The Ombudsman's final decision
Summary: We will not investigate this complaint about the way the Council dealt with a planning application for a site next to the complainant’s home. Nor will we investigate their complaints about the Council’s consideration of their reports of noise nuisance from the site. There is not enough evidence of fault in the Council’s actions to justify an investigation.
The complaint
Mrs X complained the Council failed: to tell her that her home was a key point of interest on a planning application for the supermarket goods yard next to her home to question why a noise assessment was carried out 150 metres away to notify neighbour or consider their comments to erect the site notice where residents and pedestrians would see it; and to consider the reduce space for Heavy Goods Vehicle (HGV) parking She says the Council’s approval of the planning application has caused her and her family to suffer from: excessive noise, including during the night from HGV's idling outside her home, unloading with forklift trucks: and increased usage of HGV's especially at night.
Mrs X also says they also suffered from eight weeks of noise during the construction phase.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Mrs X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The planning application Planning authorities must publicise all planning applications. Depending on the nature of the development, publication may be by newspaper advertisement and / or site notice and / or neighbour notification (The Town and Country Planning (General Development Procedure) Order 1995.) The notice will invite ‘representations’ for or against the application and explain how those representations may be made. The opportunity to make representations is not the same as being consulted. The authority must consider all material representations it receives but officers will not enter into a dialogue with members of the public who have objected to a planning application The Council confirms a site notice was erected at the main entrance to the supermarket to ensure the maximum number of people would see it, and a notice was placed in the local paper. I understand Mrs X disagrees with the placement of the site notice; however, the Council met the statutory requirements for publicising the application.
The planning officer prepared a report on the scheme to install new and replacement plant in the supermarket service yard which is next to Mrs X’s home. The report shows the Council did not receive any objections to the proposal from the public or parish council. The local Highways Authority (HA) is satisfied the scheme would not have a significant detrimental impact on the highways.
The Council also consulted its Environmental Health team. They did not object to the scheme subject to noise attenuation measures being secured by condition.
Having considered the application, the Council granted planning permission with a condition to implement noise mitigation measures, and to continue to maintain them.
The issue of the noise and impact on the highway was considered by the planning officer. Whether this is acceptable is a matter largely of judgement, and the Ombudsman cannot substitute their opinion for that of the planning officer and the senior officer who approved the application under delegated authority. The role of the planning officer is to reach a judgement about whether a development is acceptable after consideration of local and national planning policies; comments from statutory consultees and objections/representations from people affected by the decision. The evidence strongly suggests that this is what has happened in this case and therefore the Ombudsman would be unlikely to find that there had been fault if he investigated.
Noise nuisance Under the Environmental Protection Act 1990, councils have a duty to take such steps as are ‘reasonably practicable’ to investigate complaints about noise or other ‘statutory nuisance’.
There is no set level at which noise becomes a statutory nuisance and is dependent of factors like its timing, frequency, the nature of the area and what could reasonably be expected there. The decision on whether noise amounts to a nuisance is one of professional judgement for officers, based on objective evidence. A council officer cannot take action simply because a complainant says they are suffering from a nuisance.
Mrs X complained to the Council about noise from the construction work, the new plant machinery and HGVs idling while parked near her home.
The Council’s environmental protection team opened an investigation and: asked Mrs X to keep diary sheets to record when the noises occurred visited the site multiple times, including at night; and visited Mrs X’s home at night The Council says its officers liaised with the supermarket management. It confirms the acoustical solutions as referred to in the planning permission have now been installed. It has also advised Mrs X that any concerns about vehicles idling or parking in the road where she lives is a matter for the local highway authority or the police.
I understand that Mrs X has a very strong view about the noise that has affected her family. However, the Council has taken appropriate action to respond to her reports. It carried out site investigations, considered the evidence she provided and spoke to supermarket management. Its view was that, while there was noise, it did not meet the legal thresholds to be considered a statutory nuisance.
The Ombudsman cannot find fault where a council has taken appropriate steps to investigate noise nuisance. Having looked at the information provided by the Council; my decision is it has taken sufficient measures to investigate Mrs X’s complaints.
Final decision
We will not investigate Mrs X’s complaint because there is not enough evidence of fault in the Council’s consideration of the planning application and her reports of noise nuisance.
Investigator's decision on behalf of the Ombudsman