Summary: Ms X complained the Council did not properly consider noise levels, safety, and traffic when deciding to grant planning permission for the location of residential development she currently lives in. We did not find fault with the Council as it has sufficiently evidenced it considered these matters before approving the application.

The complaint

1. Ms X moved into her current home after accepting an offer from the Council via its housing register. She complains about the Council’s decision to allow planning permission for the developer to build the housing estate she is in so close to a major busy road. This results in excessive noise and vibration from passing traffic, mainly from lorries. She says the Council did not adequately consider these issues for this development, which significantly affects her and her child’s amenity and sleep.

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The Ombudsman’s role and powers

2. 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)
3. 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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What I have and have not investigated

4. This decision statement considers matters in relation to Ms X’s complaint under the Planning category.
5. As part of the complaint, after Ms X’s raised concerns after moving in, she complained about the Council’s handling of her housing register application and her priority banding after this.
6. We have considered this under a separate, linked, complaint under the Housing category. While there is some overlap with Ms X’s complaint, we decided the matters are separable enough to issue a decision under each category. Therefore, all Housing elements to Ms X's complaint have been investigated and considered in a separate decision statement.

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How I considered this complaint

7. I wrote to Ms X about the complaint and considered her views.
8. I made enquiries of the Council and considered its written responses and information it provided.
9. Ms 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

Law and administrative background

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.

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. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Background

Outline planning application

16. Several years ago, a developer submitted an outline planning application to the Council for the residential development Ms X currently lives in. It proposed to build a number of houses on an area of land next to a stretch of A road which led to a busy dual carriageway.
17. An external Noise Assessment Report was submitted as part of this to inform the application and design for the proposed development. It made recommendations for appropriate and achievable mitigation measures against the road traffic noise. With these in place, the report said the proposed development would result in acceptable internal and external noise levels in accordance with guidance.
18. The Council granted permission, subject to conditions. The officer report considered the amenities of future occupiers of the site, the Noise Assessment Report, and noted the close proximity of the site with the A road. It added “Condition 1” to the decision notice. This required any subsequent reserved matters applications to have a Noise Mitigation Scheme to provide the necessary mitigation measures to ensure noise within the proposed properties did not exceed certain levels.

Reserved matters application

19. Later, the developer submitted a reserved matters application for the development, including a Noise Impact Assessment. This included the results of noise measurements taken at the site. It noted the ambient noise climate was dominated by road traffic. It proposed a sound mitigation scheme including specifications for glazing and ventilation. It said certain windows had to be closed to achieve the required acceptable noise levels and recommended habitable rooms facing the A road should be provided with a system of mechanical ventilation to prevent overheating.
20. The Council’s Environmental Health reviewed the Noise Impact Assessment and noted the new design layout of the proposed development. It found the recommended noise sound mitigation scheme acceptable. It noted whilst windows facing the road may be opened, mechanical ventilation had also been recommended so future occupants would have the choice of ventilation method.
21. The Council granted permission for the reserved matters application, subject to several conditions. The decision notice added “Condition 2”. This required the approved options identified in the Noise Impact Assessment to be installed in each property.
22. The officer report also considered objections it received about concerns of danger with the close location of the houses facing a busy A road, referring to speeding traffic and the high proportion of lorries going by. It noted these but took into account the 30mph speed limit in place, children should be adequately supervised which reduces the risk, and said the residential frontage could have an impact on driver behaviour.

Ms X’s complaint

23. In March 2023, Ms X and her child moved into her current property (in the above new build development) after she successfully bid for it via the Council’s housing register.
24. Ms X later contacted the Council as she was unhappy with the property. She said the level of noise by passing lorries (going faster than the speed limit) numerous times a day was unacceptably loud as the house was so close to a main access road. She said it was having a significant impact on her medical conditions, causing them to flare up considerably and also affected her child’s wellbeing. She said she was more sensitive to noise than others due to her medical conditions.
25. She made a formal complaint. She raised concerns about how the Council had granted planning permission for the development. In her view, it had not carried out due diligence regarding the noise levels, safety, and traffic when granting planning permission.
26. The Council formally responded to her planning concerns. It did not uphold her complaint as it was satisfied it had fully considered these issues during the planning process.
27. The Council said the enhanced glazing and mechanical ventilation was secured by condition, but it was unclear whether it had been installed. It said it was for the developer to ensure the installed glazing and ventilation were in accordance with the approved report specifications. It suggested she verify it with the developer. If there was evidence of non-compliance with this condition, it’s Planning Enforcement team could investigate.

The Council’s response to my enquiries

28. I asked the Council if and how it considered vibration impacts of road traffic and speeding lorries on residents. It said the road has a 30mph speed limit, reduced from the original national speed limit. It noted Ms X’s concerns and said enforcement of speeding traffic is not within its control and it had referred her to the police about this part.
29. I asked the Council about Condition 2. It said as it agreed the required specifications of the noise mitigation within the application, it did not need an inspection or details of installation. It was the responsibility of the developer to meet these.
30. The Council said Ms X has not provided evidence of non-compliance with the specific conditions about noise to enable it to investigate.

Analysis

31. We are not a planning appeal body. Our role is to review the process a council has followed to make its planning decision. If we consider it followed those processes correctly, we cannot question whether it was right or wrong. We look for evidence of fault causing significant injustice to the individual complainant.
32. The officer’s reports at both stages of the planning process showed their consideration of Noise Assessment Reports and concerns raised in relation to noise and safety with the location of the development. Based on these, it said steps should be taken to mitigate the impact of excess noise to the properties and accepted a recommended sound mitigation scheme. It considered these and explained why it found the proposal to be acceptable, to help protect residential amenity. It granted planning permission subject to conditions including the proposed noise mitigation measures to minimise the impact on future occupiers.
33. Therefore, I am satisfied the Council appropriately gave consideration to the matters Ms X has raised relating to noise and location of the development before it made its decision to grant approval for the development. As the Council followed the decision making process we expect, I do not find fault in the merits of its decision to approve the application. It is a decision it is entitled to make under the professional judgement of its officers.
34. I understand Ms X’s primary aim is to move from the property as soon as possible as she says she is significantly impacted. She is back on the housing register and can bid for other properties. I recognise Ms X’s distress at the noise at the property. However, on balance, so far as is relevant to this complaint, I am not able to link the way the Council made its decision to grant planning permission to the adverse effects Ms X states she currently significantly experiences.

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Final decision

35. I do not find fault with the Council’s consideration of noise, safety, and traffic with the planning application for the development Ms X currently lives in. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman