Summary: There was no fault by the Council in how it handled planning matters on a large development next to Mr B’s house. It properly considered all the planning matters and reached a conclusion based on this. The Council failed to respond to Mr B’s complaint to it about this. The Council has apologised, offered to pay Mr B £100 and has identified how it can prevent this from happening again.

The complaint

1. Mr B complains about how the Council has handled planning matters regarding a large development adjacent to his house. In particular Mr B says the Council:
• failed to properly take into account the impact on residential amenity in terms of loss of light and privacy to homes and gardens, and that the new development would be overbearing;
• misrepresented other buildings in the neighbourhood when it considered the tall buildings assessment;
• failed to give due consideration to the impact on highway safety;
• failed to properly assess the design and use of the bin store or to protect residents’ amenity from the impact of this;
• failed to give due consideration to removal of the turning point for waste collection vehicles and how these will be able to leave and enter the service road in forward gear; and
• failed to respond to his complaints and contact about this.
2. Mr B says that as a result of the Council’s shortcomings, his house has lost privacy and light, and will be harmed by the position and use of the bin store. The highway safety is also reduced.

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The Ombudsman’s role and powers

3. 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 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)
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 considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its file documents and I interviewed the key officers. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken all comments into account in reaching my final decision.

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What I found

The law and policy

6. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
7. 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.
8. 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.
9. Government statements of planning policy are material considerations. General planning policies may pull in different directions (eg 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.
10. The Council can grant planning permission subject to conditions. These generally set requirements the applicant must meet. If it fails to meet these, the Council can take enforcement action.

What happened

11. Mr B owns a house in a mixed residential and commercial area, which he rents out to tenants. In 2020, the Council granted planning permission for a large development on a site adjoining Mr B’s house. This would demolish the existing collection of one and two-storey commercial units and erect two residential tower blocks of eight and nine storeys and some commercial-use units.
12. Mr B raised a number of objections to the development. The Council considered the planning merits of the development, including issues raised by Mr B, at its planning committee. The committee decided that the Council should grant planning permission. The applicant then reviewed the scheme and asked for several amendments, submitting new plans. The Council consulted all relevant parties again. The planning committee decided that the planning officers could consider the changes and decide whether to grant permission. The Council granted the planning permission subject to various conditions. Mr B complained to the Council and to the Ombudsman.

Did the Council fail to properly take into account the impact on residential amenity in terms of loss of light and privacy to homes and gardens, and that the new development would be overbearing?

13. The development includes two tower blocks of around 25 and 28 metres. These are around 39 metres from Mr B’s house. The Council’s planning policy says development is expected to safeguard the use of existing buildings. Its policy says that to ensure privacy there should be at least 21 metres between facing windows. In order to prevent a development being overbearing there should be at least 12 metres between windows and the end wall of a house. The development meets these basic requirements in relation to Mr B’s house.
14. Mr B says it was not appropriate for the Council to use this policy as it is designed for assessing the impact of houses rather than large tower blocks. However, the Council’s assessment of the planning merits of a development is made up of many factors. It can use this policy to inform its decisions as a starting point. The Council did not just use the basics of the policy but also applied other tests and assessments set out below.
15. In addition to these requirements, national guidance gives a standard preliminary test to assess the impact on light to a house. This says that if a new development intersects a line drawn at 25 degrees from a habitable window, then the Council will need to further assess the impact of the development. If the development sits below the line, there will be limited impact on the existing house in terms of overshadowing and overbearing. The guidance says the new development should not reduce the light to windows to less than 0.8 times their former value.
16. Mr B says the two towers changed in height between the committee approval and the eventual grant of planning permission. However, the Council has checked this a number of times, and has confirmed that the towers did not alter in height and were always eight and nine storeys, with a maximum height of 29 metres.
17. The Council’s planning report specifically assessed the impact on Mr B’s house and garden, as well as other surrounding residential properties. The Council has sent a plan showing that the tower blocks intersect a 25-degree line drawn from Mr B’s window. The Council has explained that the impingement on the line is minor, and it has taken into account further assessments when deciding that the impact on the house and garden is not sufficient to warrant it refusing planning permission. These assessments all concluded that the impact on light to and overbearing of Mr B’s house will be acceptable.
18. However, the Council also insisted the applicant submitted a further detailed study on the impact on Mr B’s house specifically. The report addressed concerns about the impact on daylight and sunlight. The applicant had commissioned a 3D digital model to aid the analysis of the impact on Mr B. Overall, this showed that although the 25-degree line is impinged slightly, there is very little impact on daylight to Mr B’s house. In terms of sunlight it reports that overall, there is little impact except to one bedroom that already had low levels of sunlight in the winter months.
19. Mr B says that this should not mean that a development is allowed to reduce this further. However, the Council formed its conclusions taking into account its own observations from site visits as well as the technical reports. The technical reports submitted by the applicant do not mention the impact on the garden, but the Council has explained that it did consider this and concluded that the towers will not impact significantly on the sunlight or daylight to Mr B’s garden, due to their distance from the house.
20. The Council has also explained that it assessed whether the development would be overbearing to Mr B’s house. It took into account that the existing industrial buildings immediately around Mr B’s house will be demolished and to some aspects the outlook will be slightly more open.
21. I appreciate that Mr B disagrees with the Councils conclusions, and the development will impact on his house. However, there is no fault by the Council in how it has assessed the impact on Mr B. It has considered the impact from all the buildings making up the development and has used information from the various assessments. It is open to the Council to weigh this evidence and decide that the impact on Mr B’s house does not warrant it refusing planning permission.
22. Mr B has also complained that there are two houses in the service road that will also be affected by the development. These are not mentioned in the planning reports or the information submitted by the applicant. I asked the Council specifically about these. It did consider the impact on these buildings and spoke to some residents regarding their concerns about the development. These houses had commercial garages and workshops opposite and between them and the development. The Council concluded that the development will not impact on these house and so did not include these explicitly in the planning reports. The Council did consider the impact on these houses; they were not overlooked or ignored. There was no fault by the Council here.

Did the Council use misleading information about other buildings in the area when it considered the tall buildings assessment?

23. The Council had to consider how the development would contribute to the character of the area. As part of this, the applicant submitted a ‘tall buildings assessment’ to show how the two towers will fit with other tall buildings in the area. Mr B says that part of this assessment was misleading as it wrongly stated the heights of some of the buildings and sought to compare the development with tall buildings that were not adjacent to residential development.
24. I asked the Council specifically about the cited heights of the other tall buildings. The Council understands that the number of storeys cited in the tall building assessment are broadly correct. It explained that more importantly, the fact that there are other tall buildings does not mean that the Council would grant this permission and the aim is to show how the development will fit into the wider landscape in terms of tall buildings.
25. The Council has explained at interview that it took into account that this was a complicated site and that it was adjacent to existing residential buildings as well as historic industrial buildings. As such, the planning committee was carefully briefed with meetings prior to the grant of planning permission, some of which Mr  B attended. The Council said the tall building assessment was presented to the planning committee, which asked detailed questions to properly consider the development. The Council considered all aspects, including the tall buildings assessment, and a detailed assessment by the conservation team which resulted in the older historic buildings and part of the layout being retained.
26. There was no fault in how the Council considered the impact of the development on the character of the area. It took into account all the information available to it and reached a conclusion based on discussion and consideration of the relevant factors. The tall building assessment is only one part of the assessment.

Did the Council fail to give due consideration to the impact on highway safety?

27. The applicant submitted a transport assessment and framework travel plan as part of the planning application. The Council consulted the Highways Authority which did not object, provided the Council secured some highways improvements. The Council made the approval of these details subject to condition. The applicant must submit details and the Council approve these before the development can start. The Council has not yet approved the details.
28. Mr B says that the applicant also submitted a technical note and this estimated there would be only 20 more additional vehicle movements per day, whereas the transport assessment estimates 50. The Council’s planning report says it considered the transport assessment and does not mention the technical note. This means the Council considered the higher number of additional movements.
29. The development will be served by two entrances. The main means of access for residents, some deliveries, and residential refuse collection is via a no-through service road. The applicant will improve the footway where the service road meets the main road, and there will be parking restrictions and changes to a nearby bus stop so as to improve visibility.
30. The other entrance is close to Mr B’s house and a main junction with other roads. A vehicle turning right into the site will need to cross the oncoming lane and an oncoming filter lane, where traffic waits. This entrance will be mainly for pedestrian or cycle access but will serve some commercial deliveries. Following the Highways Authority’s comments, the Council has ensured there will be improvements to pedestrian safety and driver visibility here. It has no plans to remodel the highway to assist traffic turning right into the site. Mr B considers this will be dangerous. However, the Highways Authority considered the safety of this junction and agreed that this would be acceptable with the alterations.
31. Again, it is open to the Council to decide that the highways improvements it has agreed are sufficient. It has done so in accordance with the advice of the Highways Authority, knowing that some deliveries and other vehicles will access via the main road. The Council properly considered highway safety when it granted planning permission.

Did the Council fail to properly assess the design and use of the bin store or to protect residents’ amenity from the impact of this?

32. The commercial refuse store is adjacent to Mr B’s house and replaces a single storey industrial building. The Council has approved the design of the bin store. It will be enclosed on all sides, including a roof. The plan appears to show that the ventilation will be on the opposite side of the building to Mr B’s house. The use of the store is subject to a planning condition that limits the hours it can be used. Mr B is understandably concerned that staff will not adhere to that. But if the condition is breached the Council can consider enforcement action. It cannot refuse planning permission on the speculation that a condition may be breached.
33. The original proposal showed a single storey office building in that location but this was changed to the commercial bin store. The planning report says that this is an improvement for Mr B’s house in terms of outlook. Mr B disagrees with this. The Council has explained that it considered this an improvement because it meant that the industrial buildings around Mr B’s house would be demolished, and his outlook would now be onto public space.
34. Mr B is concerned that bin store will not meet fire safety standards, but this is the remit of building control who will need to see that the store meets building regulations. This consideration would not prevent the Council from granting planning permission.
35. The Council attached a planning condition that prior to the work starting, the applicant must submit an odour control plan for its approval. This condition has not been discharged yet.
36. The Council consulted the Waste Authority on the development. It said that it would collect waste from the service road and not the main road. Mr B says the site agent has told him the commercial bin store next to his house will be serviced from the main road and it is clear that the design includes double doors that would allow access from the main road. Mr B also says that pushing waste carts to the service road will contravene manual handling regulations.
37. The Council also attached a planning condition requiring that the applicant submit a plan for the collection of both domestic and commercial waste from the site. Once received, the Council will consult the Waste Authority on whether the plans are acceptable. It will then consider the consultee responses along with other factors including the impact on the residents.
38. Mr B is understandably concerned about a bin store so close to his house. However, the Council has to consider the proposal put to it. It has properly considered this and the protection of the residents’ use and enjoyment of their homes. It has put in controls for the design, odour, use of, and collection from the bin store, and some of these details are yet to be approved. There is no fault by the Council here.

Did the Council fail to give due consideration to removal of the turning point for waste collection vehicles and how these will be able to leave and enter the service road in forward gear?

39. The Council granted planning permission on the basis that the residential and domestic waste is collected from this service road and as it is a no-through road, it would require a turning point. The Council attached a planning condition that it must approve details of the how refuse will be collected before the applicant can start work on that part of the site.
40. Mr B made this complaint because the plans used to discharge the conditions about the bin stores and the cycle storage did not show the turning point for large vehicles. However, the Council has explained that the details of waste collection will be properly examined when the applicant submits these to discharge the relevant planning condition. The Council has however assured me that there are private rights over the turning point, and it has examined this as part of other nearby development. That these are private rights does not prevent the Council from granting planning permission, and any issues would need to be resolved between the landowners and outside of the planning system.

Did the Council fail to deal with his complaints properly?

41. Mr B made a formal complaint to the Council in November 2020. He chased it, but the Council did not respond until Mr B asked the Ombudsman to intervene. At the end of March 2021, the Council apologised to Mr B and said it would respond to his complaint. Mr B again chased the Council for a response and again contacted the Ombudsman. The Ombudsman agreed to investigate the complaint, and the Council responded to Mr B on 20 August.
42. The Council has accepted that it did not deal with Mr B’s complaint properly. It has offered to pay Mr B £100 in recognition of the time and trouble he was put to in pursuing this. It has also addressed this with the service head and identified how it will improve its monitoring system so that complaints progress properly.
43. The Council’s complaint handling was very poor. Its offer of £100 and its service improvement to help prevent this from happening again is a reasonable way to remedy this.

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Final decision

44. I have completed my investigation. There was fault by the Council causing an injustice to Mr B, but the Council has already taken sufficient action to remedy this.

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Investigator's decision on behalf of the Ombudsman