Summary: Mr X complained about the way the Council dealt with a planning application and discharge of conditions application regarding noise and boundary treatments. We found there was fault by the Council. We recommended the Council apologised and made a payment to recognise there is uncertainty about how much the fault increased noise at Mr X’s property.

The complaint

1. Mr X complains that reflective noise was not properly considered when approving a development near his home. He also complains that the issue was not properly considered when discharging planning conditions and advice from noise consultants was not passed on to the planning department.
2. Mr X complains that a change to how the development would be screened from a motorway was significant and should not have been agreed when discharging conditions. Rather, the Council should have sought another planning application.
3. He complains that a new fence screening the development from the motorway causes increased road noise to him and other existing residents.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I spoke to Mr X, considered his complaint and the information he provided. I asked the Council for information and considered its response to the complaint.
7. Mr X and the Council had 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

Council Complaint Process

8. The Council uses a two stage complaints process. The Council’s policy says, at both stages of the process, the investigation will be conducted by the most appropriate service manager, usually with support from their team.

What happened

9. Mr X’s complaint concerns a large housing development alongside a motorway. The Council approved the application in late 2020. The case officer’s report to the planning committee set out the details of the development. It stated the developer planned to install a 9m tall Eco Barrier along the boundary of the site and the motorway. This is a metal framework filled with earth and planted out. It was proposed to reduce the impact of motorway noise on the houses being built and for its visual and ecological impact as part of the landscaping scheme. The approved landscaping plan showed the Eco Barrier. However, the decision to approve the development was not conditional on the Eco Barrier being provided. Rather, the Council applied conditions requiring the developer to provide details of boundary treatments and a scheme to protect the new houses from noise prior to the start of development.
10. The Environmental Health (EH) department commented on the application and raised no objection, subject to conditions. These required details of noise mitigation measures to be provided prior to development commencing.
11. In July 2021 the developers sent information to the Council seeking to discharge the conditions about boundary treatments and noise mitigation measures.
12. The details submitted to fulfil the boundary condition included plans showing an 8m high acoustic fence along the boundary with the motorway. This was proposed instead of the Eco Barrier set out in the original plans. The developer stated the acoustic barrier fence specification and plans were intended to be a satisfactory solution to both the boundary condition and noise mitigation condition. No objections were received from highway officers or Highways England.
13. The case officer’s report noted the specifications of the fence and that it would be visually screened from within the site using mature trees and soft landscaping. The Council noted, while it was tall, as seen from the motorway, this type of fence was not uncommon and would not be out of character. The report noted the fence was to be provided instead of the original Eco Barrier due to the presence of underground utilities. Taking the above into account, the officer found the fence acceptable as a boundary and that this condition could be discharged. Mr X disagreed that the whole of the boundary was affected by utilities.
14. The developer’s submission for the noise condition stated the fence details from the boundary condition also covered the management of motorway noise. However, in support of the proposals for the noise condition, the developer submitted a noise assessment report. This referenced a sound pressure level survey based on two noise barrier specifications, both were Eco Barriers at different heights, not a fence. Appended to the noise report were details of the ECO Barrier.
15. In August Mr X commented on the proposal, he stated the noise survey did not consider the reflected noise from the fence and the impact on land on the other side of the motorway.
16. The EH department obtained professional advice from an external noise consultant. The advice was that the developer should re-model the site and ensure the varying land heights on it had been properly taken into account. Amongst other things, the advice stated the re-modelling needed to take account of reflective noise from the proposed barrier fence.
17. In September, an Environmental Health officer (EH) provided comments to the planning department. The comments refer to both an Eco Barrier and a Fence, so it is not clear if the EH team were clear which of these options the developer intended to erect. They noted, even with the proposed barrier, noise levels in gardens exceeded the 50dBA standard by over 10dBA. They required more information on the proposed Eco Barrier as these noise levels were not acceptable. They suggested alternative man-made barriers (fences) should be considered which may combine reduced height with greater sound absorption. The EH officer went on to say that the proposed fence was very high at 8m, and they questioned if the height was acceptable in planning terms.
18. The EH comments did not reference reflective noise or the advice that re‑modelling should be carried out. But they did say that more information was needed.
19. The planning officer’s report for the discharge of the noise condition noted the objection by the EH officer. However, it did not address concerns that more information was required as the noise levels remained too high. The case officer’s assessment focussed only on the EH comments on the visual appearance of the fence. The report stated the principle of a fence had been accepted as the Council was minded to accept the fence to discharge the boundary fence condition. The case officer concluded that the proposed fence overcame the EH objections. The report noted Mr X’s objection and comment on reflective noise but the appraisal of the application did not address this point.
20. The officer discharged the noise condition. The developer subsequently erected the 8m high fence along the boundary with the motorway.

Mr X’s Complaint

21. Mr X lives in a housing estate on the other side of the motorway. He complained that:
• The planning officer should not have approved a change from an Eco Barrier/earth bund to a fence when discharging conditions. He considered this should have been put to the planning committee. They originally approved the application based on the applicant providing an Eco Barrier along the site boundary. He later argued that this was a significant change that should have required a fresh planning application by the developer.
• The Council failed to consider the issue of reflected noise. He complained that the fence caused noise to be reflected back towards the housing estate the other side of the motorway. He complained it was noisier as a result.
22. The Council’s Environmental Health manager considered the complaint at Stage One of the complaint process. His response stated he had been asked to investigate as ‘a manager who is independent of the service concerned’.
23. The stage one response found there was no requirement for officers to refer the applications to discharge conditions to the planning committee. It stated the Council’s scheme of delegation allowed for these to be determined by officers under delegated powers. The response notes the decision was signed off by a manager.
24. In respect of the reflective noise issue, the response stated EH was formally consulted and provided comments about the acoustic fence which specifically related to its height, and proposed alternatives be considered. However, the response stated it was not for EH to dictate the solution because this was a judgement for the planning department. The Council stated the planning department’s professional opinion was that the fence would mitigate against noise generated by the motorway. Therefore, it had not acted unreasonably. The response stated EH had not raised the issue of reflective noise in their comments, so the planning department determined the applications on the basis no concerns had been considered about this.
25. At the later stages of the complaint investigation the Council responded to Mr X’s concern that the EH manager was not independent of the issues he raised, as EH’s comments were relevant to his complaint. The Council stated the EH manager was tasked only with responding to the issues raised about the planning team. As the planning service manager had been directly involved, the EH manager was asked to respond. He had no direct involvement in the matter previously.
26. At the second stage of the complaint process the Council’s investigation was more detailed. It identified that EH had received the independent noise advice from a consultant. It found that not all of the advice had been relayed to the planning team by EH. EH did not refer to reflective noise nor did it explicitly refer to the need for further modelling. The planning officer told the Council’s investigation, if he had been given all of this information, he would have sought more information from the developer. However, the Council’s findings were that because the planning officer interpreted the comments he did receive reasonably, he reached a professional judgement on the comments provided. It noted the condition did not require consideration of reflective noise. As a result, it found the planning officer was not at fault. The Council stated it would ask officers from all departments to be clearer when setting out what information they believed was needed in response to future planning applications to prevent a reoccurrence of this issue.
27. The Council remained of the view that it was reasonable for the EH manager to consider the complaint at stage one of the complaints process.

