Maidstone Borough Council (19 016 638)

Category : Environment and regulation > Pollution

Decision : Not upheld

Decision date : 24 Jul 2020

The Ombudsman's final decision:

Summary: Ms X complains about the Council’s decision on a planning application and its failure to prevent dust from the development site affecting her property. She says she has suffered loss of privacy, stress and financial loss. The Ombudsman finds no fault in how the Council decided on the planning application or in its handling of Ms X’s complaints about dust.

The complaint

  1. Ms X complains about the Council’s decision on a planning application and its failure to prevent dust from the development site affecting her property. She says she has suffered loss of privacy, incurred costs due to cleaning and suffered stress.

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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. I spoke to Ms X and I reviewed documents provided by Ms X and the Council. I also accessed planning documents on the Council’s website. I gave Ms X and the Council the opportunity to comment on a draft of this decision and I considered any comments provided.

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What I found

Planning law

  1. Before a council decides on a planning application it must seek the views of the public. For major developments a council should either put up a site notice or send letters to neighbouring homes, allowing the opportunity for comment. A council should also place a newspaper advert and advertise the application on its website.
  2. A council must decide on a planning application in line with the local development plan, unless there are material considerations that suggest otherwise. Material considerations include the impact on residential amenities, such as loss of privacy. A council must be able to show that it has considered material planning considerations.
  3. Planning officers make most decisions but a council may refer others to a planning committee.

Council policy

  1. The Council’s local development plan says development should not result in unacceptable loss of privacy. I note it does not set out any minimum separation distances between existing properties and new development.

Environmental law

  1. A statutory nuisance may include dust arising on industrial, trade or business premises that is prejudicial to heath or a nuisance.
  2. A council should take reasonable steps to investigate complaints of statutory nuisance.
  3. If a council decides there is a statutory nuisance it should serve an abatement notice seeking the person cease the nuisance.
  4. If the problem continues the council may gather further evidence to demonstrate a breach of the notice. If there is evidence of a breach the council may take the matter to court. However, a council does not have to take court action.

What happened

  1. The Council granted outline planning permission for a major development near Ms X’s home in 2015. At this stage the Council did not consider details of layout and appearance. However, the planning committee report says the development could be designed to prevent any unacceptable impact on nearby properties in terms of privacy, light and outlook.
  2. The developer put in a planning application on reserved matters, including design and layout, in 2017. They then put in further plans, amending the design.
  3. Ms X says the Council did not notify her of any changes to the design and layout.
  4. The Council says it sent neighbour notification letters about the reserved matters application. It has provided a screenshot from its system showing the addresses and dates letters were sent. This shows it sent a neighbour notification letter to Ms X. The same screenshot shows the Council also sent letters to Ms X concerning the amended designs. The Council has provided copies of these letters.
  5. I note the relevant planning documents were (and remain) available to view on the Council’s website. I also note many neighbours provided comments objecting to the planning application.
  6. Having reviewed the planning committee report I note the following:
    • The planning officer has summarised the objections of local residents, which include concerns over loss of privacy.
    • The planning officer considers the layout of the development and judges there will not be any harmful impact on the privacy of neighbours due to the separation distances.
  7. In 2019 the Council granted planning permission, subject to conditions.
  8. In September 2019 Ms X complained to the Council. She said the developer had reassured her that her property would not be overlooked. However, now construction had started it is clear she is overlooked. At the rear of her property people can see across her garden into her living room and bedroom windows. And, at the side, there are views into her kitchen. The Council did not notify her of any amendments to the design and layout of the development. She would now have to buy blinds and voiles for privacy. Further, she had spent the past four months washing furnishings due to dust from the site.
  9. The Council responded to explain it sent her letters notifying her of the application on reserved matters, which included design and layout. It also sent a further letter notifying her of amendments to this application. It considered the impact on privacy when considering the planning application. Regarding dust, the relevant officer investigated and told her to contact him if she had further issues. As he heard nothing further he closed the case.
  10. Ms X complained further. She said she did not receive a copy of the amended plans and the Council did not consider the impact on her privacy. The amount of dust was a health and safety issue. The developer did spray down the site but only temporarily upon each complaint.
  11. In its final response the Council repeated it notified Ms X of amendments. Its officer asked her if the dust was still an issue by email in July 2019 and did not hear further so closed the case.
  12. In response to enquiries the Council said the distance between Ms X’s property and those nearest was 23m and 28m. The Council also provided evidence of its handling of Ms X’s report of dust. The correspondence shows upon Ms X’s complaint the Council arranged to visit the site to discuss the matter with the site owner. The Council then checked with Ms X who confirmed the matter was resolved. A month later Ms X made a further report of dust. The Council contacted her 10 days later apologising for the delay and asking if there was any change. The Council says it did not hear from Ms X again and so closed the case.

Findings

  1. The Council has evidenced it sent letters to Ms X notifying her of the reserved matters planning application and changes to the design. I note Ms X did not receive these letters however I cannot say this was through any fault of the Council.
  2. Although Ms X did not have chance to comment on the planning application the Council still had to consider the impact of the development on her privacy. The planning committee report shows the planning officer considered the impact on residential amenity, including on privacy. The officer considered the development would not be harmful due to the separation distances. As the Council does not have a specific policy on separation distances it was up to the officer to make a judgement.
  3. In view of the information available, I am satisfied the Council considered the impact on Ms X’s privacy but decided there was no harm. While I appreciate Ms X disagrees with the Council’s judgement, I find the Council followed a proper decision making process and so I cannot find it at fault.
  4. Having considered Ms X’s complaint it is clear she was severely affected by dust from the site. The information provided shows the Council initially understood the issue was resolved. Upon Ms X’s further report it checked with her if this was still an issue but heard nothing further. As the Council was unaware the problem was ongoing I do not find it at fault for not taking further action.

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Final decision

  1. I have completed my investigation. This is because I find no fault in the Council decision on a planning application or its handling of Ms X’s complaints about dust.

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Investigator's decision on behalf of the Ombudsman

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