Summary: There was fault by the Council. The planning report for a planning application for a petrol filling station failed to record consideration of the noise impact and hours of operation. On the balance of probabilities, this fault has not affected the outcome of the planning application but has caused distress and uncertainty to Mr X. An apology and symbolic payment remedies the injustice caused.

The complaint

1. The complainant, Mr X, complains the Council did not tell residents that the use of the petrol station would be 24 hour use rather than the hours in the planning application when consulting residents.

2. Mr X says the planning officer failed to consider the operating hours of a petrol station in the delegated powers planning report which has meant he is woken several times a night from customers engines, beeping horns, loud music and loud communications with others. Mr X says that noise from the staff PA system can be heard in his house.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(1), as amended)

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What I have and have not investigated

6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. Mr X only became aware of the change in hours of use in February 2025 so I have exercised discretion to investigate the planning decision of July 2023 which gave the permission.

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How I considered this complaint

8. I considered evidence provided by Mr X and the Council, the information available on the Council's planning website, as well as relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

10. Mr X lives near to an empty site which was a petrol station until 2016. The Council says the hours of use of the site were unrestricted. Mr X says the petrol station was previously open from 6am to 9pm.
11. The Council consulted Mr X on a planning application for ‘construction of replacement petrol filling station and local convenience store with associated access, car parking and landscaping’. The applicant wrote on the planning application that the hours of use would be from 6am to 11pm daily.
12. Mr X did not object to the proposal. He says this was because the hours of use were from 6am to 11pm on the application.
13. The planning officer wrote a delegated powers report. This did not mention the hours of use. The report said ‘whilst residents have now offered their support to the proposals, strong concerns and objections were initially raised over the potential impacts of noise from site activities…..It is noted that the nature of a petrol filling station with associated convenience store is likely to lead to frequent movements of vehicles, with most users of the sites likely to be there for only a few minutes whilst getting fuel or some groceries. It is recognised that such movements can be potentially noisy of disruptive to the amenities of neighbouring residential units. To alleviate potential harm acoustic fencing is proposed and the air and water bay has been moved from the boundary’. The report also said ‘deliveries to the site will be conditioned to take place between 0600 and 2300, which will help to ensure that residential amenity is reasonably safeguarded’.
14. The planning officer decided ‘although there is likely to be some impacts on the residents from activities at the site, the overall impact of the proposal is considered not to be significantly harmful, particularly when taking into account the established use of the site’.
15. The planning application was approved under delegated powers in 2023. Deliveries were restricted by a condition to between 6am until 11pm, but no restriction was placed on the hours of use.
16. The site opened in early 2025. Mr X says he became aware at this point the site was used 24 hours a day.
17. Mr X complained to the Ombudsman. He has explained that he did not object to the application, as the hours of use were 6am to 11pm. He says the Council did not make him aware that the hours of use could be different to those on the application.
18. The Council has said that unless there is a condition restricting the hours of use, the development can be used outside the hours mentioned on the application documents. So, the site has unrestricted use, apart from deliveries.

Planning application consultation

19. Mr X has explained that residents were consulted on a planning application with hours of use of 6am to 11pm. He had no objection to this. However, he was not made aware there was the possibility of 24 hour use, so did not comment on this.
20. In response to my enquiries, the Council has said ‘at the time of consultation, the Council would not have been able to tell residents that the hours of use would not be those in the application form, as this would suggest pre-determination. The Council can only tell consulted residents that an application has been received and that the submitted information can be viewed on the Council’s website for consideration. It should be noted that any part of the development may or may not be altered or removed from the scheme during the application process, and it would be for the Planning Officer to take a view as to whether residents should be re-consulted. Officers, therefore, cannot notify residents in the consultation correspondence of the hours of use as these would be subject to change. The matter at hand is that the scheme was not controlled to the level which the complainant would have wished for. It is noted the complainant did not comment on the planning application to indicate no objection subject to restriction of hours or similar. The Council considers a significant number of considerations in dealing with an application and would not consult on all and every change and would not typically consult specifically on a decision to not control a specific aspect of the proposals via condition’.
21. I understand Mr X’s concerns on this point and that he would not have known the Council would decide not to restrict the hours of use. However, I accept that the legal requirement is for the Council to consult on the planning application it received and it did so. So, I find no fault on this point. I, however, have sympathy for Mr X’s view that he did not know that needed to mention that he no objection subject to a restriction in hours.

Consideration of the planning application in the planning report

22. Mr X complains the Council failed to consider the operating hours of a petrol station in the delegated powers planning report.
23. The purpose of the case officer’s report is not only help the council decide on the application. It is also 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.
24. 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 on 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.

25. The Council has said ‘although there is no specific analysis or reasoning on the hours of use, the report should be read as a whole. The report is unable to provide detailed analysis of all matters, but this does not mean that the issues were not considered. The Planning Officer was clearly perceptive of the potential impacts of noise from the proposed development as the report references the conclusions and recommendations of the Environmental Health service that the supporting noise assessment should be conditioned to safeguard the amenities of local residents’.
26. In response to my enquiries, asking for evidence the planning officer considered the issue of opening hours, the Council said there is ‘no evidence beyond the submitted consultation response. No reports of noise complaints relating to site were referenced in the consultation response and there were no noise objections or opening hours objections raised following the neighbour consultations. A condition restricting the hours of use was considered unnecessary……. In view of there being no noise related objections from the neighbour consultation exercise, the extant use of the site being a petrol filling station and the response from the Council’s Environmental Health Team, it was considered there was no need to control opening hours’.
27. My view is that there is fault, as the planning officers report contains no information to demonstrate how the planning officer considered the impact of the hours of opening of the petrol station on local residents. Given the planning officers report mentions the site would impact on residents, my view is the report should have included consideration of the impact of allowing 24 hour use. While I note the site previously had unrestricted use, the report does not consider that the previous business on the site did not operate during the night.
28. I now have to consider what injustice this fault has caused to Mr X.
29. It is impossible for me to tell if Mr X had been aware that there could be unrestricted use and he objected on that basis, whether the outcome would have been different. It is also impossible for me to tell if the planning officer properly considered the hours of use, given the lack of evidence. On the balance of probabilities, my conclusion is that it is unlikely the outcome of the planning application would have been different if the planning report had included a more detailed analysis of the noise impact. Given there was a petrol station on the site before, with unrestricted hours of use it does seem unlikely that the planning officer would have conditioned the hours of use if a full analysis of the impact had been made in the planning report.
30. As I cannot conclude with any confidence or certainty that a different outcome would have resulted if the consideration of the hours of use had been properly detailed, I consider the injustice to Mr X is the uncertainty and distress of never knowing if the outcome could have been different. So, I recommend the Council apologies and makes a symbolic payment to Mr X of £500.

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Action

31. Within one month of the date of the decision on this complaint the Council should:
• Apologise to Mr X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr X £500.
32. The Council should provide us with evidence it has complied with the above actions.

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Decision

33. I have completed my investigation and find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman