Wokingham Borough Council (19 010 484)

Category : Planning > Other

Decision : Not upheld

Decision date : 10 Mar 2020

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision to install higher lampposts on its land, because it affects his amenity. There was no fault in the way the Council made its decision.

The complaint

  1. Mr X lives next to land owned by the Council. He complained the Council fitted lampposts on its land with much higher replacements. Mr X says that the new lighting is in breach of a planning condition the Council imposed when the original development was approved several decades ago.
  2. Mr X says the higher lampposts have an adverse visual impact on his amenity. He also complained about height restriction gantries to a car park.

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The Ombudsman’s role and powers

  1. 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)
  2. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

  1. 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 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 planning decision and the case officer’s report from the original planning approval.
  2. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

  1. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • access to the highway;
    • protection of ecological and heritage assets; and
    • the impact on neighbouring amenity.
  3. Planning considerations do not include things like:
    • views over another’s land;
    • the impact of development on property value; and
    • private rights and interests in land.
  4. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards. A planning condition can be varied or removed by a separate application.
  5. 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’.
  6. Development that might otherwise qualify as permitted development, will still need planning permission if it is carried out with other works that do require permission. When approving planning applications, councils may impose planning conditions to remove future use of permitted development rights, if they deem it necessary to do so.
  7. Planning enforcement action is subject to statutory time limits. A council may not take planning enforcement action in the following circumstances:
    • there was development on, over or under land without permission, no enforcement action may be taken after four years from the date of the breach;
    • there was a change of use of a building to a use as a single dwelling house, no enforcement action may be taken after four years from the date of the breach; or
    • for any other breach, no enforcement action may be taken after 10 years from the date of the breach.
  8. Though councils may consider and approve planning applications for their own developments, they cannot take legal action against themselves. However, we expect councils to deal with planning matters relating to their own developments and apply the same standards of protection as they would any other development. Where professional planning officers consider that harm is caused by a breach of planning control, the council should take appropriate steps to remedy the breach.

What happened

  1. Mr X lives next to land owned by the Council. The Council wanted to develop the land and sought planning permission to do so. As the Council was making a planning decision on its own proposal, the application was referred to the Secretary of State, who had the power to make the decision if this was considered appropriate.
  2. The Council approved the application subject to a planning condition that controlled on-site lighting. The condition required that details of the lighting, including position, height and design, should be submitted to the Council and approved in writing before it was installed.
  3. Many years later, the Council replaced the lampposts on its land with much higher ones. Mr X complained to the Council and was at first told that the replacement lights were approved by planning permission, but later told that the development was carried out under permitted development rights.
  4. The Council referred Mr X to permitted development regulations that allow it to carry out works to erect, construct, maintain or improve small buildings or structures, including lamp standards and similar structures or works.
  5. Mr X says he complained to a Councillor, who agreed the new lights caused a problem to his amenity and suggested that those nearest him should be lowered. However, the Council did not agree to carry out this work. Mr X then complained to us.

My findings

  1. We are not an appeal body, and in the absence of fault in the process, we cannot agree or disagree with the day-to-day judgements councils make. Our role is to review the process by which planning decisions are made. If we find fault, we may then recommend a remedy for any injustice it causes.
  2. In this case, I need to decide whether there was fault in the way the Council made its decision to install the new lampposts.
  3. The original condition requires for details of the lampposts to be submitted in writing and before it is installed. The condition does not require the lamps to be maintained for any period, thereafter.
  4. I have seen no evidence to suggest there was a breach of this condition. There are no conditions in the original approval that remove permitted development rights.
  5. Because of this, the Council was entitled to use its permitted development rights without going through either the planning application or planning condition variation process. The lamp standards are specifically mentioned in the regulations, but the gantries are not. However, the list in the regulations is not exhaustive and includes a catch-all for ‘similar structures or works.’
  6. I see no reason why a gantry should not be within the scope of the regulations. In any event, before we investigate, we need to be persuaded that any fault has the potential to cause significant injustice to the complainant. I do not consider that Mr X is significantly affected by the gantry to the car park.
  7. Because the Council was entitled to use its permitted development rights, I find no fault in the way it made its decision.

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Final decision

  1. I have completed my investigation because there was no fault in the way the Council made its decision.

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Investigator's decision on behalf of the Ombudsman

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