Summary: We will not investigate Miss X’s complaint about how the Council’s dealt with and decided a change-of-use planning application for a site near her property. There is not enough evidence of fault in its decision-making process to warrant us investigating and we cannot achieve the outcome Miss X seeks from her complaint.

The complaint

1. Miss X lives in a property with a rear garden near an undeveloped piece of land. A planning applicant sought and received permission to change the use of the land to allow community and educational events. Miss X complains the Council:
1. granted longer opening hours for the activities than were applied for;
2. did not explain its opening hours decision;
3. failed to consider loss of privacy and noise impacts on her garden.
2. Miss X says the activities on the land will involve uncontrolled numbers of people and cause noise in her garden. She says she cannot use her garden because she finds the noise disruptive. Miss X says she has lost privacy in her garden because there is insufficient tree and foliage screening of the site.
3. Miss X wants the Council to impose additional planning conditions on the permission, requiring the applicants to increase the boundary screening and reduce opening hours to the original application of 9am to 3pm each day.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I considered information from Miss X, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

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My assessment

7. We are not an appeal body. We may only go behind a council decision if there is fault in the decision-making process officers have followed and but for that fault a different decision would have been made. We cannot replace a council’s view with our or someone else’s opinion. So we consider the processes councils have followed when making their decisions.
8. For a planning condition to be appropriate, it must be necessary, relevant to planning, relevant to the development being considered, enforceable, precise and reasonable in all other respects. Councils are entitled to determine which conditions they should apply to an application. They are not bound to the requests of the applicant when making their decision.
9. The planning documents show the applicant sought permission to use the site from 9am to 3pm daily. The Council granted permission for daily opening hours of 8am to 8pm. The planning officer’s report considers the proposed change-of-use, the activities and numbers of sessions on the site to not be an intensive use. Officers noted the applicant may wish to add more sessions, depending on local demand. They determined the physical constraints on the site and its lack of some facilities would act to limit visitor numbers. Officers concluded unacceptable impact from the site to adjacent residents would be prevented by not allowing its use in the late evening and overnight. In response to correspondence from a councillor Miss X had involved in the matter, the Council said the type and low level of activity proposed on the land, the foliage on the boundary which would be there when outside evening events would happen, and the distance from adjacent properties, meant officers considered the site could be operated until 8pm.
10. The Council’s planning report considered the amenity impacts on Miss X’s property. As with the consideration of the opening hours, they decided the site’s new use would not be an intensive one. The Council explained its position in response to the councillor that the low impact nature of the proposed use, the separation distances involved, and the tree coverage meant the use would not cause sufficient amenity impact, such as overlooking, to support a refusal of the application.
11. When making their decisions, officers considered the application documents, took account of comments received and assessed amenity issues relating to local properties. They imposed an opening hours condition they considered proportionate and took the view that there were insufficient planning impact reasons to support a refusal. Officers explained their decisions in the report and in their response to Miss X’s councillor. There is not enough evidence of fault in the Council’s decision-making process when granting the conditional planning permission to warrant us investigating. We recognise Miss X disagrees with the Council’s decisions. But it is not fault for a council to properly make a decision with which someone disagrees.
12. We recognise Miss X wants the Council to add planning conditions to the applicant’s permission, requiring them to increase the boundary screening and reduce the opening hours, conditions she considers officers should have included when granting it. A council cannot add in a planning condition once a permission has been issued. This would require revocation of the current permission. We cannot order councils to add new conditions to planning permissions, nor revoke permissions they have granted. That we cannot achieve the outcome Miss X seeks from the complaint is a further reason why we will not investigate.
13. If Miss X considers the use of the planning site is causing a noise amounting to a statutory nuisance on her property during opening hours, she should report this to the Council. Being able to hear voices or low volume noise from the site’s users may not amount to a statutory noise nuisance. If the site is used by the applicant outside its opening hours, this could be a condition breach she may report to the Council’s planning enforcement officers.

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Final decision

14. We will not investigate Miss X’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process to warrant an investigation; and
• we cannot achieve the outcome she seeks from her complaint.

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Investigator's decision on behalf of the Ombudsman