Summary: Mr X complained the Council failed to impose a planning condition to require a vehicle turning space on land over which he has a right of access. We found fault because the Council cannot show it properly considered an existing planning condition. The fault has resulted in difficulties for Mr X when manoeuvring his car. Because of this, we recommended an apology and a review of procedures to avoid recurrence of the fault we found. The Council has agreed to our recommendations.

The complaint

1. Mr X complained the Council failed to impose a planning condition on his neighbour to require a vehicle turning space on land over which he has a right of access.
2. Mr X said that highways access conditions had been required when the Council had approved previous applications, because the Highways Authority had said this was necessary to ensure vehicles can access the highway in a forward gear.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an organisation’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)
5. We have discretion on whether to investigate late complaints. 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)

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How I considered this complaint

6. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and case officer reports.
7. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Planning law and guidance

Planning applications

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Permitted development

12. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.
13. Some permitted development proposals require an application so the council can decide whether it can or should control certain parts of the development, such as design and materials issues or access to the highway. These applications are known as ‘prior approval’ applications.
14. It is possible to change the use of an office to a dwelling house under permitted development regulations. The applicant must apply to the council who can determine if prior approval of certain matters is required. These include:
• transport and highways impacts;
• contamination risks; and
• flooding risks.

Case officer reports

15. Details of how a council considered an application are usually found in planning case officer reports. The purpose of a case officer report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
16. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues;
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.

Openness in Local Government Regulations

17. Decisions made by officers using delegated powers are controlled by the Openness of Local Government Bodies Regulations 2014. The 2014 regulations require that certain decisions and their background papers are publicised on council websites, as soon as is practicable after the decision is made.
18. The 2014 regulations apply to a decision that has been delegated to an officer, if it:
• grants a permission or licence;
• affects the rights of an individual; or
• awards a contract or incurs an expense that materially affects the council’s financial position.
19. The 2014 regulations require that any such decision should be made available to the public:
• at the council offices;
• on the council’s website, if it has one; and
• by any other means the council considers appropriate.
20. The written records should include the following information:
• the date the decision was made;
• the record of the decision, its reasons and the background papers relied on;
• details alternative options, if any considered and rejected; and
• a record of any relevant conflict of interest.

What happened

21. Mr X owns a house that has a parking space which is accessed by a narrow track. Mr X said the parking space belongs to him, and his property benefits from a legal agreement (an easement) that gives him the right of vehicular access to it.
22. More than 30 years ago, a Planning Inspector allowed an appeal for a new house on land behind and at the side of Mr X’s property. The Council subsequently granted outline and reserved matters approvals allowing a new house subject to planning conditions.
23. The Highways Authority recommended planning conditions to ensure that vehicular access, parking and turning arrangements for both the new and existing houses, were permanently maintained exclusively for that use. The approved plans included turning space, so vehicles can enter the highway in a forward direction.
24. Several years ago, the owner of a building used as an office, at the side of Mr X’s house, sought prior approval to change its use to a dwelling under permitted development regulations. The area edged in red for this prior approval application included some of the land used for parking and turning that was the subject of highways access conditions in the outline and reserved matters approvals. These conditions were still enforceable at the time the prior approval decision was made.
25. The Council approved this application but did not repeat the parking and highways access conditions imposed by the earlier approvals.
26. I read the case officer report for the prior approval application. The report has a planning history section, but it does not mention the planning inspector’s decisions or the Council’s decisions on the outline and reserved matters applications. There is no mention of the highways and access conditions imposed by these earlier approvals.
27. The report does include a comment from the Highways Authority that it has no concerns. The plans also show how the parking space and turning area was laid out. However, there was no information to indicate that:
• this area could be enclosed to make a garden; or
• the parking and turning area required by existing planning controls would be lost.
28. The office was converted to a house and eventually sold. Before it was sold part of the land was enclosed to create a garden on land that was once used for parking and turning is no longer accessible. Other parts of the turning area, outside the fenced off garden, are often now used for vehicle parking and so also not accessible.
29. Mr X complained to the Council about what had happened because. He said the fence made it very difficult to manoeuvre his car, and it now takes several movements to turn his car around to face the highway. He asked the Council why it had not imposed the highways conditions.
30. The Council responded to say the officer who dealt with the prior approval application no longer works for the planning authority and so it was unable to answer his question or explain the rationale for its decision. The Council accepted that it could have imposed a similar condition.

My findings

Our 12 month time limit

31. This complaint includes matters that happened long before our 12 month time limit. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12 months from when events occurred, or the complainant could have known about them. We have discretion to go back beyond this limit, but would need a good reason to do so.
32. We may investigate late complaints or complaints that relate to matters that occurred long ago, if:
• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision, and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.
33. About 30 years ago, the Council approved an application subject to a planning condition that controlled parking and access arrangements. Even though this decision was made long ago, it was still enforceable when the Council approved a prior approval application for the change of use of the land, several years ago.
34. Mr X became aware there was a problem when a fence was erected across a large part of the parking and turning area. He complained to the Council and, earlier this year, it explained what had happened.
35. I decided to investigate this complaint because Mr X only became aware of what had happened when the Council responded to his complaint. I consider there is enough information for me to make a judgement on whether there was fault in the decision-making process leading up to the prior approval decision that allowed the change the use of the land.

The prior approval decision

36. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
37. We expect councils to keep adequate records of their decisions, including sufficient evidence of reasons relating to the main planning considerations. I would have expected the Council’s records to include an analysis of the main planning considerations, including:
• relevant planning history, which I would have expected to include the planning inspector’s decision and its own decisions on the outline and reserved matters applications; and
• existing conditions that applied to the land, including the highways access, parking and turning provisions in the outline and reserved matters approvals.
38. The case officer report for the prior approval application does not mention these issues and this is fault.
39. Where we find fault, we must determine whether it caused an injustice to the individual complainant. We may also consider whether the Council should take any steps to avoid recurrence of the fault.

Injustice caused by fault

40. The Council originally considered it necessary to impose the condition to allow vehicles to enter the highway safely, but it has not provided any evidence that suggests the turning area is no longer needed.
41. I accept that because of what has happened it is now more difficult for Mr X to manoeuvre his car. It is possible the Council might have reimposed the highways conditions from earlier approvals.
42. I made recommendations that might result in improvements and avoid recurrence of the fault I have found. The Council agreed to my recommendations.

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Agreed action

43. To remedy the injustice caused by the fault I have found and to reduce the chance of it happening again, the Council has agreed to:
1. apologise to Mr X for the disappointment the fault has caused him. This will happen within two weeks from the date of this decision;
2. review what has happened and decide whether changes to practice and procedures or further officer training are necessary to avoid recurrence of the fault I have found. The review will be completed within three months of the date of our final decision.
3. report the outcome of the review to the Ombudsman. This should happen within one month of the date the review is completed.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I found fault that caused an injustice, which the Council has agreed to remedy. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman