Rushcliffe Borough Council (20 000 218)

Category : Planning > Other

Decision : Not upheld

Decision date : 02 Feb 2021

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s actions when considering a planning application for a development near to his home. He says the Council’s actions were confusing to the public and resulted in planning permission being granted for an unsuitable building for the area. We find no fault in the Council’s actions and have concluded our investigation.

The complaint

  1. Mr X complains about the Council’s actions when considering an application for planning permission for a development near to his home. He complains:
  • The Council produced several public notices about the planning application at different times, and with different deadlines for comments;
  • The Council wrongly compared the planning application to a previous application which had been granted, and
  • The Council failed to properly consider the application and objections to it.
  1. Mr X says the Council’s actions were confusing to the public and resulted in planning permission being granted for an unsuitable building for the area.
  2. Mr X also complained about a later application to modify the approved application. He also complained the applicant provided contradictory or ambiguous information to the Council.

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What I have investigated

  1. I have investigated the complaints listed at paragraph one. The final section of this statement contains my reasons for not investigating the complaints listed at paragraph three.

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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. 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 have considered Mr X’s complaint and the information he has provided.
  2. I have made enquiries to the Council and considered the information provided by it.
  3. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Planning applications

  1. The law says councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate otherwise. 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.
  2. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application. A council must be able to show it has considered the material planning considerations that are engaged by the planning process. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
  3. Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission. A senior planning officer will then decide most applications, but some go to the council’s planning committee for councillors to decide the application.
  4. The Ombudsman will consider whether the decision-makers had enough information in front of them to make an informed decision.
  5. Policies and the supplementary planning document must be taken into account but are not to be treated as if they create binding rules.

The Council’s policies

  1. The Council’s Conservation Area Appraisal and Management Plan says:

“Planning permission for development […] within a designated Conservation Area […] will only be granted where:

        1. the proposal would preserve or enhance the character or appearance of the Conservation Area by virtue of its use, design, scale, siting and materials;
        2. there will be no adverse impact upon the form of the Conservation Area, including its open spaces (including gardens), the position of existing buildings and notable features […]”
  1. The Council’s Local Plan Part 2: Land and Planning Policies (Adopted) October 2019 says:

“Planning permission for new development […] will be granted provided that, where relevant, the following criteria are met:

        1. There is no significant adverse effect upon the amenity, particularly residential amenity of adjoining properties or the surrounding area, by reason of type and levels of activity on the site, or traffic generated;
        2. The scale, density, height, massing, design, layout and materials of the proposal is sympathetic to the character and appearance of the neighbouring buildings and the surrounding area. It should not lead to an over intensive form of development, be overbearing in relation to neighbouring properties, nor lead to undue overshadowing or loss of privacy;
        3. There is no significant adverse effect on any historic sites and their settings including listed buildings, buildings of local interest, conservation areas, scheduled ancient monuments, and historic parks and gardens.”

What happened

  1. Mr X lives in a conservation area and is a member of a resident’s association.
  2. In July 2019, a developer applied for planning permission to build retirement apartments within the conservation area.
  3. The Council’s planning committee held a meeting in December 2019 to consider the application.
  4. As part of their presentation, the Planning Officer referred to a previous application which was approved in 2008. The previous application was to build several units of housing care in the same area as the proposed development. The planning permission granted in 2008 had expired.
  5. The Planning Officer presented the Council’s report and recommended approving the application. The committee also heard arguments for and against the application.
  6. The committee decided to approve the application.

Mr X’s complaint

  1. Mr X complained to the Council in February 2020. He said the information provided to the Council as part of the application was ambiguous and contradictory. He said the Council had not tried to resolve this. He also complained the Planning Officer wrongly referred to the new application as similar to the 2008 application. Mr X also complained the Council posted notices about the application at different times.
  2. Mr X said the plans showed the development would be taller than a nearby church and listed building and said the Planning Officer had disputed this. He said the Council had treated verifiable facts as matters of opinion.
  3. The Council replied to Mr X’s complaint. It said the Planning Officer told the committee the proposed development would be taller than the previously approved building. It disagreed the officer said the building would not be taller than the church.
  4. The Council said it had referred to the previous application because it established a principle of developing the site for a similar type of accommodation. It also said it considered there were similarities between the old and new applications.
  5. The Council said the Planning Officer’s report addressed the impact on the conservation area and said it gave due consideration to the issues raised. It said many of the issues were matters of judgement and opinion, and that each application is considered on its own merits.
  6. The Council said it publicised the application in the local newspaper on 25 July 2019 with a deadline for comments given as 15 August 2019. It said it also displayed a site notice on 29 July 2019 with a deadline for comments given as 19 August 2019. The Council said it posted a new notice at the site on 6 August 2019 because the original notice went missing. The Council said it also wrote to neighbours on 6 August 2019 with a deadline for comments given as 28 August 2019.
  7. Mr X made his Stage two complaint in March 2020 and said the Council’s different deadlines for comments were confusing to the public. He also said the application contained inconsistent information.
  8. Mr X said the new application was not similar to the 2008 application. He said the proposed building was a larger development with more bedrooms, was taller and did not meet all the criterion specified by the previous Conservation Officer. Mr X said the Planning Officer presented facts as matters of opinion and was selective in the information presented to the committee.
  9. The Council replied and said it was unavoidable there would be different end dates for different methods of publicity. It said however, the Council was not able to reach a decision until after the later date specified had expired.
  10. The Council said any harm to the area caused by the development must be given significant weight and any public benefits weighed against the harm. It said the planning committee must make its own decisions and said all relevant factors were considered.
  11. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.

Analysis

The public notices

  1. The Council says it publicised the application in the local newspaper, displayed a site notice and wrote to neighbours as required by the Town and Country Planning (Development Management Procedure) (England) Order 2015 (the Order). The Council also posted a notification of the application on its website.
  2. The evidence shows several notices were issued at different times and therefore had different deadlines for comments. The notices correctly requested comments within 21 days of issue, and the actions taken by the Council are in line with its own Statement of Community Involvement Policy.
  3. The Order does not say the above methods of public notification must be carried out at the same time. The Council informed the public about its right to submit comments within 21 days of each notice and the changing deadline did not inhibit this right.
  4. I acknowledge the different dates for comments may have been confusing to the public. But having considered the above, I do not consider the actions taken by the Council regarding this matter constitutes fault.

Comparison to the 2008 application

  1. Mr X says the new development is not similar to the 2008 application because it is taller and is situated closer to the road than the previous proposal.
  2. The Council says it considers there are similarities. It says both applications involve the provision of apartment accommodation for older residents, are of a similar number of units and involve the provision of a three-storey building. The Council acknowledges the design of the buildings are different however, as the previous proposed building had a flat roof whereas the more recent development has a pitched roof.
  3. The Council says planning history is a material consideration when considering an application for the development of a site. It says planning permission had previously been granted for 40 units of C2 housing care (which includes residential institutions such as residential care homes and nursing homes). It says although this permission had expired, it established the principle of developing the site with this type of accommodation.
  4. I have reviewed the Council’s planning committee report and listened to a recording of the meeting held in December 2019. Both records confirm the Council referred to similarities with the application approved in 2008. However, the Council also pointed out differences between the two developments.
  5. During the meeting, a committee member asked the Council’s solicitor what weight should be applied to the fact that a similar application was previously approved. The solicitor advised the committee to consider the new application based on its own merits.
  6. The Council has explained why it compared the new development to the previous application and I consider this explanation is reasonable.
  7. I acknowledge Mr X’s reasons for considering the two plans are not similar, and his reasons for disagreeing with the Council. However, this disagreement is not evidence of fault by the Council.
  8. Regardless of whether the new application was similar to the 2008 application, the Council says it considered the new application on its own merits. The evidence supports this explanation.
  9. I do not consider the Council wrongly compared the new application to the previous one, particularly when the Council considered the planning history of the site as a material consideration. The evidence shows the committee was advised to make its decision based on the merits of the application put before it. Whilst the previous application was considered, this was not the only factor presented to the panel. Therefore, I find no fault in the Council’s comparison of the two applications.

The Council’s consideration of the application

  1. Mr X says the Council did not properly consider the objections about the building height, its proximity to the road and an increased population density. He says the Council said some aspects of the application were a matter of opinion, but the dimensions, location and density of the building are verifiable facts, not matters of opinion.
  2. The Council says the building’s measurements, position within the site and proximity to the road, elevation and resulting impact on the surrounding area were considered as part of the application process. It says many of the factors raised as objections are a matter of judgement and opinion, and although it holds a different opinion to Mr X, it says this is not a failing in the process.
  3. A Councillor raised the issue of the ground floor level and height of the property during the committee hearing. They said the development would be a full storey higher than the buildings opposite. The Council acknowledges the level of the land is uneven and says the plans showed measurements at various places within the site. It says the plans also showed the height of the building’s finished floor, the levels for the underside of the roof, and the overall roof height.
  4. The Council says it considered the plans and the measurements and considered the development would not be a full storey higher than the buildings opposite.
  5. Regarding the proximity of the building to the road, the Council says the proposed development occupies a similar footprint to the previously approved development. It says the position of the building was considered to be acceptable and says the impact on the surrounding area and amenities was considered in the report to the committee.
  6. I acknowledge Mr X’s comments that the Council viewed verifiable facts as a matter of opinion. However, I do not consider the Council viewed matters such as the dimensions and location of the building as such. The Council has demonstrated it considered the measurements within the plans and says the height of the building and its proximity to the road were considered. The matter of opinion is whether the Council considered the building of the development in accordance with these measurements and plans to be acceptable. It’s report to the committee set out its considerations and concluded that they were.
  7. The report to the committee refers to the Council’s Local Plan Part 2: Land and Planning Policy (1). Paragraph 44 says:

“The scale, density, height, […] should be sympathetic to the character and appearance of neighbouring buildings and the surrounding area; that they do not lead to an over-intensive form of development; and that they are not overbearing in relation to neighbouring properties, and do not lead to undue overshadowing or loss of privacy”.

  1. The report shows this was considered. Paragraph 89 says:

“It is considered that there may be some slight (less than substantial) harm to the appearance of the Conservation Area but it is considered that the proposal is sympathetic to the character and appearance of the neighbouring buildings, adjacent Listed Building and surrounding Conservation Area by virtue of its scale, density, height, massing, layout and materials, an opinion supported by the Conservation and Design Officer, it would not lead to an over-intensive form of development, be overbearing in relation to neighbouring properties, nor lead to undue overshadowing or loss of privacy. As such it is considered that any harm would be outweighed by the public benefits of the scheme, of bringing back into use this unsightly vacant site whilst contributing to the provision of homes for the elderly, a sector where growth is needed within the borough.”

  1. Having reviewed the report to the committee and the recording of the meeting, I consider the Council took the objections about the building’s height, proximity to the road and population density into consideration when making its recommendation to the committee. The committee had the opportunity to discuss, question and consider the report before making its decision and the evidence shows it made use of this opportunity. On this basis I find no fault in this aspect of the complaint.

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Final decision

  1. I have found no fault by the Council in this matter and have concluded my investigation on this basis.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr X’s complaint about the later application to modify the planning application, or his complaint that the applicant provided contradictory or ambiguous information to the Council.
  2. This is because the Council had not made its decision about the later application at the time of Mr X’s complaint. Also, the complaint about the information provided to the Council relates to the actions of the applicant.

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Investigator's decision on behalf of the Ombudsman

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