Cheshire West & Chester Council (18 012 059)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 10 May 2019

The Ombudsman's final decision:

Summary: Mr and Mrs X complain that in requiring and then approving changes to the layout of the access road to a hotel opposite their house, the Council did not consider the impact headlight glare would have. The Ombudsman found no fault in the Council’s approach to deciding this planning application.

The complaint

  1. Mr and Mrs X complain that in requiring and then approving changes to the layout of the access road to a hotel opposite their house, the Council did not consider the impact vehicle movements would have on their residential amenity. They say the headlights of vehicles leaving the hotel now shine into their house many times a day, disturbing them and harming the value of their property.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. Although this complaint is made by both Mr and Mrs X, it was Mr X I had contact with during this investigation. I spoke with him and considered his views on the issue complained about. I wrote to the Council with enquiries and reviewed the material it sent in response. I have also read information available online about the two planning applications.
  2. I shared a copy of my draft decision with Mr and Mrs X and the Council and I invited them to comment on it.

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What I found

  1. Mr and Mrs X live in a house which faces the site of a large hotel.
  2. In 2013, the owners of the hotel applied to the Council for planning permission to build an extension. They included plans to alter the junction between the hotel driveway and the A road leading to the site, by adding ‘give way’ road markings and an island in the middle for pedestrians. The Council granted the planning permission with conditions. One of the conditions sought to ensure the junction would match the approved plans.
  3. In 2017, the hotel’s owners made a variation planning application. This application asked for a change to the condition put in place in 2013 to reflect a new plan for the layout of the junction. Mr X says this happened at the request of the Council. The Council accepts it spoke to contractors working for the hotel’s owners about the junction. It would have done so anyway as some of the work was on public land and a formal legal agreement had to be signed before it could start. The Council has provided copies of email correspondence showing an officer visited and asked for the installation of a pavement along the driveway where previously there was a painted line.
  4. The 2017 plan for the junction no longer had an island for pedestrians. It also made clear the existing kerb lines would be kept, although allowed for the replacement of the kerb blocks themselves.
  5. Mr and Mrs X say the Council did not tell them about the 2017 variation planning application. The Council confirms this, saying they are not adjoining property owners, and points out it put up a site notice and published a notice in the press in line with its legal obligations. There were no objections to the application and it granted the variation to the planning permission.
  6. Mr and Mrs X say, once the contractors completed the works in 2018, their house immediately became affected by headlights shining directly into it from vehicles leaving the hotel’s grounds. Mr X estimates this can be up to 1000 times each day. He says when the junction had its previous layout, vehicles would approach it and their headlights were normally shine towards his neighbour’s house instead. Mr X says he and his wife are particularly affected because they regularly use rooms at the front of their house.
  7. Mr X believes the junction has been ‘widened substantially’ at the Council’s request. The Council denies there has been any change to the width of the junction. It says the only structural change was to build the pavement but that was behind the existing kerb on the ‘inbound side’. Although the contractors replaced the existing kerb blocks, the plans required them to put back the new ones in the same place. It believes the kerb line has not changed and says the contractor who carried out the work has confirmed the same.
  8. Mr X says the Council did not consider the impact of the headlights on his property before giving permission for the changed layout. The Ombudsman asked the Council to comment on this. It accepts that headlight glare can be a material consideration for planning purposes. A material consideration is one which be taken into account when making a planning decision.
  9. However, whether a consideration is material is a matter of judgement and, in the opinion of the case officer, headlight glare was not in this case. The Council says this is because the existing access was around 47 metres from Mr and Mrs X’s house and the 2013 application had already accepted the principle of widening the whole highway to include pavements. The existing kerbs were to be replaced in position, without any change to the width of the road.
  10. After complaints from Mr X, the Council asked its environmental health team to consider whether headlight glare could be a statutory nuisance. This is the law which gives powers to local authorities and requires them to act where necessary. However, the Council decided headlight glare was outside the legislation and so it could not intervene on that basis.
  11. The Council has suggested Mr X might want to explore whether he can make a claim using the scheme laid down in the Land Compensation Act 1973.

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Analysis

  1. It is not the role of the Ombudsman to substitute my view of what decision should have been taken for that of an experienced and suitably trained planning officer applying their professional judgement. We can however investigate whether a decision was properly taken, considering applicable law, government guidance or local policies and procedures.
  2. I accept headlight glare now affects Mr and Mrs X where it did not previously. However, that alone is not enough to find fault. Instead, I have to consider whether the Council’s actions caused it to happen and, if they did, whether those actions were fault.
  3. The evidence I have seen shows the Council did have some influence on the plans filed in 2017. Contractors working for the hotel’s owners met with highways officers and, when they presented new plans, they incorporated changes requested. However, there is no evidence the Council’s intervention went beyond asking for a pavement to run along the driveway leading to the hotel. Given the Council’s highways team would always be consulted once the planning application was submitted, there was nothing improper about liaising with them ahead of time.
  4. I note the approved plans clearly show the kerb should not move. The Council says it has visited the site since and found the kerb line has not moved. Also, the comments from the contractor, although of limited value because they are not contemporaneous, say it did not move the kerb line. There is no evidence to show the junction is now wider other than Mr X’s own belief it is. On balance, I find the evidence available supports the Council’s position the kerb line has not moved.
  5. However, even if the kerb line has moved, the effect on Mr and Mrs X would not necessarily mean there was fault.
  6. There was no requirement to tell Mr and Mrs X about the variation planning application in 2017. Even then, although they did not have the opportunity to object, the Council still had to consider whether the proposed changes to the junction would affect their residential amenity. The Council has explained its position on whether headlights glare affecting the properties opposite were a material consideration. There is no evidence it considered this at the time but, given the kerb line was not changing, and there was already a similar vehicle access there, there was no obvious reason to do so. The absence of this consideration was not fault.
  7. The Council’s environmental health team has also taken legal advice and ruled out dealing with headlight glare as a statutory nuisance. It does not believe it meets the definition in law. This is a professional judgement matter for the Council’s officers and a decision taken on its own merits. The Ombudsman will not intervene in such decisions.
  8. In the absence of fault by the Council, I do not need to consider whether an injustice has been caused to Mr and Mrs X. They may have to explore their private legal rights against the property owner or to consider whether the scheme outlined in the Land Compensation Act applies to them. Those options however are outside the Ombudsman’s jurisdiction and so I cannot comment on them further.

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Final decision

  1. There was no fault in the Council’s approach to deciding this planning application.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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