Summary: The Ombudsman found no fault on Mr E’s complaint about the Council failing to properly consider a full planning application it granted consent. The Council properly considered the application. His complaint about its handling of an earlier application for outline consent was not investigated because it was late.

The complaint

1. Mr E complains the Council failed to properly consider 2 planning applications it made and approved for the erection of adapted bungalows on its land near to his home. As a result, his amenities are adversely affected, it caused him stress, and pursuing these issues was time consuming.

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What I have investigated

2. I have not investigated any complaint Mr E has about the way the Council decided the outline planning application in 2017. The paragraph at the end of this statement explains why.

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The Ombudsman’s role and powers

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)
4. 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)
5. 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. 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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Council development plan policies

7. Developers are required to provide open space in association with housing development. (Policy OS1.1)
8. When deciding planning applications for residential development, the Council will consider various standards when assessing the appropriate amount and distribution of open space required as a result of the proposals. Local open spaces standards are 1.2 hectares for every 1,000 people. Most households should be within 0.5km of a public park of 6 hectares minimum. (Policy OS1.2)
9. Development causing demonstrable harm to any public open space will not be allowed. Harm includes loss of the space in whole or part. Development will only be allowed in exceptional circumstances according to Policy OS1.5. Harm is assessed according to the impact on the value of the open space for stated purposes which includes informal or casual recreation, as well as children’s play. (Policy OS1.4)
10. The exceptional circumstances include (Policy OS1.5):

• It is for recreational purposes relevant to the use of the space;
• For new or improved essential local community facilities for which there is no suitable alternative site;
• The only means of retaining or enhancing the open space is through the development of a small part; and
• Alternative provision of equivalent community benefit is made available.

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How I considered this complaint

11. I considered all the information Mr E provided, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr E and the Council.

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What I found

12. To the rear of Mr E’s house is an area of open space. The Council considered and approved 2 planning applications for the development of this land. One was for outline planning consent (application 1). The other was for full planning consent (application 2). For both, the applicant was the Council’s Fairer Housing Unit (the unit) which wanted consent to build several specialised bungalows. The plans show about a third of the site would contain the bungalows while the rest would remain open space.
13. Mr E is unhappy with the way the Council considered application 2. I now consider each of his complaints:

Analysis

Representations

14. Mr E claims the planning officer’s report failed to summarise and comment on all his representations.
15. I have seen a copy of Mr E’s representations. These include: loss of amenity space; lack of available accessible alternative space/park; a failure to consider alternative sites; risk from previous mining activity; and the design of what was proposed.
16. I read the report which explained the number of representations received and gave a link to them. It referred to representations received about traffic, high levels of air pollution, congestion, and parking issues. It also referred to representations from councillors which included looking at alternative sites, particularly brownfield sites, and it being contrary to the Council’s open space policies. It listed the Coal Authority as a body consulted.
17. The report listed the main relevant issues the Council needed to consider. These included the principle of the development, its design, layout, visual impact, the provision of open space, and residential amenity. The report considered each of these issues.
18. Having read the report, I found no fault on this complaint. This is because:
1. I am satisfied the planning officer’s report summarised all the representations Mr E made. While the summary did not refer directly to his representations about design, this was considered later in the report under the heading, ‘Design, Layout, and Visual Impact’.
2. The report considered the impact of the development on open space. It noted:

• The development proposed took up less area then proposed in application 1;
• The site’s allocation as ‘open space’ under policy OS1.6;
• The National Planning Policy Framework’s view of the importance of providing high quality open space and not building on them unless exceptions applied (paragraph 74);
• The presumption against loss of open space (policy OS1.4) although loss is allowed in exceptional circumstances (Policy OS1.5);
• The proposal failed the exception tests, but the report considered the Open Space Assessment. This noted a surplus of this type of open space (amenity green space as defined in its Unitary Development Plan). It noted only part of the site would be used. While there was a shortfall of parks, recreation grounds, and youth play areas, these were not possible uses for this site because of the closeness of residents’ houses. Access from this area to parks was good and it noted one park, because of boundary changes, was now in the same ward. It noted residents can access local parks, play areas, and other open space areas all within walking distance of the site. Its partial loss was only a slight reduction of area per 1,000 population. In addition, the assessment concluded that rather than an exception under its policies, the development should be considered as a ‘departure’ from them because of the wider benefits these specialised bungalows would help deliver in terms of the city’s housing needs;
• The planning officer’s report set out the policies for open space in some detail and concluded that, having considered the consent under application 1, the proposal met guidance despite a slight reduction below the standard set out in OS1.2;
3. The report considered the design of the proposal and decided it agreed with the design limits set at the outline stage which meant it likely the reserved matters for the application 1 could be implemented;
4. The report considered the impact of the proposal on residential amenity. It looked at the distance to nearby properties, overlooking, privacy, and light for example. It accepted some residents would now have their view across the open space restricted;
5. The report also considered its impact on highways, parking, and transportation. It looked at the current lack of turning facility for some residents/delivery drivers and the proposed turning facilities for this application;
6. The report considered the risk of noise, pollution, land instability, and contamination. Any works required by the Coal Authority could be secured by condition and it noted Public Safety and Regulation raised no concerns about contamination;
7. The report considered other concerns raised by residents including air pollution. It noted part of the site will be kept and enhanced for informal recreation;
8. The minutes of the planning committee meeting also show councillors considered the quality of open space, for example; and
9. The police architectural liaison officer raised no objections to the proposal.
10. I am satisfied the Council properly considered Mr E’s representations and those received from other residents. While his concern about security was not listed in the summary of representations received, the police architectural liaison officer raised no objection about it. In the absence of fault, the Ombudsman may not challenge the merits of a properly taken decision.

