Summary: Mr X complained the Council failed to notify him of a planning application, and did not consider the impact of noise when deciding to amend a planning condition. He also complained the Council failed to consider an objection he made on a later application. There was no fault in notification, but the Council did fail to consider applications in 2016, 2017 and 2020 correctly. We recommended it made a payment to ensure an acoustic fence was provided, as originally conditioned.

The complaint

1. Mr X complains, in 2017, the Council failed to notify him about his neighbour’s application to amend a planning condition which required the developer to build and retain an acoustic fence. He complains that when considering the 2017 application, the Council failed to take account of the impact of noise from traffic using the development when built.
2. Mr X also complains that the Council failed to properly consider the objection he made in 2020 when his neighbour made another planning application which included changes to the boundary fences. It also failed to consider the impact of removing a separate pedestrian access to the development.

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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. 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)

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How I considered this complaint

5. I spoke to Mr X and considered his complaint and information he provided. I considered key planning documents which showed the planning history and the issues Mr X complained about in 2017 and 2020.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Background

7. In 2015 the Council approved a planning application to build two houses on land near his home. The access for the new houses is a lane running alongside Mr X’s property. The plans showed the applicant would “replace/enhance the existing boundary fence to improve acoustic performance and privacy from vehicles using driveway”.
8. When considering the 2015 application, the case officer listed material issues from objection letters. These included the following:
• Concerns about the increase in noise and disturbance from vehicles passing close to existing homes to access the new properties.
• Comments about disturbance during development.
• At a previous appeal in the area, a planning inspector had commented that accesses close to flank walls and increased traffic would be “increasing the exposure of the occupiers of those houses to additional noise and disturbance from passing traffic”
• An objector requested a noise reduction barrier was installed prior to the commencement of development.
9. In respect of residential amenity the report stated:

“I have read the observations in the representations and there can be little doubt that the traffic associated with 3 units as opposed to 1 will have a detrimental affect on the amenity of adjoining occupiers given the width of the lane and its proximity to neighbours. However, I must advise you that the judgement in this case is whether that detriment is so serious to warrant refusal or whether it can be mitigated against by way of a condition on any approval.” After considering likely levels of traffic, the case officer concluded… “On balance it is my opinion that it would be difficult to justify that one movement in or out of the site per hour would represent a serious loss of residential amenity if adequate new ‘sound’ fencing were to be provided by condition.”

10. The application was approved by the planning committee subject to the inclusion of a condition about the boundary treatment. It stated: “The boundary treatment shall be carried out in accordance with the approved details…in accordance with a timetable to be agreed in writing…The timetable shall include the completion of an acoustic screen fencing to an agreed height and design along the access drive before commencement of development on site along with its retention.”
11. The condition made it clear that the applicant was required to retain an acoustic fence along the access drive.
12. In 2016, the applicant submitted a plan to the Council to agree the height, design and materials of the boundary treatments. The plan submitted showed the fence along the access road was only going to be an acoustic fence during construction. Thereafter it would be a 2.4m ‘hit and miss’ fence. The Council partially accepted that this discharged the condition. The decision notice stated the submitted scheme was acceptable, but it was only partially accepted as it was yet to be implemented and retained.

2017 Application

13. In 2017 Mr X’s neighbour applied to make minor amendments to the 2015 planning permission and to vary several conditions. In respect of the condition about boundaries the applicant asked to amend it to read 'The timetable shall include the completion of acoustic screen fencing to an agreed height and design along the access drive to adjoining properties…for the duration of the construction of the dwellings. Thereafter permanent fencing to be provided as preferred by the [the neighbours] and approved in writing by the Local Planning Authority”.
14. A landscaping plan submitted with the application was the same as that previously sent to discharge the 2015 condition. It specified that during construction, the existing boundary fence would be insulated and on completion of the works, the fence would be a ‘hit and miss’ fence.
15. The Council provided us with evidence from its records that it sent notification letters to Mr X and other neighbours about the 2017 application. Unfortunately, Mr X did not receive notification, so he did not comment on it.
16. The case officer’s report stated the changes to condition six “would the (sic) potential occupiers to have control over future design of boundary fencing after acoustic fencing during construction…”
17. The report stated changes to the boundary treatments had “already been agreed through the compliance with conditions request and with the approval of the landscaping plan”. The report later considered the changes. It stated

“The other issue is to do with the change to boundary treatment to retain the acoustic fence during construction, but it would be replaced with a hit and miss fence after construction to a design that the potential occupiers may chose. The revised landscaping scheme agreed with the previous compliance with condition report drawing …shows that during construction, the acoustic boundary fence would be retained but after it would be replaced with a new 2.5m hit and miss timber fence. The plot boundary walls and hedges would not be affected.”

18. The application was approved, allowing for a hit and miss fence along the boundary of the access road and Mr X’s property rather than the acoustic fence required in 2015.
19. In 2020 a further planning application was submitted. It involved changes to landscaping conditions and further amendments to boundary fences. It also sought to remove a separate pedestrian access.
20. Mr X received notification from the Council and made comments. He objected to the changes to the boundary fence. He stated the proposed changes considerably weakened the original planning condition which required acoustic fencing to mitigate noise. He asked the Council to reject the change to the original planning condition.
21. Mr X complained the case officer’s report did not consider his comments or the issue of noise from traffic that led to the imposition of a condition in 2015 requiring an acoustic fence. The Council acknowledges that it received Mr X’s comments about the boundary and that the case officer’s report did not make any reference to them. It noted that the officer considered the need for fencing in the context of screening but not noise. The Council stated, in 2017, officers decided an acoustic fence was only required during construction. So, it would have been difficult to come to a different conclusion in 2020. The Council noted the applicant had difficulty providing the footpath due to protected trees. It stated there was no highway objection to the original application, so it was not unreasonable to agree the removal of the pedestrian access. The Council approved the 2020 application.
22. In response to Mr X’s complaint, the Council accepted the 2017 case officer’s report was light on detail about the acoustic fencing, and should have set out why it was now only required during construction. However, it stated the issue of noise was considered. In 2020 the Council stated, given the decision in 2017, the officer had focussed on the revised boundary treatment rather than the issue of noise and disturbance. It accepted there was some fault in 2020 as the officer had not shown they considered Mr X’s representations. The Council concluded the original 2015 conditions were not fundamental to the acceptability of the planning application. They would have been difficult to justify if challenged. So, while there were issues with the 2017 and 2020 reports, the Council considered it was unlikely this affected the outcome.

Was there fault by the Council?

23. Although Mr X did not receive notification of the planning application in 2017, the Council’s records indicate this was sent. There was no fault on the notification issue.
24. However, we found there was fault by the Council. In 2015 the Council applied a planning condition to mitigate against noise from an increase in traffic using the access road along side Mr X’s property. This required an acoustic fence to be built and retained.
25. However, when the applicant submitted an application to discharge the condition in 2016, the Council accepted plans which only provided an acoustic fence during construction. The 2016 plans did not adhere to the requirements of the condition, so they should not have been accepted in discharge of the condition. Accepting this plan was fault.
26. In 2017, the applicant applied to formally amend the condition. When the Council considered the application, they failed to take account of the need for the condition to mitigate noise. It appears, to an extent, the officer accepted the plan which was wrongly accepted in 2016. This was fault. There was further fault in 2020 when the Council failed to consider Mr X’s objection in which he disagreed with the change to the fence.
27. I note the Council’s view that the outcome would not have been different, but for the fault. On balance, I disagree. I found that had the 2016, 2017 and 2020 applications been properly considered, it is likely that the change to the fence would not have been allowed. I say this because conditions should only be applied when they are necessary. The condition was properly applied and found to be necessary in 2015 to mitigate noise. No reasonable grounds have been put forward in subsequent applications of changes in circumstances that warranted a change to this. As a result of the failure to properly consider the issue, the applicant can construct a different type of fence which is not acoustic and will not mitigate the noise as the Council originally conditioned.
28. Mr X told us that his neighbour is prepared to erect an acoustic fence if he pays a contribution to the cost. To remedy the complaint, I recommended the Council paid the reasonable difference in cost between the fence that is now permitted and an acoustic fence along Mr X’s boundary. Mr X will arrange with his neighbour to upgrade the fence. The Council agreed to my recommendation.

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Agreed action

29. Within four weeks of my final decision:
30. Mr X will provide the Council with evidence to show the cost of upgrading the fence along his boundary to an acoustic fence. The Council will pay Mr X the difference in cost to enable an acoustic fence to be built. Mr X will arrange with his neighbour to upgrade the fence.

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Final decision

31. There was fault that warrants a remedy. The Council agreed to remedy the complaint as we recommended, so we have completed our investigation.

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Investigator's decision on behalf of the Ombudsman