Summary: Mr C complains about the Council’s consideration of a retrospective planning application for change of use for paintballing. Mr C says he suffers from excessive noise and floodlighting from the site which also causes problems on the access lane. The Ombudsman has found no evidence of fault by the Council in its consideration of the application.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains about the Council’s consideration of a retrospective planning application for change of use for paintballing with ancillary buildings and structures. Mr C says because of the Council’s fault he suffers from excessive noise and floodlighting from the site. Mr C also says the access lane is dangerous for walkers and horse riders, often in poor condition and passing is difficult because of inadequate passing places and the level of traffic generated.
2. Mr C also complains the Council failed to investigate properly and take appropriate action in response to reports about unauthorised activities at a paintball site for more than 15 years.

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What I have investigated

3. The complainant, whom I shall refer to as Mr C, complains about the Council’s consideration of a retrospective planning application for change of use for paintballing with ancillary buildings and structures. Mr C says because of the Council’s fault he suffers from excessive noise and floodlighting from the site. Mr C also says the access lane is dangerous for walkers and horse riders, often in poor condition and passing is difficult because of inadequate passing places and the level of traffic generated.
4. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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)
7. 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)

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How I considered this complaint

8. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.

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What I found

Background and legislation

9. The general power to control development and use of land is set out in the Town and Country Planning Act 1990.  Permission is required for any development or change of use of land and may be granted by a Local Planning Authority or deemed to be permitted if it falls within the limits set out in Permitted Development regulations.
10. Planning permission may be granted subject to conditions relating to the development and use of land and/or a legal agreement to make otherwise unacceptable proposals acceptable in planning terms.
11. All decisions on planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. It constitutes guidance in drawing up plans and is a material consideration in determining applications.
12. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
13. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. General planning policies may pull in different directions for example in promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
14. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. Section 171A of the Town and Country Planning Act 1990 provides a breach of planning control as:

• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted.

15. The planning authority may invite a retrospective application to regularise development which has already been undertaken. Any such an application must be considered in the normal way.

