Summary: Mr X complained the Council has not investigated his complaint about a breach of planning permission regarding noise from a local theme park. Mr X says the noise is impacting his family. There was fault in the way the Council did not properly investigate his complaint. Mr X was put to time and trouble to complain. The Council has agreed to apologise, make a financial payment and investigate Mr X’s complaint.

The complaint

1. Mr X complained the Council has not investigated his complaint about a breach of planning permission regarding noise from a local theme park. Mr X says the noise is impacting his family.

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The Ombudsman’s role and powers

2. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a Council’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. I read Mr X’s complaint.
6. I considered information provided by Mr X and the Council.
7. Mr X and the Council 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

Background information

8. Planning permission is required for the development of land (including its material change of use).
9. Planning permission may be granted subject to conditions relating to the development and use of land.
10. The purpose of the case officer’s report is not merely to facilitate the decision, but 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.
11. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
12. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public.
13. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)
14. Councils have a range of options for formal planning enforcement action available to them. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

What happened

15. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
16. Mr X lives near a theme park. In January 2023 he complained about the level of noise from the park. He complained the original approved planning application from 1994 was specific about the noise levels produced by the park. Mr X complained the noise from the park was a breach of the original planning application.
17. The Council responded to his complaint in February 2023. The Council said there were no relevant noise conditions that control noise at the boundary of the theme park. The Council agreed its environmental protection team would consider the complaint.
18. Mr X said the noise was not loud enough to be a statutory nuisance so it would not be relevant for the environmental health team. He said the issue was the noise level from the park was in breach of the original approved planning application. Mr X asked the Council to escalate his complaint to stage two.
19. The Council responded in March 2023. The Council said the last planning application related to a holiday village and other projects. It said any reference to noise in the application would only relate to the holiday village and the projects. The Council said this approved application did not impose control over the existing lawful operation of the park.
20. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to investigate the breach of planning control.
21. In response to my enquiries the Council stated its environmental health team had considered the complaint and there was no statutory noise nuisance. The Council added it did not consider there was a breach of planning control against which it would be expedient to take action. The Council offered to install sound monitoring equipment and once the data is available, the planning department would consider the information.

My findings

22. Mr X’s complaint was about the noise from the theme park not conforming with the original approved planning application from 1994. The Council has not investigated this matter, it has only investigated if the noise would constitute a noise nuisance and then against the most recent planning application. The Council has not understood the complaint and failed to adequately investigate it. This is fault and Mr X has been put to time and trouble to complain to the Ombudsman.
23. The law sets out the Council can decide if it is expedient to take enforcement action if it identifies a breach of planning permission. The Council has informed the Ombudsman it does not consider there was a breach of planning control to take enforcement action against. The Council is entitled to make this decision if it has correctly considered the matter. To make this decision the Council would need to have completed an investigation and the case officer’s report would detail why it is not taking enforcement action. I have seen no evidence of any investigation, report or decision making to come to this conclusion. The Council has not correctly considered this matter. This is fault and Mr X has been put to time and trouble to complain to the Ombudsman.
24. The Council has agreed it will install noise monitoring equipment on or near Mr X’s property. It confirmed once the data is received it will conduct an investigation and provide Mr X with its findings and a decision on his complaint. This is in line with what the Ombudsman would recommend, and I am satisfied with the Council’s proposed action.

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Agreed action

25. To remedy the outstanding injustice caused to Mr X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr X for not fully investigating his complaint. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mr X £200 as an acknowledgement of the time and trouble he has spent pursuing this complaint.
• Investigate Mr X’s complaint as specified in the response to the Ombudsman.
• Remind relevant staff of the importance of effective complaint handling.
26. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X

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Investigator's decision on behalf of the Ombudsman