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Dover District Council (20 002 491)

Category : Planning > COVID-19

Decision : Upheld

Decision date : 18 Dec 2020

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s decision to approve planning permission on a development, affecting his residential amenity. We find no fault in the Council’s decision making process but find fault in its response to Mr X’s complaints. We recommend the Council provides an apology and seeks to address any outstanding queries.

The complaint

  1. Mr X complains the Council did not follow a proper decision making process in deciding to grant planning permission for a development. He says the development causes increased noise, loss of privacy, loss of visual amenity, disturbance from litter, campfires and building works and has a negative impact on the environment. Mr X says he has been put to time and trouble, incurred costs on professional legal support and suffered distress.

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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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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

  1. I spoke to Mr X and I reviewed documents provided by Mr X and the Council. I also reviewed planning documents available on the Council’s website.
  2. I gave Mr X and the Council the chance to comment on a draft of this decision and I considered their comments before finalising my decision.

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What I found

Permitted development

  1. Permitted development refers to development which can take place without planning permission. You may allow camping on your property for up to 28 days of the year without needing planning permission.

Planning applications

  1. A council must decide on a planning application in line with its local development plan, unless there are material considerations that suggest otherwise. Material considerations include the impact on amenities, such as loss of privacy. A council must show it has considered material planning considerations.
  2. Planning officers make most decisions but a council may refer others to a planning committee.
  3. Each council has its own procedures for referrals to planning committee.

Council policy; planning committees

  1. The Council’s website says if there are more than five representations contrary to the professional view or, at the request of a Member identifying planning reasons, it will refer a planning application to the Planning Committee.
  2. A person can have their say on applications considered at Planning Committee meetings. You do not have to speak to have your views taken into account as letters carry equal weight and will always be considered carefully. However, you may feel that speaking at the meeting gives you the chance to reinforce the points already made in writing.
  3. Written submissions, photographs or display material will not be accepted at the meeting.

Law; temporary changes

  1. In March 2020 the Government issued a planning update to councils recognising they may face issues due to the COVID-19 pandemic. In respect of planning decision making this said:

“We ask you to take an innovative approach, using all options available to you to continue your service. We recognise that face-to-face events and meetings may have to be cancelled but we encourage you to explore every opportunity to use technology to ensure that discussions and consultations can go ahead. We also encourage you to consider delegating committee decisions where appropriate. The Government has confirmed that it will introduce legislation to allow council committee meetings to be held virtually for a temporary period, which we expect will allow planning committees to continue.”

  1. On 2 April 2020 the Government temporarily amended the law to allow councils to hold virtual planning committee meetings. The Government issued guidance to say councils should take advantage of these powers to hold virtual planning committees, rather than deferring committee dates. They should also consider using ‘urgency powers’ within their constitutions to give senior officers delegated authority to make decisions.

Council’s Constitution

  1. The Council’s Constitution is available on its website. This sets out the urgency procedures whereby the head of service may make decisions in place of a committee. It says:

“In relation to Council functions when matters of urgency and items not involving matters of policy require decisions between the meetings of a Council or Committee… the Chief Executive or appropriate Head of Service or specified officer shall be empowered, in consultation with the Chairman and Vice- Chairman of the Council or of the relevant Committee… to deal with such items”.

What happened

  1. The owner of a property and land near to Mr X made a retrospective planning application for change of use of land for educational purposes and the construction of various buildings.
  2. The Council explains the applicant twice revised the initial application because they had not included all relevant land. The applicant did not think they had to include agricultural land as they were not making any changes to it. However, the Council found this included a large educational component and so should be part of the application. The Council says the applicant changed the description of works, submitted amended drawings and the Council consulted again.
  3. Mr X objected to the application as the site was already in educational use resulting in increased traffic. A driveway had already been widened risking the stability of trees. And, he had concerns about the impact to wildlife, breach of Tree Protection Orders (“TPO”) and use of the land for camping at night (as referred in the planning statement). His neighbour Ms Y objected on similar grounds. Objections from others included:
    • the site initially took only 10 children but this had increased over time to 30;
    • concerns about the impact on a listed building;
    • concerns about loss of privacy and noise;
    • concerns about parking;
    • ongoing disturbance from the noise of tree works and a security light;
    • concerns about ongoing anti social behaviour of children.
  4. The Council has provided a copy of correspondence exchanged with the applicant. This shows the applicant expected the Council to consider the application at the March 2020 planning committee, but this was not possible as the case officer was on long term sickness absence. The applicant wanted a decision urgently. The Council said it would try to consider the case at the April planning committee meeting if possible.
  5. A case officer considered the application and produced a report. This describes the site, which includes woodland, farmland and a listed building. I note the following relevant points from the report:
    • The officer considered the local development plan and relevant law and policy, including the need to have regard to preserving the setting of a listed building.
    • The officer summarised the objections received. I note the officer does not list every objection however refers to the list as a summary only.
    • The officer summarised comments in support. I note the officer does not list every comment, however refers to the list as a summary only.
    • The Highways authority had no objections, provided student numbers were limited to 40 and there was a condition to ensure parking provision.
    • Ecology officers had no comments.
    • Environmental health officers had no comments.
    • Tree officers had no concerns or objections about trees; no evidence any TPO trees cut.
    • Part of the woodland is under public use. The applicant is currently building a fence to separate the area for public use.
    • Educational use started in 2015 but the buildings and agricultural use are more recent.
    • There are currently 30 young people attending, with a maximum space for 40.
    • There is existing parking on site.
    • The officer considered the principle of development with reference to the most important policies. This included a consideration of the loss of countryside and open space. The officer noted there were no known conservation matters to consider.
    • Education mainly takes place in the rear garden area, which is well defined and physically contained. Education use extends into the woodland area.
    • The garden is not overtly visible to the public and so its use will have a minimal impact on visual amenity.
    • The woodland is protected by a TPO. The new building in the woodland is modest and not visually intrusive.
    • One further building is visible to the public and does cause some harm to visual amenity, which the Council will need to weigh up in the balance.
    • The use of land for agricultural purposes does not need planning permission. However, as the applicant wants to make use of the farm for educational use, planning permission is necessary. The appearance and use of the land is not visually untoward.
    • Given the distance between the buildings and the size and appearance of the closest building, the officer does not consider there is a material effect on the setting of the listed building.
    • Given the existing fencing and landscaping the officer considers neighbours are suitably safeguarded from overlooking and loss of privacy.
    • Given education use only takes place during normal school hours the officer considers noise and disturbance will be at less sensitive times. Neighbours will have a reasonable degree of peace and quiet at evenings and weekends.
    • The officer weighed up the harm and benefits of the development and found the adverse impacts did not outweigh the benefits.
    • The officer confirmed they considered other issues raised in response to the consultation but these did not affect the planning balance or the conclusions drawn in the report.
    • The officer recommended the Council grant planning permission.
  6. A note then follows explaining the planning committee would normally decide the application at the next meeting of 16 April 2020. However, due to the COVID-19 pandemic the Chief Executive decided on 27 March 2020 to cancel the meeting. As a result, the Council decided to use its urgency powers to decide any application due for consideration at the April meeting. It would report the decision outcome to members who would have chance to raise questions at the next available planning committee.
  7. On 1 April the Council emailed members of the Planning committee. It explained:

“The Chief Planner for the Government has written to all Local Planning Authorities emphasising the importance of the Development Industry to  the national economy, and urging them to keep the planning system going so that recovery is not held up when it occurs. The statutory timescales for determining Planning applications, the publicity requirements and performance targets have all been maintained as a consequence, and LPA’s are asked to be innovative in the way that they determine applications to achieve this objective.”

“In order to abide by this, applications that would have been presented to the April meeting will now be determined by myself (head of planning) in consultation with the Chair and Vice Chair of the Planning Committee. This course of action has been the subject of extensive discussion with Senior Members, and resolved as being the best of the limited options available to us. The ability to do this is enshrined in the Urgency Provisions of the Constitution…”.

“Legislation has now been passed that will enable different meeting formats going forward, and once the consequential secondary legislation is also passed we can start to put those arrangements in place for the May Planning Committee.”

  1. On 8 April the Council emailed all ward members attaching its previous correspondence and a list of the cases it intended to decide in the next few days.
  2. On 20 April the Head of Planning, in consultation with the Chairman and Vice- Chairman of the Planning committee considered the case officer’s report and approved planning permission with conditions. These included a condition to ensure parking provision and a limit on the numbers attending to 40.
  3. On 20 and 21 April Mr X and Ms Y jointly complained the Council had cancelled the planning committee meeting. They said it did not hear their views and had ignored their concerns.
  4. The Council responded to both on 4 May. It explained it considered information from the Government’s chief planner provided in March 2020. At that time it could not hold public meetings due to the pandemic and there was no legislation allowing virtual planning committee meetings. It told members it expected legislation and measures to be in place for it to hold virtual meetings for the May cycle. It had fewer options available for the scheduled April meeting and so decided to use its urgency powers under the Constitution. These allow the Head of Service to take the decisions on planning applications in consultation with the Chairman and Vice-Chairman of the Planning Committee. It was mindful of statutory timescales for determining applications. Given government advice on social distancing and the need to minimise leaving homes, and the obvious difficulties of holding committee meetings under such conditions, it could not see it had any alternative. It told ward members in advance it would decide the case in this way. Its website showed it cancelled the April planning committee meeting.
  5. Mr X told the Council they were representing other concerned residents too. He asked it to explain why it considered the decision urgent. And he was unhappy with the case officer report because:
    • The officer gave weight to non-planning matters and messages of support.
    • The officer did not list all objections including loss of privacy, safeguarding children and the impact on a heritage asset.
    • The numbers attending were to increase from 12 to 40, not 30 to 40 as said in the report.
    • The garden is not physically contained; there is access from the woods.
    • He disputes there is no visual change to the site excepting the woodland classroom; much undergrowth has been cleared.
    • He disputes there is no impact on the setting of a listed building.
    • The officer ignored complaints about noise from ongoing works, intruder lights and smoke from campfires.
  6. Mr X also queried if the Council had visited the site; whether the farm need planning permission and why the report did not reference the importance of that site as mentioned in the Council’s development plan.
  7. The Council responded, in summary:
    • The applicant sought a decision urgently and it took into account the chief planner’s update of March 2020.
    • A report will refer to and summarise representations received; the weight attached to each will vary depending on relevance.
    • Objections about loss of privacy; the impact on a heritage asset; the increase in numbers attending; ongoing works; intruder lights and smoke are referred and addressed in the report.
    • Safeguarding of children is covered by other legislation.
    • The reference to the garden being contained did not mean it was secure.
    • The officer holds a differing view to Mr X as to whether there is a visual change.
    • Officers did visit the site.
    • It agreed to the educational use of the farm as part of the application.
    • It queries where the site is referenced in its documents.
    • It sent a copy of the report to all members of the committee in advance. Ward members had the opportunity to comment on the report and anticipated decision.
  8. Mr X complained further as he felt the Council had not answered his questions or provided satisfactory responses to his complaints. He also queried why the Council gave planning permission for the farm which was not subject of the application. He said a ward member’s request to call in the report for discussion at committee was ignored.
  9. The Council provided a further response. It noted Mr X had referred to the Council’s Heritage Strategy. The Head of Planning has said, in their view, this important historical fact is not diminished by the proposed development. It can refer specific complaints about light intrusion and smoke from bonfires to Environmental Health. It enclosed evidence that it informed members before deciding. It said they could contact the Ombudsman if they remained unhappy.
  10. Mr X remained unhappy with the Council’s reply and responded further. Although it emailed members before deciding he felt this was presented as a conclusion and did not allow for committee discussion. The Council had not explained why it gave planning permission for the farm which was not part of the application. It did not address concerns about planned night time activities or future expansion. They had suffered weeks of noise from chainsaws and building works. And he was unhappy objections were taken down from the website without explanation.
  11. Mr X then complained to the Ombudsman that the Council;
    • Did not hold a planning committee meeting; he had prepared a PowerPoint presentation specially for this;
    • Removed objections from the planning website;
    • Decided based on a case officer report containing errors and;
    • Did not properly consider objections raised.
  12. Mr X provided a statement from a ward member, Mr Z. Mr Z said he would have called the application into committee however he was not kept updated from February 2020 until a decision was made on 20 April 2020. The planning committee chairman assured him they would have deferred a decision until members of the public could attend a meeting, had he known of Mr Z’s wish to call it in.
  13. The Council has since explained it removed two objections from its website for legal reasons. After taking legal advice it redacted and reposted these.

Findings

  1. It is not in dispute that public planning meetings could not go ahead in March 2020 due to the COVID-19 pandemic. In view of the Government’s March update, I am satisfied it was for councils to decide how best to continue their service. I note the Government encouraged delegated committee decisions where appropriate. From 2 April 2020 the Government enabled councils to hold virtual planning committee meetings but also asked councils to consider taking decisions using their urgency powers.
  2. On 27 March the Council decided to cancel the April planning committee meeting and take those decisions using its urgency powers. Its reasons are explained in the case officer report and within its complaint responses to Mr X. I note Mr X disagrees with the Council’s decision, however I find the Council decided in line with the Government guidance and its Constitution. I find no fault.
  3. The Council has evidenced it updated all members including Mr Z on 8 April, setting out the cases it would decide using its urgency procedures and explaining why. Mr Z therefore had the chance to object to the process or ask for the case to be deferred to the next public meeting, but the evidence provided to me suggests he did not do so.
  4. I note Mr X disagrees with the case officer’s judgement on various matters. However, I cannot question whether a council’s decision is right or wrong simply because Mr X disagrees with it. I must consider whether there was fault in the way the decision was reached.
  5. The application was for change of use and additional buildings. The case officer report explains the change of use also applied to use of the farm, insofar as it was used for education. The case officer report shows the Council considered the application in line with its local development plan, relevant law and policy. The Council does not have to list every objection but must be able to evidence it has taken account of material planning considerations. The report shows the Council considered material planning considerations including loss of privacy, noise, the impact on residential amenity, the impact on the highway, the impact on the setting of a listed building, and any impact on trees and ecology. The Council took account of the numbers currently attending the facility and imposed a condition to limit future numbers. The report also shows the Council did not take account of any non-planning matters such as concerns over safeguarding children, complaints of antisocial behaviour and complaints of ongoing nuisance from noise, security lights or smoke pollution. I am therefore satisfied the Council considered relevant information in reaching its decision and I have not seen any evidence it decided based on inaccurate information. I find no fault in the Council’s decision making process.
  6. The courts have made clear that case officer reports do not need to be perfect, as their intended audience are the parties to the application, who are well versed of the issues. And, case officer reports do not need to include every possible planning consideration, just the principle controversial issues. Therefore, while I consider it would have been helpful for the Council to address each objection within the case officer report, I find this omission does not amount to fault.
  7. I note the use of land for camping overnight is a planning matter, but the use described is permitted development and does not need planning permission. Again, it would have been helpful for the case officer to address this within the report. However, I find this does not amount to fault causing injustice.
  8. Having reviewed the complaint correspondence, I consider the Council did not adequately address Mr X’s complaints, causing him frustration and leading him to complain to the Ombudsman. The Council told Mr X the objections he referred were listed and assessed in the case officer report, but this was incorrect. And it did not further explain its granting planning permission for the farm, although Mr X had queried this. I find the Council at fault in its complaint handling, causing injustice to Mr X. As Ms Y was joined in the complaint, I consider it appropriate to recommend a remedy to her too.
  9. I note objections are published on the Council’s website. I am satisfied with the Council’s explanation for removing two objections temporarily before reposting them. I find no fault in this regard.

Agreed action

  1. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
    • provide Mr X with a written apology for its failure to adequately address his complaints;
    • ask Mr X if he has any remaining queries and seek to address these;
    • provide Ms Y with a written apology for its failure to adequately address her complaints;
    • ask Ms Y if she has any remaining queries and seek to address these.
  2. The Council has accepted my recommendations.

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Final decision

  1. I find no fault in the Council’s decision making on the planning application but I find fault in its complaint responses. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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