Key events

16. The Council received a retrospective planning application for a change of use for an area of woodland for paintballing activities.
17. The case officer’s report to the Council’s Planning Committee explains the application was retrospective and permission for paintballing at the site was refused in 1995 but it was granted temporary permission in 2000 for 42 days a year. The previous permission expired in 2003 and the Council received no further applications.
18. The case officer’s report outlines the size and relationship of the site to the nearest residential properties, public rights of access and road access and provides a summary of the representations received. These included objections about noise and traffic issues. The report provides an assessment of the material planning considerations and recommended approval subject to conditions. The report confirmed there was no objection from Environmental Health about the proposed use given the distance from the nearest residential properties. It was noted Environmental Health had received a report of noise at the site in 1998 and two reports in 2017 which did not result in further action.
19. The suggested conditions included a restriction on the hours of use for paintballing activities to 8.30am to 5pm Monday to Fridays and 8.30am to 4pm on Saturdays or Sundays. The reason provided for the condition was to ensure paintballing activities were restricted to daylight hours to safeguard wildlife habitats and night-time foraging. The Planning Committee deferred a decision so that it could complete a site visit.
20. The Committee considered an updated report from the case officer following its site visit. This included additional objections about noise and disturbance to neighboring properties. The case officer advised the applicant had agreed to an additional condition restricting the use of the site to a maximum of 150 days a year. The late item report to the Committee also included the detail of further objections received and the recommendation that the use of the site additionally be restricted to a maximum of three days in any one week and to amend the start time to 9pm.
21. The Council has explained the change to the condition was made following additional comments from the local ward member. The local ward member raised concerns to the case officer that the use could be undertaken seven days a week until the maximum 150 days was reached. Following this discussion, the condition was amended to include the restriction to three days a week to avoid the use being undertaken up to seven days a week. The Planning Committee discussed this condition at the meeting and considered four days a week was more appropriate than three. Members discussed allowing flexibility for the business for four days but also added that these four days should not run consecutively across two weeks (ie no more than four consecutive days use at any time). Following this discussion, the Planning Committee amended the relevant condition to read four consecutive days.
22. The Committee resolved to grant planning permission subject to the planning conditions contained in the case officer’s report. It was noted the final detail of those conditions would be delegated to the Council’s Interim Head of Planning.
23. The decision notice contained various conditions including the use of the site for paintballing activities being restricted to 9.15am to 5pm Mondays to Fridays and 9.15pm to 4pm Saturdays and Sundays. It also contained the condition restricting the number of days to 150 days in any one calendar year with the use not carried out on more than four days in any one week (Monday to Sunday) and that the four days could not run consecutively across two weeks (ie no more than four consecutive days use at any time).
24. Although the condition restricting the times of paintballing activities at the site was to ensure use was restricted to daylight hours, Mr C says the site is floodlit well into the evening. The Council has confirmed that no floodlighting details were submitted with the application for consideration. The only reference to external lighting was in the planning statement submitted with the application which stated “The operation requires very limited external lighting, with this being restricted to providing illumination of the base camp for short periods of time during the winter months to enable staff to clear up after a day’s play and to pack up and secure the various items of equipment. The lighting is focussed on the base camp area and is not visible from long range”. The Council says a condition could not be worded to restrict the use to daylight hours as this would not meet the six tests for planning conditions as it would not be precise or easily enforceable. Therefore, specific times were given which allowed the condition to meet the relevant tests. I see no fault here. The Council confirmed the hours of use are restricted by the condition which limits the use of the site to the specified hours. If the site is used for paintballing activities outside the hours specified the business would be in breach of this condition which could result in enforcement action.
25. Mr C also questioned the treatment of the County Council’s Highways comments. The Highways Authority provided further comments which altered its previous advice. The Authority recommended a condition relating to passing bays in the interests of highway safety. The case officer’s report to the Planning Committee of the same day records no objections from the Highway Authority and this information was not included in the late item update. The Council confirmed the timing of the emailed comments from Highways and that the late item report had already been published. The case officer provided a verbal update at the meeting about this request. This is reflected in the minutes and in the resolution which gives delegated authority to the Interim Head of Planning in consultation with the chairman of the Planning Committee and spokesperson for the opposition to impose a condition as requested by the Highways Authority if considered appropriate.
26. Following the decision of the Planning Committee, the case officer, team leader and Interim Head of Planning liaised with the County Council Highways to discuss the requested condition submitted on the day of the Committee. These discussions concluded the proposed condition would fail the tests with which conditions must comply and so Highways would not seek to refuse the application based on the submitted information. Following this confirmation, a meeting was held with the chairman of the Planning Committee and the spokesperson for the opposition where both agreed not to include a highways condition on the decision notice as a result of the County Council’s comments. Following this meeting, the Council issued the decision notice.
27. Based on the information provided, I have seen no evidence of fault in the way the Council reached its decision to grant planning permission. I am satisfied the Council’s Planning Committee had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so. The Council has provided the record of the subsequent discussions and advice about the suggested highways condition which were in accordance with the Committee’s resolution.
28. Mr C has advised the Ombudsman during my investigation that he has noted breaches of the planning conditions and reported these to the Council. This is a matter he would need to pursue with the Council in the first instance. If Mr C is unhappy with the Council’s response to his reports, he would need to make a formal complaint to the Council. If Mr C remained unhappy following the outcome of the Council’s complaint procedure it would be open to him to make a new complaint to the Ombudsman.

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Final decision

29. I have completed my investigation as I have found no evidence of fault by the Council.

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Parts of the complaint that I did not investigate

30. I have not investigated the part of Mr C’s complaint that the Council failed to investigate properly and take appropriate action in response to reports about unauthorised activities at the paintball site over the previous 15 years. This is because this part of Mr C’s complaint is caught by the restriction outlined at paragraph 7 above.

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Investigator's decision on behalf of the Ombudsman