User survey

19. Mr E complains the report failed to refer to a resident user survey submitted.
20. In response, the Council noted the report summarised representations and gave a link to relevant submissions. Objectors also had the chance to make representations during the meeting. The link to all representations was given in the planning officer’s report.
21. The minutes of the planning committee meeting show an objector made representations which included the failure to refer to the survey which provided evidence of the value of open space for residents.
22. While the report did not specifically refer to the survey, it did refer to receiving representations from the group who submitted it. I am satisfied the report considered, in some depth, the potential impact of the loss of this open space. I found no fault on this complaint.

Bias

23. Mr E complains the Council was biased about the application. He notes for example that application 1 and 2 were dealt with by the same officers. He claims the applicant was involved in amending both applications;
24. In response to my enquiries, the Council confirmed the applicant had no input in to the preparation of the planning officer’s report.
25. The Council provided a copy of a representation it received which claimed the applicant had an active role in preparing the committee report for application 1. As the same officers prepared a report for application 2, Mr E claimed this was evidence of bias in favour of the applicant. He argued this meant the Council failed to give proper weight to the harm the application will cause.
26. I found no evidence of fault on this complaint. I have seen copy emails Mr E claims were between the applicant and planning officers although some contact details were redacted. This correspondence appears to be about application 1, which I have not investigated.
27. It is not unusual for officers to deal with an outline application as well as any reserved matters application or full planning application later received. This is hardly surprising considering the size of some planning departments. It is also sensible for councils to allocate applications to officers who were involved with previous applications and who had, therefore, some existing knowledge of the site and issues. Nor is it unusual for officers and applicants to have contact during the lifetime of a planning application. Indeed, the National Planning Policy Framework encourages pre-application discussions between officers and applicants.

Previous consent

28. Mr E argued the report incorrectly said consent on application 1 should have significant weight when the planning committee considered application 2. He believes this incorrect as he argued the consideration of application 1 was flawed because it failed to consider a Council planning policy about access to parks (policy OS1.2). He threatened to take judicial review proceedings against the Council but took no further steps after sending an initial letter threatening to issue proceedings.
29. The planning officer’s report set out the history of the site. This included a reference to consent under application 1 granted the previous year. The report noted the layout, detailed appearance, scale, and landscaping were reserved for approval. As it can be implemented, the report stated this should be given ‘considerable weight’. This was because the applicant could apply for the approval of reserved matters which if approved, could then be implemented.
30. The report noted representations raised concerns about flaws in application 1.
31. I found no fault on this complaint. The report correctly set out the planning history for this site and noted consent on application 1 had considerable weight. The Council had already granted consent for the principle of a similar proposal. While Mr E considers the Council failed to properly consider application 1, I did not investigate this complaint for the reason set out at the end of this statement.

Trees

32. Mr E complains the application failed to give details of the trees that needed felling. The Council pointed out the planning committee visited the site and were, therefore, aware of which trees needed felling. The report referred to the number of trees and extensive new tree planting through planning conditions. The arboricultural report sets out the size, species, and value of the trees.
33. I have seen a copy of the aboricultural impact assessment. This surveyed the trees on land within the site. It noted there were a small number of trees on site, none of which were subject to tree preservation orders or within a conservation area. The plans show the retention of 4 trees on site with about 47 new trees planted overall.
34. The planning officer’s report considered Council policies that seek to retain and enhance trees and hedgerows. It also noted the proposal aimed to retain most of the trees on site especially on its southern boundary. It would also include additional planting of trees, shrubs and hedgerows which the Council could secure by condition. The report concluded it met the requirements of the National Planning Policy Framework and its own planning policies.
35. I found no fault on this complaint. The Council correctly assessed the impact the proposal would have on the trees on site. It was also aware of the need to remove trees but, any impact in doing so was reduced by the tree planting scheme.

Alternative sites

36. Mr E complains the Council failed to consider alternative sites for this proposal.
37. In response to my enquiries, the Council confirmed it was not a material planning consideration on which it could refuse consent. Suggestions made by objectors for alternative sites were referred to in the report which explained why these were not appropriate.
38. I found no fault on this complaint. The Council was required to decide the application submitted. The application was to develop this site and the Council was obliged to consider the application as presented.

Final decision

39. The Ombudsman found no fault on Mr E’s complaint against the Council.

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Parts of the complaint that I did not investigate

40. I did not investigate any complaint Mr E had about the way the Council decided the outline planning application. This is because I saw no good reason to investigate this late complaint now. I am satisfied Mr E became aware of the Council’s actions on this application when it was granted in 2017 because he sent a pre-action protocol letter to the Council about it a few weeks after the decision. Although he did not pursue legal proceedings against the Council, what this shows is an awareness of the decision and any areas of concerns he had about it.

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Investigator's decision on behalf of the Ombudsman