Summary: Mr X complained the Council failed to ensure adequate noise protection measures for his home when it granted planning permission. We found no fault in the way the Council made its planning decision.

The complaint

1. Mr X complained the Council failed to ensure his home was protected from noise from a nearby road.
2. Mr X said his amenity is affected by noise and vibration.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 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 reports for the Council’s planning committee.
6. I gave the Council and Mr X an opportunity to comment on my draft decision and took account of the comments I received.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
12. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

What happened

13. Mr X moved into a house that had been built next to a road. After moving in, he realised that noise from the road caused considerable disturbance to his enjoyment of his home. He told me that he made improvements inside his home to reduce noise by fitting shutters and heavy curtains, but noise was still an issue during the day, particularly in his garden. Mr X said that because the road is higher than his home, a boundary fence would serve little purpose, unless it was very high.
14. Mr X believes the Council should have imposed planning conditions to require noise mitigation measures, such as special glazing and noise barriers between the road and the house. Mr X has seen other houses near his home which were subject to stricter planning controls and do have better noise mitigation. He does not understand why the Council did not insist upon similar measures for his home before it granted planning permission.
15. The Council said its environmental health officers were consulted before the planning decision was made, but they only recommended a condition to ensure the site was not contaminated and so fit for habitation.
16. Before a decision was made, the Council’s planning case officer wrote reports for the planning committee to consider, which included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees, including those from environmental health officers;
• details of relevant planning policy and guidance;
• an appraisal of the main planning considerations, including design and character issues, the principle of development, the impact on neighbouring amenity and highway access; and
• the officer’s recommendation to approve the application, subject to planning conditions.
17. The Council considered the reports along with the plans and other background information before approving the application subject to recommended conditions.

Mr X’s response to my draft decision

18. Mr X responded to an earlier draft of this decision. He said:
• The Council should have carried out its own reports, including one that assessed noise impacts. A brief response from an environmental health officer was not enough to show proper process was followed.
• The Council was wrong to assume there would be no noise problem from a road simply because it was in a residential area with restricted speed limits.
• The Council did not adhere to national or local policies relating to noise and residential amenity.
• ‘Maladministration’ should include the lack of care, judgment, or honesty in the management of something.

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 in the decision-making process that causes a significant injustice to the individual complainant.
20. Before a decision was made, the Council considered the plans, comments from consultees and relevant policy. It followed the decision-making process we expect and so I find no fault.
21. Mr X believes the Council should have exercised its judgement differently and asserted control to protect him from road noise, as it has done elsewhere. It is up to the Council to decide whether and how it should use its planning powers, and we cannot comment on the judgements it makes as a planning authority in the absence of fault in process. Because of this, we are not able to compare different judgements made on different applications, in different locations by different officers and members, and offer opinions on which judgement is right or wrong.
22. In response to the comments Mr X made on the earlier draft of this decision, my views are as follows:
• Planning policy and noise - Local or national planning policies recommend that planning policies and decisions should consider noise impacts and contribute to noise reduction where necessary. However, there is no obligation to require detailed noise assessments in all cases. It would be for the planning authority to decide whether further information should be required. Mr X believes the Council should have required its own assessment. Councils normally require information from applicants, who can employ qualified experts to support their proposals. Council planning authorities often share application details and expert reports with colleagues or other public bodies who have relevant expertise. The planners can take account of the advice they receive before making their decision. This is normal practice.
• Assumption because of location, speed limit etc – Councils are expected to take account of the environment surrounding an application site. Councils must use foresight when considering what problems there might be caused by proposals. We cannot apply hindsight to judge them when problems emerge that were not identified during the planning process, unless we can show that no reasonable authority faced with the same proposal, policies and other circumstances could possibly reach the same conclusion. I have not found that to be the case here.
• The meaning of ‘maladministration’ – The definition Mr X sent us came from a dictionary. The term, which we normally describe as ‘fault’ is not defined in law. It is up to the Ombudsman to decide whether a particular set of circumstances amounts to fault, but generally our focus is on the administrative process by which a decision was made. I have considered what has happened here and found no fault.

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Final decision

23. I completed my investigation as I have found no fault in the way the Council made its planning decision.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman