A couple who bought a new-build home in 2021 are in dispute with their local council over noise mitigation measures promised when they purchased the property. The residents live adjacent to a 70mph carriageway, and a noise assessment was a condition of the original planning permission for their housing development. However, they discovered after moving in that no such assessment had been conducted, and the council had already discharged the planning condition.
Following a complaint, the Local Government Ombudsman upheld their case. The council subsequently agreed to upgrade the home's windows, install mechanical trickle vents, and construct a four-meter-high acoustic fence to block the road noise. The residents have been awaiting the assessment of the fence's feasibility for over four years.
Council Rejects Original Plan
Recently, the council informed the homeowners that the four-meter fence cannot be built, citing issues with underground services, highway safety, and costs. Instead, they have offered a two-meter fence, which the residents believe will be ineffective given the significant noise levels in their garden, measured at 70 decibels.
Legal and Planning Considerations
Solicitors have advised the homeowners not to accept the proposed two-meter fence without further scrutiny. Manjinder Atwal, director of housing and property litigation at Duncan Lewis Solicitors, questioned how the four-meter fence was initially proposed without proper feasibility checks. He recommended requesting a full written explanation from the council regarding the original assessments, the current obstacles, and any alternative solutions considered. An independent acoustic assessment could provide evidence to challenge the council's proposal.
Atwal also stressed the importance of reviewing the Local Government Ombudsman's recommendations and the council's formal agreement. He noted that legal remedies might be available if the council failed to properly address planning conditions, implement agreed remedies, or made its latest decision without considering relevant evidence. Judicial review, a specialized legal process with strict time limits, could be an option, though its success would depend on the council acting unlawfully or improperly.
Joanne Ellis, a partner at Stephensons specializing in dispute resolution, echoed concerns about the initial discharge of planning conditions without a noise assessment. While challenging the original planning decision may now be time-barred due to the purchase date of 2021, she highlighted that the council's more recent decision to reject the four-meter fence could be subject to judicial review, provided there is no alternative appeal route. However, she cautioned that judicial review focuses on the lawfulness and process of a decision, not necessarily its perceived correctness. A successful review might lead to the council revisiting the decision, potentially reaching the same outcome if the process is rectified.
Roadway and Property Purchase
Regarding the carriageway itself, it appears to have predated the housing development and the homeowners' purchase. Therefore, direct legal recourse concerning the road's existence or use is unlikely. Homeowners are advised to review their property purchase documentation for any misrepresentations made about the carriageway or planning position, which could potentially lead to liability for the seller.