of contamination, based on a phase 1 assessment for the site, has been submitted and approved by the Council.
• Condition C: this said if unacceptable contamination was found during the site investigation, a report setting out action to make the site suitable for the development needed sending to the Council for its approval. A report also needed sending showing the effectiveness of any remediation and the measures needed before development starts.
• Condition D: this said within three months of completion of the measures identified in the approved scheme, a report showing the effectiveness of the remediation done, needs sending to the Council.

47. The Council explained conditions B, C, and D were not discharged. It received an application to discharge them but, the Council had ongoing concerns about the adequacy of information received and the lack of additional detail if had asked for. The discussions it had with the developer about noise also included land contamination. The developer has since sent a retrospective application to discharge the conditions. The Council notified Mrs J of the application for comments but, it has yet to reach a decision on it.

Analysis

48. Failing to discharge planning conditions at the correct time can invalidate planning consent. The law considers breaching a condition going to the ‘heart’ of consent makes its implementation unlawful. Starting development without discharging relevant conditions means consent is likely invalidated and the developer may not be able to implement it lawfully. Whether or not planning consent is invalid is for the courts, not the Ombudsman, to decide.
49. I found no fault on this complaint by the Council. The responsibility for complying with Conditions B, C, and D rested with the developer. It ran the risk of invalidating planning consent by not carrying out the actions required by these conditions.
50. The Council has not yet discharged the land contamination condition. This means it retains some control over this issue which was the purpose of imposing a planning condition in the first place.

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Agreed action

51. I considered:

• our guidance on remedies;
• the Council’s acceptance of short comings in the way it dealt with the planning application, its recognition of the impact this had on Mrs J’s amenities, and the steps taken to try and resolve the problems caused;
• the efforts the Council made to investigate the problems and negotiate with the developer/builder about remedial works for all properties on this site;
• the lack of details about the scope of the instructions Mrs J asked the solicitors to advise her on when considering whether the fees incurred were disproportionate, or the advice solely arose from the identified fault. On balance, and based on the information I have, I considered it was reasonable for Mrs J to seek legal advice about the issue and have an initial consultation with her solicitor and some follow up contact about it;
• Mrs J’s refusal to allow the suggested changes to the windows and ventilation system as her preferred option was a buy out; and
• some of the problems Mrs J now complains about were reasonably foreseeable when she bought the house. This would include, for example, deposits on her property from the exhausts of passing traffic.

52. The Council agreed to carry out the following action within four weeks of the final decision on this complaint, unless otherwise stated:
1. Send Mr and Mrs J a written apology for its failures when discharging the noise condition to: ensure it had a noise assessment report; ensure it considered whether noise attenuation measures were needed; ask the developer about the assessment report it had started, or for a copy on its completion, explain why it did not need to see it and the reason for this decision; show the evidence on which its decision to discharge it was based; provide reasons for discharging it; show it considered whether the installed glazing and ventilation system were adequate to prevent noise disturbance within the property; show whether it properly considered what measures were needed in the garden to reduce noise levels.
2. Review the actions of officers to discover why the identified failings occurred and draw up an action plan to ensure they are not repeated on future cases.
3. Consider the training needs of officers dealing with the discharge of planning conditions.
4. Draw up an action plan for the mitigation works already identified by both noise assessment reports (particularly glazing, ventilation, and measures for the garden), along with any further measures that might have since been recommended.
5. Ensure the works in the action plan are done at no expense to Mrs J within six months. Should the developer/builder refuse to pay or arrange or contribute to the mitigation measures, the Council agrees to fund and do the mitigation measures instead. The Council should provide updates to Mrs J about progress every month.
6. It will contact all residents of Mrs J’s road who might similarly be affected and explain what actions the Council is taking and will take because of the final decision on this complaint.
7. Reimburse Mrs J the £600 cost incurred for the noise assessment.
8. Contribute £70 towards the invoices she has provided for earplugs and electric fans bought to reduce noise and provide some ventilation in her property.
9. Contribute £1,000 towards Mr and Mrs J’s legal fees.
10. Pay £2,000 to Mr and Mrs J for the avoidable injustice the identified fault caused.

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Final decision

53. I found fault on Mrs J’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman