Cheshire East Council (14 005 670)

Category : Transport and highways > Highway repair and maintenance

Decision : Not upheld

Decision date : 27 Mar 2015

The Ombudsman's final decision:

Summary: There was no fault in the Council’s planning enforcement, as there was no planning condition about an acoustic barrier to enforce. The was also no fault in the Council’s decision not to resurface one side of the road with a low noise surface as it was aware of all the facts when it made its decision. The complaints are not upheld.

The complaint

  1. The complainant, whom I shall refer to as Mr S, complains the Council has not taken enforcement action on a planning condition requiring the construction of an acoustic barrier. Mr S also complains the Council has not resurfaced the eastbound carriageway of an A road with a low noise surface.
  2. Mr S complains about increased noise and vibration levels at his home. He would like an acoustic barrier installed and the road resurfaced.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If there has been fault, the Ombudsman considers whether it has caused an injustice and if it has, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
  2. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  3. If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))

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How I considered this complaint

  1. I read the papers sent by Mr S and discussed the complaint with him.
  2. I considered the Council’s comments about the complaint and the supporting documents it provided.

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What I found

  1. Mr S’s house was built in 2004. He bought it in April 2011. He lives about 100 yards from a dual carriageway ‘A’ road. The road level is higher than the houses. Mr S’s house does not back onto the road, there are other houses between.
  2. The 2003 planning permission for the housing development included planning conditions. Condition 12 said that to protect the houses from traffic noise, the development should incorporate noise mitigation measures listed in a report.
  3. The report notes that external to the site, as part of building the new bypass, the highway authority will build an earth screening bund with a close boarded fence on top. This is separate to the housing development.
  4. The report recommended sound insulation measures for some of the new houses. The consultant did not recommend measures for Mr S’s house (specialist glazing).
  5. The report also recommended a 2 metre high fence behind houses whose rear gardens were not shielded from noise by brick buildings. The report did not recommend a 2 metre high fence for Mr S’s house.
  6. Condition 10 said that boundary treatments should be in place before occupation of the houses.
  7. The Council resurfaced the A road in the summer of 2013.
  8. Mr S complained to the Council in October 2013 that the new road surface was noisier and that raised yellow rumble strips caused increased noise and vibration.
  9. The Council removed the yellow rumble strips and the westbound carriageway had a low noise surface installed. The Council top-dressed the eastbound carriageway.
  10. Mr S complains that an acoustic fence required by the planning permission has not been installed and the eastbound carriageway has not had a low noise surface installed.

My analysis

Acoustic barrier

  1. There is no planning condition that requires an acoustic barrier. The noise report refers to an earth bund with a fence on top which the highways agency built. This was separate to the housing development.
  2. The noise report also recommended a two metre high fence around some plots on the development, but Mr S’s house was not one of these plots.
  3. So, I find no fault by the Council on enforcement action as there is no planning condition requiring an acoustic barrier.
  4. The Council has explained that Mr S’s complaint has brought to its attention that the fence was erected on Highways Agency land. This piece of land should have been given to Cheshire East highways but this hasn’t happened. The Council has said that it is looking into this issue at the moment with the Highways Agency.
  5. As the Council is investigating the issue of land ownership, it is not a matter the Ombudsman can investigate at present. I will ask the Council to update Mr S once the matter is concluded, although I recognise that this could take years to resolve if there is a legal dispute.

Road surface

  1. When residents told the Council of the problem, the eastbound carriageway had already been top-dressed. In response to the complaint, the Council did resurface the westbound carriageway with a low noise surface as it could join this on to planned works.
  2. Mr S wants the Council to resurface the eastbound carriageway with a low noise surface now. The Council has said that it resurfaced the road under its duty to maintain the road network. In this case the Council considered surface dressing treatment was the appropriate treatment to maintain this section of road, extending the life of the road significantly (in order of 8 years). However, in future when undertaking major resurfacing works the appropriateness of noise reduction surfacing will be re-assessed.
  3. The Council accepts the top-dressed section of road is noisier than before. However, there are no standard noise levels that say whether the noise outside a dwelling is acceptable or not. The Council cannot compare to the levels in the original planning permission noise report, as these were predicted noise levels and traffic levels will have changed since then.
  4. The Council has clearly responded to resident’s complaints by removing the yellow strips and using a low-noise surface on one side of the carriageway. It has also said that it will reassess the situation on the eastbound carriageway when it is next due for maintenance. This seems to me to be a reasonable response to resident’s complaints.
  5. The Ombudsman’s role is to investigate complaints about administrative fault by Councils. The Council responded to resident’s complaints by investigating the noise issues and then carrying out some remedial action. I appreciate that Mr S wanted more re-surfacing to be carried out but the Council is entitled to make a decision on the extent of the works to be completed. The fact that it has completed some work does not obligate it to undertake further re-surfacing as Mr S wants.
  6. There is no obligation on the Council to take noise levels into account when resurfacing the road. As the Council made its decision not to resurface the westbound carriageway after listening to residents complaints, completing some work and assessing noise levels, I find no evidence of fault.

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Final decision

  1. I have completed my investigation as I have found no evidence of fault by the Council. This complaint is not upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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