Summary: Mr X complained about the Council’s decision to change the layout of the play area near his home. He said this caused unacceptable and distressing noise levels during the evening and weekends. We found no fault in how the Council reached its decision.

The complaint

1. Mr X complains about the Council’s decision to change the layout of the play area near his home which he said has caused an increase in noise levels.
2. He complains:
• The Council has changed the play area into a Multi-Use Games Area (MUGA) which guidance states, needs a 30 metre minimum residential boundary distance.
• The MUGA goals are now closer to his property than the basketball hoops which were originally there.
• The Council did not let the public know its plans and ignored the fact local residents are mainly elderly and retired.
3. Mr X said the noise level is unacceptable and distressing, given it is mostly in the evening and weekends, and disturbing his peace and enjoyment of his garden. He would like the Council to move the boundary fence 10 metres back and the goals moved to reduce the noise levels.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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

7. I spoke with Mr X and considered information provided by Mr X and the Council.
8. Mr X and the Council had the opportunity to comment on my decision. I considered any comments before making a final decision.

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What I found

Permitted Development

9. The law says Councils can erect, construct, maintain, improve or alter any small building, works or equipment not exceeding 4 metres in height of 200 cubic metres in capacity, on land belonging to them, or maintained by them, required for the purposes of any function exercised by them on that land. (Schedule 2, Part 12, Class A of the Town and Country Planning (General Permitted Development) (England) Order 2015).

Statutory nuisances

10. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate complaints of ‘statutory noise nuisance’.

Fields in Trust

11. Fields in Trust is an independent charity. Its benchmark guidance is a reference tool for councils in the design of outdoor sport, play and informal open space. The guidance is not statutory and local assessments by councils are still needed.
12. Its document, Guidance for Outdoor Sport and Play helps to ensure the provision of outdoor sport, play and informal open space is sufficient to enable effective use; is located in an accessible location and close to homes; and of a quality to last and to encourage its continued use.
13. It recommends that Equipped and Designated play spaces are promoted in the form of:
• Local Areas for Play (LAPs) are small areas of open space specifically appointed and mainly laid out for very young children to play close to where they live.
• Locally Equipped Areas for Play (LEAPs) are areas of open space specifically appointed with features including equipment for children who are beginning to go out and play independently close to where they live.
• Neighbourhood Equipped Areas for Play (NEAPs) aimed at older children.
• Multi Use Games Areas (MUGAs) and skateboard parks.
14. Its guidance says a suitable relationship is created by using the minimum buffer zones for specific facilities. These off -set distances ensure that facilities do not enable users to overlook neighbouring properties, reducing the possibility of conflict between local residents and those at play.
15. It recommends MUGA’s have a 30-metre minimum separation between the activity zone and the boundary of the nearest house.

What happened

16. Mr X lives near to an area of land that is used for ball sports.
17. The Council said, following a complaint from the public about the condition of the local park, it started a review, including the ball sports area within it.
18. The Council decided to maximise the use of the area and moved the existing basketball posts to the south of the area and installed two new combined football goals and basketball hoops at the north of the area.
19. The repositioning of the equipment meant the new goals were now closer to Mr X’s property than the original basketball hoops were.

Mr X’s complaint

20. Mr X was unhappy with the changes to the area, and the increased noise levels from people shouting and the repeated bouncing of basketballs. He complained to the Council about this in December 2021.
21. Mr X said the Council had changed the area from a LEAP to a MUGA due to the new combined goals. He said the area had now become two ball courts and its use and resulting noise from balls and people, would increase and affect his amenity.
22. He also said the new goals were closer to his property than the previous basketball hoops and the area was not in line with the current Fields and Trust guidance for a MUGA. The guidance advises a minimum residential boundary distance of 30 metres; the distance to Mr X’s property from the boundary of the area is 20 metres.

Council Response

23. The Council replied to Mr X. It explained in summary:
• The area had always been used for ball sports and would create noise when busy. However, it provided much needed leisure and recreational amenity for a densely populated surrounding area.
• The area was never a LEAP, which is a defined play space for children, and could have been described as a MUGA for the whole time it has been used.
• Due to the densely populated local area, it was not possible to reflect the Fields in Trust guidance for buffer zones between facilities and residential properties. There is little chance of this changing, and results in the Council needing to consider setting local standards.
• The type of sport played on the area has not changed, with football now having a recessed goal rather than using the boundary fencing.
24. Mr X did not agree with the points raised in the Council’s response and asked it to escalate the complaint to stage two. He also asked the Council, as a compromise, to remove the old basketball hoops and reposition the MUGA goals to the centre of the existing marked out court.
25. The Council has provided me with copies of documents relating to its stage two investigation. This shows that following the stage 2 complaint it took the following action:
• It consulted with its Planning and Environmental Health departments.
• Planning confirmed as long as the goals were not over 4 metres, they would fall under permitted development. Permitted development does not require any planning permission.
• Environmental Health said it would have no justification to refuse the installation of the new goals on the basis of potential noise implications. It said it is possible the noise created could be greater than what neighbouring properties currently heard but did not consider an increase would be enough to justify moving the goals- It also noted there would be noticeable existing background noise from the road in between the park and Mr X’s property.
26. The Council also conducted a site visit. It noted the conditions were dry and around 10 young people were using the area for both football and basketball. It heard some background noise from use of the area, seen most noticeably when people kicked footballs against the perimeter fence.
27. As part of its complaint investigation the Council also consulted Fields in Trust. Documents provided by the Council show it asked for clarification on the classification of the area. It said in summary, the area was used for basketball, with a basketball court and two hoops, but was regularly used for football too. It explained about the new installation of the combined goals.
28. Fields in Trust said because its guidance is only a guide, it is usually up to people to interpret it themselves. It confirmed that a LEAP is associated with playground equipment, whereas a MUGA is usually for sports-based games. It said from what the Council described, the area would always have been defined as a MUGA and not a LEAP.
29. The Council did not uphold Mr X’s complaint and provided a response outlining what it had found in its investigation and explained it could not justify the movement of the goals. It recognised however, it had not placed any site notices about the work and said it would address this for future facility upgrades.
30. Mr X remained unhappy and brought his complaint to the Ombudsman.
31. In response to the Ombudsman’s enquiries, the Council said:
• There was no change to the boundaries of the overall court, and distancing from properties, that has existed and allowed mixed ball games for many years.
• Based on this history of the area and its existing uses, it did not consider the changes significant enough to warrant a local consultation exercise.
• The Council also provided historic photographic evidence of the area marked out for multiple balls sports, not just one sport at a time.
• When improving existing amenities, as courtesy, it should have placed information on the perimeter fence, telling users of the forthcoming changes.
32. In comments on my draft decision, Mr X said in summary:
• The complaint specifically relates to increased noise disturbance, due to repetitive bouncing of balls and failure of the Council to consider Fields in Trust guidance.
• The Council overlooked Fields in Trust Guidance and only contacted it retrospectively, after his complaint.
• In recent past, the area has been used as a casual play/gathering area, with one active and marked out basketball court and a pair of basketball hoops, which satisfies the Fields in Trust definition of a LEAP.
• The Council’s interpretation of a LEAP is incorrect and the area has changed from a LEAP to a MUGA, so Fields in Trust guidance should have been considered during planning.
• Environmental Health’s claim that there would be no significant increase in noise appears opinion based, as there is no confirmation the actual noise levels have been monitored by Environmental Health.
• The visit by the Council was at dusk, in January, when basketball was not being played.
• Background noise from passing traffic is random and not the same as repetitive basketball bouncing.
33. Mr X also said the Council made several incorrect statements in its complaint response. They related mainly to Mr X’s disagreement with the Council about the classification of the area.

Analysis

34. I cannot question whether the Council’s decision is right or wrong simply because Mr X disagrees. Rather, I must consider whether there was any fault in how the Council reached its decision. We expect councils to take into account relevant information and decide in line with law and policy. We also expect councils to provide clear evidence based reasons for their decisions.

The Council has changed the play area into a MUGA which needs a 30-metre minimum residential boundary distance.

35. The Council has explained there has been no change of use to the area in planning terms; the changes to the area were permitted development and did not require any planning permission. This is a judgement the Council is entitled to reach and it is in line with the law. I cannot find fault.
36. As to whether there has been a change of use with reference to the Fields in Trust guidelines, the Council has given evidence based reasons for its view that the area has always been a MUGA, including consulting with Fields in Trust who provided clarification. As the Council did not have to consult with Fields in Trust, the timing of when it did so is not relevant.
37. Although Mr X disagrees with the Council’s view, I cannot say its judgement is right or wrong and I find no fault in its decision making.
38. The Council has no legal duty regarding separation distances of MUGAs from residential boundaries. It did not have to apply the Fields in Trust guidelines and has since explained why it is unable to follow the guidelines in the local area.
39. I cannot say its judgement is right or wrong and I find no fault in its decision making.

The MUGA goals are now closer to Mr X’s property than the original basketball hoops.

40. While the goals are closer to Mr X’s property than the original basketball hoops, there are no planning considerations for the Council on the placement of goals within the MUGA, given its decision that there is no change of use. Therefore, I cannot find fault.
41. Mr X is unhappy the noise from repeatedly bouncing basketball and shouting has increased, partly by the new goals being moved closer to his property.
42. The Council did address Mr X’s concerns of noise as part of the complaints process. Its Environmental Health Team had no concerns about noise. I acknowledge this is the officer’s opinion, which he is entitled to hold and Mr X disagrees with the findings. However, I cannot say the Council’s judgement is right or wrong and I find no fault in its decision making.
43. The Council has not investigated this as a noise nuisance complaint. Mr X may raise a complaint of noise nuisance if he wishes the Council to further investigate this.

The Council did not let the public know its plans and ignored the fact local residents are mainly elderly and retired.

44. The Council has established that it did not need planning permission to install the new goals and so it did not need to consult residents on the planned work.
45. The Council explained however, that despite not needing to, it did consider a consultation exercise but decided the changes were not significant enough to warrant one. I find no fault in the Council’s decision making.
46. The Council had no legal requirement to place site notices in these circumstances. While the Council considers it would have been courteous, I do not find the Council at fault.

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Final decision

47. I have found no fault in the actions of the Council. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman