Summary: Mr X complains the Council allowed a neighbouring business to install external lighting bollards, which shine into his home. He says the Council did not properly consider the impact of the bollards on his amenity and made errors in the way it dealt with the application. The Ombudsman finds fault in how the Council managed the planning procedure and in its response to Mr X’s complaint.

The complaint

1. Mr X is represented by a planning solicitor. Mr X says the Council failed to consult him when it received an application to discharge a condition of a planning permission and failed to properly examine plans submitted with that application.
2. Mr X wants the Council to change or revoke the planning permission. He also wants the Council to repay the cost of employing the planning expert as well as Counsel to point out shortcomings in the Council’s approach.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. 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

7. My colleague discussed matters with both Mr X and the planning solicitor who represents him. He sent a draft decision statement to Mr X and his solicitor as well as the Council. Following a review of the case I considered further information provided by Mr X and the background correspondence. I reviewed the complaint and background correspondence provided by Mr X and the Council. I sent a further draft decision to Mr X and the Council for their comments.

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What I found

Law, National Guidance and Local Policy

8. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
9. Councils are required to give publicity to planning applications. The publicity required depends on the nature of the development although in all cases the application must be published on the council’s website. In this case, the requirement was also for a site notice or neighbour notification.
10. The Council’s policy says that nearly all applications require neighbour notifications in the form of a letter sent to neighbours immediately abutting the site area. It says the Council often goes beyond the statutory requirement and notifies properties opposite the site where the development could have a wider impact.
11. Councils can take enforcement action if they find planning rules have been breached. However councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:
• “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)
12. Section 97 of the Town and Country Planning Act 1990 (“the Act”) allows councils to revoke or modify planning permission if it appears expedient. This power only exists before the operations are completed. Where there is an objection to a revocation order being made, section 98 states that the order must be confirmed by the Secretary of State. Section 102 also gives powers to discontinue or add conditions to planning permissions, including after the operations are completed.
13. In practice, revocation of planning permission is extremely rare. Councils will only consider this option in exceptional cases. The Secretary of State is unlikely to confirm a revocation unless the decision is grossly wrong and would cause damage to the wider public interest.
14. The Council’s planning policy NE/14 deals with lighting proposals. It says proposals for external lighting should ensure:
• The lighting scheme is the minimum needed for reasons of public safety and security
• There is no light spillage above the horizontal
• There is no unacceptable adverse impact on neighbouring or nearby properties or on the surrounding countryside
15. The policy goes on to say artificial lighting is essential for safety and security and in some cases can add to amenity by highlighting buildings of character. It says external lighting is needed for commercial use and some community facilities. However, it can also cause light pollution and may require the use of planning conditions to limit times when lighting is used to minimise disturbance.

Background

16. The Council received a planning application for a two-storey extension to a building to accommodate a dental surgery, car parking and alterations to access in March 2016. Mr X’s home adjoins the site.
17. Mr X says the applicant met with him to discuss her plans for the extension before the application was submitted. He also attended a meeting at the village hall at which the applicant talked about the plans for the dental surgery in February 2016. However, Mr X says the Council did not notify him of the application when it was submitted in March 2016.
18. The Council granted planning permission in May 2016.
19. The Council imposed a condition on hard and soft landscape works. Condition 7 states:

“No development shall take place until full details of both hard and soft landscape works have been submitted to and approved in writing by the Local Planning Authority. These details shall include indications of all existing trees and hedgerows on the land and details of any to be retained, together with measures for their protection in the course of the development. The details shall also include specification of all proposed trees, hedges and shrub planting, which shall include details of species, density and size of stock.”

20. The applicant then completed landscape works including installation of lighting bollards before applying to discharge condition 7. It is not clear exactly when the landscape works, including the lighting bollards, were completed. However, the documents seem to suggest this was in late 2017.
21. In September 2016 the applicant sought to vary a condition of the planning permission. The applicant submitted a new plan, which includes several lighting bollards in the car park. The bollards are difficult to make out on the plan and are only referred to as lighting bollards in a small annotation to the side of the plan. The officer did not notice the change and approved the application in November 2016. Their report did not consider if the added bollards had any impact on neighbouring amenity.
22. In terms of publicity, the Council placed a site notice. It also sent a notification letter to a nearby property. However, it did not send a notification letter to Mr X.
23. The applicant then made a discharge of condition application in December 2017. The Council approved the application in January 2018.
24. In a document titled ‘landscape comments’, the planning officer noted there were lockable fold-down bollards and bollard lights. The officer stated ‘details required’. The officer recommended partial approval of the landscape works. But the officer then went on to issue a decision notice which stated the details submitted to discharge condition 7 were acceptable. The conclusion of the decision notice stated ‘as works have been completed it is not possible to formerly (sic) discharge the conditions 5,6,7, 9 and 15. However, as noted above, the details submitted are considered acceptable’.
25. Mr X’s planning solicitor made a complaint to the Council in the summer of 2018. He complained the Council had granted permission for the lighting bollards. He said the light from the bollards shined into his home, causing a nuisance and decreasing the value of his property.
26. The Council sent a reply at the end of October 2018. It said the bollards were included on the landscaping plan submitted with the discharge of condition application made in December 2017 and so had planning permission. It said the option of modifying the planning permission was available to the Council. However, the existence of the bollards was not considered so significant within the scheme as to require planning permission in their own right. The Council was satisfied the bollards could be reasonably considered part of the hard landscaping of the site.
27. The Council’s reply pointed out there had been two light nuisance assessments by an environmental health officer who concluded there was no statutory nuisance through use of the lighting bollards.
28. The Council apologised for the delay in responding to Mr X. It did not accept Mr X’s claim for compensation.
29. In November 2018, Mr X’s planning solicitor asked the Council to consider the matter further at stage two of its complaints process. He said the matter had arisen partly as a result of the failure of the Council to consult. The solicitor said the architect who submitted the 2016 application on behalf of the dental practice drew the Council’s attention to the construction of Mr X’s property.
30. He said there were inaccurate legal and planning issues in the Council’s stage one complaint response.
31. The solicitor was mystified that the officer claimed the existence of the bollards was not so significant within the scheme as to require planning permission in their own right. He said this was factually and legally incorrect. He said installation of the bollards constituted operational development and required planning permission in its own right.
32. Contrary to what the officer said on the intensity of illumination being a matter for the environmental health team to consider, the solicitor said he had been involved with various applications where the intensity, placement and effect of external lighting had to be addressed. He said the standard conditions in annex A of circular 11/95 were still in force and indicate lighting is something that should be approved. The solicitor referred to condition 25 on landscape design proposals and condition 29 on landscape works implementation that relate to floodlighting.
33. The solicitor said the Council had ignored normal planning considerations in the determination of planning applications in a haste to absolve itself of any responsibility. He said council officers had told his client in the past that they were embarrassed as they had not picked up the lighting as an amendment to the plans. Mr X said the Council should acknowledge this and deal with the consequences of its failure.
34. The solicitor referred to the December 2017 discharge of condition application and queried whether the Council received the details on the bollards as stated by the planning officer.
35. The solicitor said the lighting assessments done by the environmental health officer were insufficient.
36. The solicitor said the Council had misdirected itself on the issue of modification of the planning permission. He said there were specific powers in section 97 of the Act, which enables a local planning authority to revoke or modify a planning permission.
37. The Council responded to the complaint in March 2019. It summarised the complaint as follows:
• The lighting bollards were not shown on the original approved plans and were only shown on the landscaping plan submitted in discharge of condition 7 whereas the proposed lighting bollards required planning permission.
• Mr X was not consulted on the submitted details.
• The bollards were installed before approval was obtained from the Council.
• The bollards have an adverse impact on Mr X’s amenity.
• Light pollution is a material planning consideration and should have been considered in this instance.
• The planning permission should have been revoked by the Council as there had been maladministration.
38. The Council said it is normal practice to deal with lighting schemes as part of hard and soft landscaping schemes and so it did not consider the lighting bollards would be material in their own right so as to require submission of a further planning application.
39. However, the response expressed the view that Mr X should have been consulted on the discharge of condition application as the number of lighting bollards meant there would be an impact on Mr X’s property. The officer noted the Council does not normally consult on discharge of condition applications but felt the Council should consult in instances like this one where details are not shown on original plans and further details indicate there could be impacts on neighbouring properties. The officer said the Council would review its processes and procedures.
40. The officer explained it is not an offence to carry out development in advance of obtaining planning approval.
41. The officer said the extent to which lighting impacts can be considered as material planning considerations vary from case to case. The officer said in this case the original chapel building has very large windows which are not obscured and which admit large amounts of light when the building is in use. The officer felt lighting from the bollards had to be seen in that context.
42. The officer noted the view of environmental health officers that there was no statutory nuisance from the lighting following two inspections.
43. The officer offered to contact the dental practice to investigate the possibility of a cap/hood over the lighting bollards to reduce their impact. The officer said this would be a matter for negotiation and any solution would have to maintain the security objective of the bollards.
44. There was an exchange of emails between Mr X’s solicitor and the Council as well as a telephone discussion between the solicitor and the officer who compiled the stage two response. However, the exchanges did not move matters forward before Mr X complained to the Ombudsman.
45. After discussing this complaint on the telephone with the planning solicitor, he wrote to me to say that he did not complain about a failure to consult Mr X on the application to discharge a condition. He did not understand why I raised the question of consultation with the discharge application. The solicitor said the council’s position has always been that the lights gained approval as a result of being shown on a plan included as part of the application to vary condition 2 made in September 2016. Mr X says that was a new planning application and in so far as it is relevant to the complaint that is the application that should have been consulted upon.

Findings

46. I have investigated the following matters:
• Whether the Council properly publicised the variation of conditions application
• How the Council considered the addition of lighting bollards
• How the Council considered the discharge of condition application
• Any delays in the Council’s response to the complaint

Publicity

47. I find fault in the Council not properly notifying Mr X of the variation of conditions application.
48. There is no statutory difference between the publicity requirements for a variation of condition application and a full planning application. An application to vary conditions is an application in its own right and is separate to the procedure for discharging planning conditions.
49. The Council did, strictly speaking, comply with the statutory requirements by placing a site notice. It either needed to do this or send a notification letter, not both. However, in practice councils will often do both.
50. The Council’s policy suggests in nearly all applications it will send notification letters to adjoining properties. It is not clear why it did not do so in this case.
51. I also note the Council sent a notification letter to another neighbour but not Mr X. The Council has not explained why it applied its policy inconsistently in this respect. It is therefore my view that not sending a notification letter to Mr X was fault.
52. The impact is that Mr X did not see the site notice and so did not know the application was being considered. If he had known about the application, he would no doubt have reviewed the plans. It is possible, although not certain, that Mr X would have noticed the bollards on the plan and objected to these. If he had objected, the Council would have known to consider the bollards. This adds to the uncertainty I have identified in the following paragraphs, about what conclusion the Council would have reached if it considered the bollards.
53. I understand the Council said it should have consulted Mr X on the discharge of condition application. However, I am not aware of any statutory requirement or government guidance that says a local planning authority should consult third parties on discharge of condition applications. I therefore do not find fault in the Council not consulting Mr X about the discharge of conditions. In any case, the lighting bollards were given planning permission in the variation of condition application, not at the discharge stage.

The lighting bollards

54. In the Council’s response to Mr X’s complaint it said the lighting bollards gained consent when it approved the discharge of condition application in January 2018. It says the bollards were part of the hard landscaping plan.
55. This is not correct. The bollards gained planning permission when the Council approved the amended plan during the variation of conditions application in September 2016. The Council now accepts that it missed the bollards and should have considered their impact on Mr X’s amenity.
56. I can see why the officer missed the bollards as they are not obvious, and the applicant did not draw the Council’s attention to the change. However, they were visible on the plan and it is fault that the Council did not consider their impact on Mr X’s amenity.
57. The Council says its most normal approach, had it noticed the bollards, would have been to impose a condition requiring specification of the lights and a lighting assessment. It also says it could have used planning conditions to modify or control the type of lighting to reduce the impact on neighbouring properties. The Council does not accept it would have prevented the bollards all together. This does appear to be in line with its policy as set out at Paragraphs 14 and 15.
58. The Council makes the point that it has assessed whether the bollards cause a statutory nuisance. Its environmental health officer found the bollards did not have any greater impact than ordinary street lighting. Mr X contests this. He also says that statutory nuisance is a high bar and any decision about statutory nuisance cannot be compared to a decision about the impact on Mr X’s amenity.
59. I agree with Mr X that, simply because the light does not amount to statutory nuisance, does not mean it does not impact on Mr X’s amenity in planning terms. However, the environmental officer’s findings are relevant to the overall level of injustice and my recommendations, which I have considered at Paragraphs 74 to 82.
60. Ultimately, I cannot say whether, but for the fault, the Council would have granted planning permission for the bollards in their current form. It almost certainly would have imposed a condition requiring a lighting assessment. It would have need to consider whether the bollards complied with its policy, whether they impacted on Mr X’s amenity and may have used a condition to alter the design of the bollards or to restrict timings of their use. I accept it is unlikely the Council would not have allowed the bollards at all.
61. The injustice to Mr X is the uncertainty about what difference it would have made, had the Council properly considered the lighting bollards.

Discharge of conditions application

62. The planning officer said in one document that he recommended partial approval of the landscaping works proposed by the applicant. He also noted ‘details required’ in relation to the lighting bollards. However, on the same day the officer then approved the application. In doing so, the officer explained he could not formally discharge the condition, but he approved the works.
63. I find fault by the Council because, having signalled a need for further detail, the officer did not then seek the detail from the applicant. It is unlikely this would have made any difference to the discharge application as the bollards had planning permission and did not need to be discharged as part of the hard landscaping. However, further investigation at this point would have drawn the Council’s attention to the error. It may then have changed how the Council managed this issue and its responses to Mr X’s complaints going forward.

Complaint responses

64. I find there was delay by the Council in responding to Mr X’s complaint at both stages of its complaints process.
65. In the Stage 2 response the Council said that, because it did not consult on the discharge of conditions, it was willing to contact the owner and investigate the potential to install some form of cap or hood over the lights. This was to help reduce their impact and direct light away from Mr X’s property. Mr X says the Council has not done this.
66. I note the Council asked Mr X to let it know if he wished for it to go ahead with this course of action. Mr X then arranged to speak to the author of the Stage 2 report but was not satisfied with the outcome of this and raised his complaint again with the Ombudsman.
67. Emails from Mr X to the Council show he chased on more than one occasion for an update on how the Council was proceeding with its offer. There is no evidence the Council responded to this or contacted the owner. This is fault.
68. I consider a financial remedy is warranted in this case. I recommend a time and trouble payment of £100 to Mr X to reflect his understandable frustration with the delays and the unnecessary time and trouble he was put to in chasing matters with the Council. I understand the Council has, following the Ombudsman’s previous decision, already paid this amount to Mr X. Therefore, I have not included this in the recommended remedies section.

Consideration of Remedy

Apology

69. I recommend the Council apologise to Mr X for the fault identified. This includes:
• Not sending a notification letter for the variation of conditions application
• Not considering lighting bollards and their impact on Mr X’s amenity
• Not seeking further detail about the lighting bollards before discharging the conditions
• Delays in responding to Mr X’s complaint

Revocation/modification

70. Mr X says the Council could revoke the planning permission. I do not agree this is now possible. The construction of the bollards is complete and therefore the Council cannot take any action under s97. The Council could consider its powers under s102.
71. However, it is very rare that a council will seek a revocation or discontinuance order and only in exceptional circumstances. It is not a remedy that we would normally recommend. The injustice I have found in this case is limited and therefore is not one where I would consider recommending the Council exercise its powers under Section 102.

Mitigation

72. We can, if appropriate, recommend the Council take steps to mitigate the impact of any fault. For example, if it was clear that, but for the fault, the Council would not have allowed something that impacted on a person’s privacy, we could ask it to contribute to the cost of putting up screening.
73. Here, I cannot say whether, but for the fault, the Council would have allowed the bollards as they are. Only that there is uncertainty around this. It is also difficult to know what steps the Council could take to mitigate any impact on Mr X. There is already a garden fence between his property and the car park.
74. Any effective mitigation would need to be in the form of changes to the lights themselves. The Council cannot enforce any changes as the lights already have planning permission. However, it did offer to contact with the owner and investigate the possibility of installing caps or hoods. Given that this is something the Council has already offered, and does not appear to have happened, I recommend it does contact the owner in this respect.
75. Again, Mr X will need to be aware that I can only recommend the Council contact the owner. Neither I, nor the Council, can enforce any changes to the lighting design.

Financial redress

76. The main injustice I have identified to Mr X is uncertainty about what difference it would have made to the lighting, had the Council consulted him and considered the bollards. Uncertainty is a form of distress. We will normally recommend between £100 and £300 to recognise any avoidable distress caused.
77. The Council has offered to pay Mr X £150 to recognise the distress caused. I have therefore considered whether I would recommend anything significantly different from this.
78. I understand that to Mr X the lighting has a significant impact on the enjoyment of his property. However, I have to consider all of the factors involved. This includes that the Council’s environmental health officer did not believe the lighting had a greater impact than ordinary street lighting. Also, the Council’s comments that the building’s windows emit a lot of light and the bollards must be seen in this context. I accept that context is relevant to any planning application.
79. Any planning conditions that altered the design might have meant some change to the level of light shining into Mr X’s home. However, there would still have been some light spill, as there is already from the windows.
80. I also note that Mr X has provided timings for when the lights are on. He says that three days a week lights are turned off at 18:00 and two days a week at 19:30. This is around the time the business closes. This means the lights do not remain on at overly unsociable times of night and it is unlikely planning conditions would have restricted use to earlier times than this.
81. All these factors limit the level of injustice I can find, and for that reason, I do not consider I would recommend anything substantially different to the £150 the Council has already offered.
82. Mr X is supported in bringing the complaint by a planning solicitor. He asks that we recommend the Council reimburse the professional fees he has incurred bringing the complaint.
83. Complainants do not normally need a professional advisor to help them make a complaint to the Ombudsman. We are unlikely to recommend reimbursement of fees, unless there are exceptional circumstances, the matter is highly complex and the costs flow directly and necessarily from the fault. It is not my view that this is the case here.
84. I understand the case has involved some confusion about technical points of planning law. The Council’s complaint response added to this confusion. However, the underlying fault is that the Council did not properly consult Mr X, did not notice changes to the approved plan and did not consider the impact on Mr X’s amenity. This is not out of line with complaints we regularly receive. I therefore do not recommend any reimbursement of professional fees.

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Agreed action

85. The Council has agreed to, within a month of this decision:
• Apologise to Mr X for not sending him a notification letter, not considering the impact of lighting bollards on his amenity, not seeking further information before discharging the conditions and for delays in responding to his complaint.
• Provide evidence it has contacted the owner of the business and explored/informally negotiated any measures it could take to mitigate the impact of the lighting, for instance adding caps or hoods to the lights
• Pay Mr X £150 to recognise the distress caused.

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Final decision

86. The Council is at fault in how it managed the planning procedure and in its response to Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman