The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint the Council failed to properly assess the noise nuisance impact of an industrial solar park by not requiring the application submit a noise impact assessment when deciding on a planning application. This is because his complaint is late and there are no good reasons to exercise discretion to consider the late complaint.
The complaint
Mr X complains the Council failed to properly assess the noise nuisance impact an industrial solar park would have on the community living close by while deciding on a planning application. He says the Council failed to request the applicant submit a noise impact assessment with the planning application, and so the approval was flawed. Mr X says he suffers from noise nuisance from the solar park.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council approved the planning application for the industrial solar park in December 2012. The Council said noise issues were specifically addressed in the officer’s report and that the officer who considered the application was satisfied the noise levels from the inverters, cooling fans, and associated transformers were not considered to be such that they would be harmful to residents.
The Council also confirmed it consulted with an environmental health officer at the time, who noted the nearest noise sensitive property was over 400 metres away from the solar park. However, the officer did recommend a condition be imposed for noise from the operation of the inverters, cooling fans, and associated transformers on the site not to exceed a limit.
Mr X provided me with evidence which instead suggests the distance from the closest inverter was just under 220 metres away from the nearest noise sensitive property. Therefore, he considers the Council failed to correct identify the closest noise receptor during its consideration of the planning application.
In its complaint response, the Council confirmed there was no formal requirement for the applicant to submit a noise impact assessment as part of the application.
Mr X’s complaint is late as it is about matters that happened more than 12 months ago. In this case, Mr X’s complaint is about the Council’s consideration of the planning application, which happened in 2012. I am satisfied it was reasonable to expect Mr X to have complained about the matter earlier. This is because Mr X is a nearby resident and would have been aware of the planning application. Further, Mr X noted in his complaint correspondence that he has been experiencing noise nuisance for over a decade. Therefore, Mr X was likely aware of the issues earlier and it was reasonable for him to have complained sooner. I am also satisfied there are no good reasons to exercise discretion to consider the late complaint.
Even if we were to exercise discretion, we would not investigate the complaint. This is because the Council had properly considered the impact of noise during its consideration of the application. The Council also confirmed there was no requirement for the applicant to submit a noise impact assessment and so it is unlikely we would find fault.
Final decision
We will not investigate Mr X’s complaint because his complaint is late and there are no good reasons to exercise discretion to consider the late complaint.
Investigator's decision on behalf of the Ombudsman