Was there fault by the Council

28. I considered if the change from an Eco Barrier to an acoustic fence was such that it warranted a separate planning application. Although the Eco Barrier is referenced in the case officer’s report and it formed part of the originally approved landscaping plan, I found that this change did not, in itself, require a fresh application. I acknowledge that the Eco Barrier was referenced when the application went before committee and that the case officer concluded it had visual amenity value. However, boundary treatments and the means by which noise from the motorway would be mitigated, were subject to conditions. The conditions required the developer to confirm the details of how these would be addressed prior to construction, the conditions did not restrict the developer to use of an Eco Barrier. The wording of the proposed conditions was known to the committee via the case officer’s report.
29. As a result, it was open to the developer to propose alternative methods for boundaries and noise mitigation as a result. These could be considered by officers under delegated powers. It is common for details of applications that have been decided by committee to be decided by officers in this way. This was not fault by the Council.
30. I found no fault in the way the Council considered the application to discharge the boundary treatment condition. The decision to approve the details set out by the developer to meet this condition was one that officers were entitled to take.
31. However, I found there was fault by the Council in the way that it assessed the proposals to mitigate noise. It is evident that Mr X raised the issue of reflective noise when commenting on the discharge of conditions application. This was not addressed by the planning officer.
32. In addition, the EH officer’s comments did state that more information should be obtained. The EH comments also seemed ambiguous in that they referred to both an Eco Barrier and a fence. Planning should have clarified with EH whether EH officers were clear what type of boundary was being proposed and which their comments related to. They should also have established what information EH considered was required. Planning officers instead, focussed on the comment about the scale of the fence and visual impact. The failure to address Mr X’s comments and EH’s view that more information was needed, was fault.
33. EH too were at fault. The Council identified that EH officers’ comments were not sufficiently clear; they stated more information was needed but they should have set out what re-modelling and further information their consultant suggested be obtained. In addition to Mr X, the external consultant had stated reflective noise needed to be considered. This too was not passed on by EH; it was not properly considered.
34. The Council’s complaint responses to Mr X picked up on the issues above, and identified that, if the planning officer had been aware of all of EH’s advice, they would have sought more information rather than approving the discharge of conditions. This leads to some uncertainty about the eventual outcome and whether noise would have been better mitigated had the fault not occurred.

Action taken by the Council since the planning approval

35. In response to our enquiries, the Council stated it had received a number of complaints from local residents about the visual appearance and reflected noise from the fence. Notwithstanding its position that no fault had occurred, it told us it had considered various options to address these concerns. As part of its consideration of the issue it commissioned a noise report of its own to establish the impact of the fence in terms of reflective noise.

Noise Report

36. The noise report used noise prediction software to consider the potential impact of the fence erected alongside the motorway on existing houses on the other side of the motorway. The consultants reviewed the developer’s model of predicted noise and established a contour map showing predicted noise at a number of receptor points (mainly houses). These were generally properties closest to the motorway.
37. I have not repeated the findings of the noise report here as it is technical in nature and the issue is complex. In its executive summary of the noise report, the Council states:

‘The assessment … indicates that the sound barrier results in a 1.1 decibel increase. However, this increase is deemed small, inconsequential and below the threshold of any perceived change in sound level. Meaning that the slight change in pitch of the sound should mean that screened gardens are unaffected and equally inside houses the noise should be no more noticeable.

The consultant applied alternative modelling software which also indicated some changes in noise pitch. These changes are judged to be minimal and within acceptable limits but are likely to be noticeable to those who have lived with the particular pitch spectrum of the traffic noise prior to the erection of the new noise barrier.

Human perception in a case such as this is likely to be of an increase in noise, partly as the sound level has increased slightly in a few locations but largely because of a change in the nature and character of the sound which will be perceived as noisier until receptors have sub-consciously adjusted and become de-sensitised to it.’

38. It should be noted that the consultant’s report was a predictive model, rather than the measurement of actual noise being experienced by individual properties.
39. Mr X questioned the fact that the predictions in the consultant’s report did not consider the impact on properties as far back from the motorway as his. Mr X observed that some of the predicted values in the consultant’s report furthest back from the motorway were some of the highest. The Council’s consultant observed that the report he produced had included caveats to explain its limitations. He noted the report stated “Accurate determination of the change at any one dwelling is not possible as this is beyond the capability of modelling and the values provided in this report are indicative average ranges of change only.  No individual should look at a particular location and equate this as the change whether average or otherwise." 
40. Mr X remains concerned that the noise at his property is too great, and the impact had not been properly established by the Council. He stated he had done his own measurements and found noise at his property was above World Health Organisation (WHO) standards for new housing.
41. Following the noise modelling exercise undertaken in 2022, the council arranged for site observations and measurements to be conducted. This took place on 21 August 2023. The Council says this was ‘to determine whether any measured change in the noise environment could be the result of reflection from the A1M noise barrier …’ 
42. A summary of the exercise provided by the Council stated:

“Analysis of the relevant acoustic principles meant that the modelling exercise was impractical with respect to properties north of [a named bridge] due to the angle of reflected noise, predicted increases being away from buildings, and the bridge and associated road embankment, which obstruct noise pathways towards the north-east. This area was not modelled due to increased error that is introduced but also because of lower reflection in that direction.

The observations and measurements on 21st August 2023 found no evidence of any hotspots of reflected noise nor any reflected contribution at all. The road traffic noise was predominantly added to from a more distant length of the road to the south. The distant contribution, called downwind refraction, cannot be modelled as the relevant formulas discount it. This extra refracted noise renders any possible reflection content too small to be observed or measured. Reflected noise was not found and at most it can only be a minor element compared to downwind refracted noise that is a major contributor.”

Visual Impact

43. In terms of the visual impact, the Council had noted that landscaping would be implemented on the development side of the fence. The Council considered painting the motorway side, adding soft landscaping on the motorway side and planting on/over the existing fence. All of these options were considered unsuitable.
44. The removal of the barrier and its replacement with a more visually sensitive design was also considered, but the developer dismissed this because it maintains the correct solution was chosen following a detailed assessment of the requirements. The complete removal of the barrier (and uprating noise protection measures for each property) was also considered, but the developer stated this was not feasible to protect the properties from motorway noise.
45. Overall, the Council recognised that the need for additional modelling should have been pursued and that concerns have been raised about reflective noise since the fence was erected. However, they considered, based on the sound modelling that the impact was minimal.

Injustice

46. I found there was fault with the way the Council considered the discharge of the noise condition application. The fault by the Planning and Environmental Health teams meant that reflective noise was not considered and there is doubt about whether a different noise mitigating solution may have been required had the fault not occurred.
47. Assessing noise and how houses across the motorway have been affected is difficult and complex. There are no ‘pre-development’ noise measurements of motorway noise at Mr X’s property to compare the levels before and after the fence was erected.
48. After considering the Council’s noise reports and Mr X’s comments, I have found that there is injustice to Mr X in that, he is left with some uncertainty about how much he has been impacted. There is also uncertainty about whether the outcome would have been different, and the noise may have been better mitigated, had the fault not occurred. As a result, I have made recommendations for actions the Council should take.

Complaint Handling

49. Although the Council’s complaint process does not specify that complaints will be handled by a manager who is independent of the departments concerned, Mr X was given a reasonable expectation that this was the case. The EH manager stated he was investigating because he was independent. Given the crux of the complaint was about a matter than involved EH and Planning, it would have been appropriate that someone else provided the response. Greater consideration should be given to independence in similar matters in future.
50. Although the later stages of the complaint process established the facts in more detail, even when the Council identified fault by the EH team, it does not appear to have found its decision was faulty as a result. This was because the overall decision maker was planning, whose decision (the Council found) to be professional judgement, irrespective of whether it was based on incomplete facts from EH. This finding does not reflect that the Council, as a whole, made an error which affected the outcome. This could have been better considered during the complaints process, because there was fault by the Council.
51. The Council could have identified the issues with the environmental health comments earlier in the complaint process and it should have reflected in its response that there was fault by the council (as a whole), as a result of its findings.

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Agreed action

52. Within four weeks of my final decision, the Council should:
53. Apologise to Mr X for the failures in how the discharge of the noise condition application was considered and for not identifying it was at fault during the complaint process.
54. Make a payment of £300 to Mr X to recognise that the fault in the consideration of the planning application has caused uncertainty and stress about a potential for increase in noise from motorway traffic.
55. Review the handling of Mr X’s complaint and how it carries out complaint investigations. It should ensure its investigations at all stages consider the councils actions as a whole, and not solely whether an individual department acted appropriately.
56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman