Summary: Mr X complains about the Council’s handling of his neighbour’s planning application to install an air conditioning heat exchange unit. We do not find fault in the Council’s decision-making.

The complaint

1. The complainant, who I shall call Mr X, complains about the Council’s handling of his neighbour’s planning application to install an air conditioning heat exchange unit (HEU).
2. More specifically, Mr X says the Council:
1. failed to send the acoustic expert report he provided to the Environmental Health Department before granting planning permission;
2. retrospectively used an obscure power in its Constitution to allow the decision to be made under delegated authority instead of by the planning committee. But, Mr X said the Council incorrectly used a different power based on only one objection being received in time to make the decision; and,
3. failed to follow its complaints procedure.
3. Mr X says he paid £960 for his expert's report. He says he has been caused distress, frustration and uncertainty about whether permission might otherwise have been refused (or at least granted with stronger conditions) if his expert report had been considered. Mr X says he was put to time and trouble complaining and raising issues.

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What I have and have not investigated

4. Mr X is concerned that, when the HEU is fully installed, his quiet enjoyment of his home will be affected and he will need to go to further time and trouble proving the equipment is too noisy. I will not investigate this part of Mr X’s complaint because it concerns events that have not occurred. If Mr X finds the HEU to be noisy, I consider it reasonable to expect Mr X to first raise this with the Council so it has the opportunity to investigate and reply. (Local Government Act 1974, section 26(5))

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

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

7. 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

8. I spoke with Mr X about his complaint. I considered the documents Mr X sent to me alongside the documents available on the Council’s website (including its Constitution) and online planning portal (including the Case Officer’s Report, planning permission decision by the Council and Mr X’s expert acoustic report).
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.

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What I found

Planning permission

10. Planning permission is required for the development of land (including its material change of use).
11. Planning permission may be granted subject to conditions relating to the development and use of land.
12. Planning permission may be granted subject to a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.

Decision making and material considerations

13. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
14. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
15. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
16. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Decision making process & delegation

17. Councils delegate most planning decisions to their officers. The types of decisions delegated to officers are normally set out in a council’s constitution or scheme of delegation.

The Council’s Constitution and scheme of delegation

18. The Council’s scheme of delegation within its Constitution says the Director of the Council’s Planning Department can make planning decisions where the application does not receive “three or more valid planning objections … by the end of the relevant statutory consultation period which cannot be overcome by conditions.”

What happened

19. Mr X’s neighbour applied for planning permission to install an air conditioning heat exchange unit (HEU) on the rear of their flat roof.
20. Mr X objected to the application. He commissioned an expert opinion which challenged the data used by the applicant’s expert.
21. The Council received more than three objections to the application.
22. In the case of the neighbour’s planning application for an HEU, the Council consulted its Environmental Health Team. The Case Officer’s report of the application shows the report commissioned by Mr X and his objections were considered.
23. Having considered the objections received and the information provided by the applicant, the Council decided the objections could be overcome by planning conditions.
24. The Council approved the application with conditions to ensure the noise emitted by the HEU did not exceed a specific level and that it must be regularly serviced. If the applicant fails to comply with the conditions the Council will instruct the applicant to switch it off and not be used again until it complies. It also required the applicant to install anti vibration mounts to prevent transmission of vibration noise.

Analysis – was there fault by the Council causing injustice?

Mr X’s acoustic expert report

25. Mr X complains the Council failed to send the acoustic expert report he provided to the Environmental Health Department before granting planning permission. Mr X says this showed the installation would not meet the Council’s minimum noise level criteria in the Council’s Noise Supplementary Planning Document and provided a suggested condition to address Mr X’s concerns (part a of the complaint).
26. One of Mr X’s objection was about possible noise from the unit and his expert report called into question the validity of the applicant’s technical expert. It is not for the Ombudsman to challenge the information provided by the applicant’s expert report.
27. The Case Officer’s report explains why the Council considers the application and conditions can overcome the objections from Mr X, his expert’s opinion and objections from others. So, while the Council does not agree with the objections, it has not ignored them.
28. The Case Officer’s report shows the Officer considered Mr X’s acoustic expert report alongside his objections and the applicant’s expert report. The report shows the Council consulted its Environmental Health Team about the application, which is in line with its Noise Supplementary Planning Document. But, the Director of Environmental Health confirmed that the acoustic report provided by the applicant was satisfactory and complied with the Council’s policies and planning guidance. It is clear that the Case Officer’s recommendation to approve the planning application, subject to conditions, was made after considering the Director of Environmental Health’s advice. This was a decision the Council was entitled to make. I do not find it at fault.
29. Mr X said a Senior Officer in the Environmental Health Department told him on 27 July 2022 that his acoustic expert report was not sent to Department before permission was granted. He says he has been caused distress, frustration and uncertainty about whether permission might otherwise have been refused (or at least granted with stronger conditions) if his expert report had been considered.
30. But, I am satisfied the Council has suitably addressed this complaint in its email to Mr X of 17 February 2022 and later stage one complaint response. The Council accepted that there could have been greater explanation in the Case Officer’s report about why the applicant’s report and associated conditions overcame the points raised in Mr X’s expert report. The Council said it would make sure planning officers kept this in mind in future reports. It is positive that the Council has taken these steps following Mr X’s complaint.
31. I do not find the Council’s brief explanation in the Case Officer’s report amounts to fault causing significant injustice to Mr X. The Case Officer’s report provides a sufficiently clear consideration of the objections received so that this could be readily understood by the report’s intended audience, which is the parties to the application (the Council and the applicant) who are well versed of the issues.
32. The Council said, after consulting the Environmental Health Officer again, the Officer gave further details about why the Officer was happy to approve the proposals despite the recommendations in Mr X’s report. The Officer said the difference in expert opinion did not give cause for concern and would not change the original decision made. This was because the Officer was satisfied the proposals would be able to stay within the appropriate noise limits. In any case, if the HEU was unable to stay within the set limits, the Officer said that the planning permission was made with a suitable condition that would overcome this because this would require the applicant to stop using the unit and turn it off until measures were in place to bring the unit within the set limits.
33. I do not find fault in the Council’s decision-making. Regarding the differing reports, it is clear the Environmental Health Team considered the applicant’s report when deciding it was satisfactory and in line with the expectations set out in the Council’s Noise Supplementary Planning Document. This is in line with the Noise Supplementary Planning Document, which focuses on what information the applicant’s expert report must provide to be considered sufficient and it is the applicant’s report that the Environmental Health Team should be clearly consulted on. Equally, the Council has provided clear reasons to Mr X about how it reached its decision and why, even if the Environmental Health Team had not seen his expert report in full, this would not have changed the outcome. I do not find fault in the Council’s decision-making. Mr X disagrees with the Council’s decision and how it has weighed up the two expert reports, but this is not evidence of fault.
34. In comments about my draft decision, Mr X complained that a previous application for permission to install an HEU at this property had been dealt with by the imposition of a stronger, specific condition relating to noise mitigation measures. He said it was entirely reasonable to expect that a similar approach would be taken by the Council in this case. But, this does not affect my above findings. In its stage two complaint response, the Council suitably explained that it must assess each planning application on its own merits. The Council explained that the location of the two HEUs in relation to Mr X’s property were different. It said the Environmental Health Officer did not consider it necessary to recommend the same noise mitigation measures as the previous application because the Officer was satisfied the other noise related conditions concerning noise level limits and anti-vibration mounts were sufficient to avoid any noise disturbance to those living nearby. This was a decision the Council was allowed to make. It has provided Mr X with clear reasons for the difference in approach. I do not find it at fault.

Decision made by the Council under its scheme of delegation

35. Mr X complains the Council retrospectively used an obscure power in its Constitution to allow the decision to be made under delegated authority instead of by the planning committee. This power allows the application to be decided by the Director of the Planning Department if more than three objections are received and these objections can be overcome by conditions. But, Mr X said the Council originally incorrectly used its delegated powers to make the decision based on only one objection being received in time to make the decision (part b of the complaint).
36. In the Council’s stage two complaint response, the Council accepted a Planning Officer incorrectly told Mr X that the objections received were late. The Planning Officer told Mr X that, if the objections had not been considered as late, then the decision should have been made by the Council’s Planning Committee. The Council apologised for the confusion and frustration caused.
37. I do not find this administrative error amounts to fault causing Mr X significant injustice.
38. Despite the incorrect information provided by the Planning Officer, and the fact the Case Officer’s report incorrectly stated “three [objections were] received after the consultation period ended”, I am not persuaded this meant the decision made by the Council did not comply with its scheme of delegation. The objections received were, nevertheless, considered and responded to in the Case Officer’s report. As explained above, the Case Officer’s report explains why the Council considers the application and conditions can overcome the objections from Mr X, his expert’s opinion and objections from others. This is in line with the Council’s scheme of delegation, which the Council confirmed in its Stage Two complaint response when its Director of the Planning Department considered again how the decision was made. The scheme of delegation allows the application to be decided by the Director of the Planning Department if more than three objections are received and these objections can be overcome by conditions. The Council was, therefore, entitled not to refer the application to the Planning Committee. This is clearly set out in the Council’s scheme of delegation and is the key document I have considered in deciding the Council’s decision was made without fault.
39. In the Council’s stage two complaint response, it accepted that the wording on its Planning and Place webpages did not exactly mirror the scheme of delegation. But, it explained to Mr X that these pages were only intended to provide a brief summary of the delegated powers available. While I accept the wording on the webpages could be clearer, I do not find this amounts to fault causing Mr X significant injustice. The wording of these pages does not override the Council’s published scheme of delegation, which I have found the Council has acted in accordance with.

The Council’s handling of Mr X’s complaint

40. Mr X complains the Council failed to follow its complaints procedure. He says the stage one complaint response was from an Officer previously involved in responding to his questions about his complaint (part c of the complaint).
41. In the Council’s stage two complaint response, the Council confirmed Mr X’s stage one complaint response came from a Team Leader, which is in line with its complaints procedure, with oversight from the Team Leader’s Head of Department.
42. I do not find the Council at fault. The Council considered the Team Leader was best placed to respond to the complaint. The fact the Team Leader had previous knowledge of the case does not mean they were excluded from responding to the complaint. The complaint response addresses each of Mr X’s concerns and explains the Council’s rationale, so I have not found evidence of fault in the way the complaint was investigated. I also note the Council ensured a more senior officer was happy with the Team Leader’s response before Mr X received this.

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Final decision

43. I have completed my investigation.
44. I have decided not to uphold Mr X’s complaint. This is because I have not seen evidence of fault by the Council causing Mr X significant injustice.

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Investigator's decision on behalf of the Ombudsman