Summary: Mr D complained the Council failed to notify him about a planning application to make changes to a retail site near his property or properly consider the impact on his amenity. Mr D says he lost his opportunity to make representations and suffered unacceptable levels of noise and dust during the works. We have found fault by the Council in its notification but consider the agreed action of an apology provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr D, complains the Council failed to notify him about a planning application to make changes to a retail site near his property. Mr D also complains the Council failed to properly consider the impact on his amenity from the proposals or the impact from the demolition and building works.
2. Mr D says because of the Council’s fault he lost his opportunity to make representations about the impact of the proposals on his residential amenity and suffered unacceptable levels of noise and dust during the works which had a severe impact on his family life and mental health.

Back to top

The Ombudsman’s role and powers

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. We cannot question whether a council’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. 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)

Back to top

How I considered this complaint

6. I read the papers provided by Mr D and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr D after removing third party details. I explained my draft decision to Mr D and the Council and considered the comments received before reaching my final decision.

Back to top

What I found

Background

7. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority (LPA) or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
8. All decisions on planning applications must be made in accordance with the Council’s local development plan unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision-making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
9. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
10. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
11. The Ombudsman is not a planning appeal body. Our role is to review the process by which planning decisions are made.

Key events

12. The Council received a planning application for the removal of existing garden centre structures and for a new goods entry with changes to a service area and lighting in 2019.
13. Councils are required to give publicity to planning applications.  The publicity required depends on the nature of the development although in all cases the application must be published on the council’s website. In this case, the statutory requirement was also for a site notice or neighbour notification. The Council’s Statement of Community Involvement also says it will publicise this type of application by site notice or neighbour notification letter.
14. The Council has provided details of its publicity. This included posting a site notice next to the application site on 18 October 2019 and sending letters to neigbouring properties adjoining the application site. I have viewed a copy of the site notice and neighbour notification letter as well as the address list for the letters. The Council did not send a letter to Mr D as it does not consider the curtilage of his property adjoins the red line area of the application site and has provided a copy of the site location plan to demonstrate the relationship.
15. The case officer’s report sets out the material considerations which included the impact on the appearance and character of the host building and wider area, neighbour amenity, highway safety and flood risk. The case officer’s report refers specifically to Mr D’s property. The case officer noted the distance to the rear wall of the nearest residential property was 50 metres and the height of the goods extension was 5.8 metre which was comparable to a single storey dwelling. The case officer considered any impact in terms of outlook, light or overbearing to be limited.
16. In response to consultation, the Council’s Environmental Health Officer did not object to the proposals but recommended noise and lighting conditions due to the nearby residential properties. There was no recommendation for mitigation of construction disturbance in terms of noise or dust.
17. The Council approved the application subjection to conditions including conditions requiring a scheme for the containment, mitigation and management of noise from the goods extension and full details of the external lighting scheme.
18. Mr D contacted the Council about dust from demolition works in September 2020. The Council contacted the developer’s agent and the construction company about the issue and was provided with details of corrective actions to control off site dust emissions. The Council provided an update to Mr D at the end of September. Mr D contacted the Council about noise and vibration from site works in October. The Council explained works during the day would not normally be considered unreasonable.

My assessment

19. The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
20. Based on the information provided, I am satisfied the Council met the statutory publicity requirements and the requirements of its Statement of Community Involvement for the application. These both required publicity by site notice or neighbour notification letter and there is good evidence these actions were completed.
21. The Council has acknowledged that although Mr D’s property is approximately 50 metres from the application site, his curtilage and garden are in close proximity although they do not directly adjoin the red line area of the application site. The Council accepts that notification to Mr D in this instance may have been appropriate. We would agree with the Council given the relationship of Mr D’s property to the application site and as it is referred to directly in the case officer’s report. Case officer site visits can be a useful tool in identifying additional properties to notify. In responding to an earlier draft of this statement, the Council confirmed the case officer did add some additional properties to the list for notification following a site visit. These included properties some of which adjoined the boundary of the wider site whereas the red line boundary or the wider site does not immediately adjoin the boundary of Mr D’s property. I accept this is a matter of professional judgement. However, in the circumstances as outlined above, I consider the Council should have sent a neighbour notification letter to Mr D and, on balance, its failure to do was fault.
22. 
    It is unfortunate Mr D was not notified directly of the application as it is likely he would have objected to the proposals including raising concerns about the impact on residential amenity during construction. However, I do not consider that even if Mr D had made representations about the proposals this would have resulted in a different outcome for the application.
23. The Council says it could have imposed a condition requiring a Construction Management Plan to mitigate any impacts on residential amenity during construction. However, it was considered the relatively small scale of the development proposed with the separate Environmental Health legislation available to control any excessive and unacceptable issues arising during construction meant it was not necessary or reasonable to impose a requirement for such a plan for this application.
24. The Council has provided cogent reasons why it would not have recommended a condition requiring a Construction Management Plan for this application. On balance, I do not consider representations from Mr D about the impact of construction would have resulted in the addition of such a condition.
25. The case officer’s report set out the material planning considerations and provided an assessment of these with reference to Mr D’s property before concluding the proposals were acceptable subject to conditions. I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so. I have seen no evidence of fault in the way the Council reached its decision to grant planning permission for the development.

Back to top

Agreed action

26. The Council has agreed to write to Mr D to provide an apology for not sending him a neighbour notification letter about this application which meant he missed his opportunity to make representations within one month of my final decision.

Back to top

Final decision

27. I have completed my investigation as I have found fault by the Council but consider the agreed action above is enough to provide a suitable remedy.

Back to top

Investigator's decision on behalf of the Ombudsman