Summary: Mr B complained the Council wrongly granted planning permission for a development which breaches its policy and, in doing so, failed to consider his objections. Mr B says as a result he experiences noise nuisance. I found no fault in how the Council considered the application.

The complaint

1. The complainant, Mr B, complained in granting planning permission the Council failed to:
• take into account the impact on residents, Government guidance on noise pollution or consider their objections;
• follow its policy on development in town centre locations.
2. Mr B says because of the Council’s actions he now suffers noise nuisance.

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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. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the organisation 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

Guidance and policy

7. The Council’s policy CEN7 says there is a clear presumption in favour of focusing development in centres. Proposals for out-of-centre development have to demonstrate that development cannot be provided in centre or at edge of centre locations.
8. The National Planning Policy Framework (NPPF) says planning policies and decisions should contribute to and enhance the natural and local environment by various measures, including:
• preventing new and existing development from contributing to, being put at unacceptable risk from, or being adversely affected by, unacceptable levels of soil, air, water or noise pollution or land instability.
9. The NPPF says local planning authorities should consider whether otherwise unacceptable development could be made acceptable through conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.
10. The ProPG: gym acoustics guidance was published in March 2023. This is guidance for practitioners, developers, operators and local authorities for assessing gym acoustics affecting existing noise sensitive receptors.

What happened

11. Mr B lives next to an industrial unit which is close to his property and garden. The occupier of the unit began using it as a gym without planning permission. That involved playing music throughout the day which Mr B says he could hear within his property. Mr B put in a complaint.
12. The operator of the gym put in a retrospective planning application, which Mr B objected to. The Council’s environmental health team wrote to the operator of the gym. Environmental health said noise from the gym could be suitably mitigated but it needed to be properly assessed with a noise impact assessment. Environmental health asked the operator of the business to consult it again when it had produced a noise impact assessment. Environmental health then assessed the noise impact assessment the applicant produced and said it did not object to the application provided the applicant took measures to address noise. That included ensuring the doors close to Mr B’s property remained closed except for access and egress.
13. The Council granted planning permission for the development with conditions attached. One condition required the applicant to provide the Council with a noise management plan. The Council’s environmental health officers have since considered the noise management plan and are happy with it.
14. Mr B says because the applicant now keeps the doors to the unit shut he cannot hear music within his property. Mr B says though he can still hear music in the garden. Mr B does not believe the Council should have granted planning permission given the development is in an out of centre location and because he can still hear noise in his garden.
15. The Council says since discharging the condition for the noise management plan it has not received any further complaints of noise from neighbours.

Analysis

16. Mr B says the Council failed to consider the impact the development would have on him, Government guidance on noise pollution or his objections. I am satisfied the report for the planning application set out the objections the Council received and the relevant policies and Government guidance. It is clear Mr B’s main concern here was with noise from the site. I am satisfied as part of the assessment of the planning application environmental health officers visited the site and considered the noise impact assessment the applicant provided. I understand why Mr B would be concerned about the impact of noise given the noise impact assessment made clear the noise levels from music at the gym exceeded the target levels.
17. I am satisfied though environmental health officers considered that report and were satisfied noise could be mitigated under a noise management plan. Environmental health officers were clear they did not have any objections to the development provided the Council imposed a condition limiting the hours the gym could open and provided the applicant put in a noise management plan to set out how it would manage noise from the site. The report for the planning application then included the points the environmental health officers made.
18. Given all of that I could not say the Council failed to consider how the development would impact on neighbouring properties. I am also satisfied the Council imposed a condition on the permission requiring the applicant to put in a noise management plan and that environmental health officers are satisfied with that plan. I appreciate that is not the outcome Mr B was looking for. However, as I have made clear, it is not my role to comment on the merits of a decision reached without fault. I have found no evidence of fault here.
19. Mr B says an environmental health officer told him the noise levels would not interfere with his use of his garden. Mr B says he does not understand why officers said that as he experiences noise in the garden. Having considered the documentary evidence I have not identified any comments from environmental health about noise in the garden.
20. In any event, the grant of planning permission does not provide the applicant with permission to create a noise nuisance. If Mr B is experiencing levels of noise which he considers unacceptable he can make a complaint to the Council. Environmental health officers will then consider whether the development is complying with the noise management plan.
21. Mr B says notwithstanding his concerns about the impact of noise from the gym the Council should not have granted planning permission. Mr B says the gym is not in a town centre or edge of town centre location and is therefore not in a suitable position. Mr B also says the Council failed to follow its policy because the applicant has not demonstrated the gym could not be provided in a town centre or edge of town centre location.
22. The evidence I have seen satisfies me the report for the planning application went into detail about what both the NPPF and the Council's policy said in relation to the location of the development. The report set out the tests required and the fact the applicant had not provided evidence to show there were no other suitable sites within the nearby local centres. The report recorded though that officers were satisfied, on balance, the gym was in a suitable location in this case because of the following factors:
• the gym would not increase the floor space;
• the gym would bring a vacant space back into active use which would have positive impacts on the local area;
• the gym would not result in any significant impact on the viability or vitality of the nearby centres;
• the proposal would play a small part in providing a healthy borough;
• a modern gymnasium requires a floor plan different to that offered by many of the traditional retail units within the local centres with officers recording they did not consider it likely the needs of the business could be accommodated by any of the vacant premises within them.
23. I recognise Mr B is likely to strongly disagree with that decision. However, as I said in paragraph 3, it is not my role to comment on the merits of an officer's judgement unless there is evidence of fault in how that judgement has been reached. As I am satisfied the report for the planning application set out why officers considered the development acceptable despite what policy CEN 7 said I have no grounds to criticise it.
24. In reaching that view I understand Mr B’s concerns given the applicant did not provide any evidence the gym could not be provided in a town centre or edge of centre location. However, it is not fault for officers to rely on their own knowledge of the area when considering an application. As I am satisfied the report clearly set out officer’s views taking into account the policy requirements of CEN 7 I have no grounds to criticise it.

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Final decision

25. I find no fault.

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Investigator's decision on behalf of the Ombudsman