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Braintree District Council (20 006 838)

Category : Planning > Other

Decision : Not upheld

Decision date : 12 Aug 2021

The Ombudsman's final decision:

Summary: We found no fault in how the Council dealt with design quality in deciding to approve details for a development near Mr X’s home.

The complaint

  1. Mr X said the Council failed to comply with national planning policy about high quality design because it did not take account of the local design principles in the Essex Design Guide. This led the Council to approve a poorly designed development. Mr X said the Council’s decision set a precedent for poor design that would be detrimental to residents and people working in the area. Mr X wanted the Council to change its procedures so it took account of the full Essex Design Guide when deciding planning applications.

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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 written complaint and talked to him about it;
  • considered planning information about the development on the Council’s website;
  • watched the recording of the relevant Planning Committee meeting;
  • asked for and considered the Council’s comments and supporting papers about the complaint;
  • shared the Council’s response with Mr X; and
  • given Mr X and the Council the opportunity to comment on a draft of this statement and considered their responses.

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What I found

Background

  1. The Council has a local plan that sets out its planning policies for development. It must make planning decisions in line with relevant policies in the plan unless material planning considerations indicate otherwise. Material considerations concern the use and development of land in the public interest and not private matters such as the developer’s behaviour and property prices. Material considerations include issues such as overlooking and traffic generation.
  2. The Council has also adopted other planning guidance, for example, the Essex Design Guide, which it considers when making planning decisions. The Government has also issued the National Planning Policy Framework (NPPF), which is a material planning consideration. The NPPF refers to the importance of ‘high quality design’.
  3. Planning policies and material planning considerations may pull in different directions. For example, they may support new housing and seek to protect the countryside and existing residential amenities. While councils must take account of relevant polices and material planning issues, they may give competing considerations different weight. In practice, this means councils can grant planning permission for development that does not comply with all relevant planning policies and guidance.
  4. Peoples’ planning and land use comments on development proposals will be material planning considerations. Councils must take such comments into account in deciding applications, but they do not have to agree with them.
  5. A planning officer will usually write a report assessing development proposals. The report will take account of any competing or conflicting policies and material planning considerations. The officer, having weighed and balanced the key planning issues, usually ends the report recommending the grant or refusal of planning permission.
  6. A senior, usually planning, officer will consider most reports and make planning decisions for their council. However, councillors at a council’s planning committee will make some planning decisions, for example, on major developments or cases of significant local interest. The senior officer and or councillors may give different weight to relevant policies and other material planning considerations. This means they may either accept or reject the report recommendation.
  7. Normally, councils grant planning permission if they consider development is in line with planning policy and they find no planning reason(s) of sufficient weight to justify a refusal.

What happened

  1. The Council granted conditional outline planning permission for development where Mr X lives. As an ‘outline’ planning permission, the developer needed the Council’s further approval to ‘reserved matters’ (details of the development). A condition on the outline permission also required the developer to get the Council’s approval to a ‘site wide strategy’ for the site. The strategy was to set principles for the development and reserved matter proposals.
  2. The Council approved a site wide strategy for the site (‘the strategy’) and the developer made a ‘reserved matters’ application (‘the application’). The application sought the Council’s approval to details of the layout, scale, appearance and landscaping for the development.
  3. The developer changed the detailed proposals after the Council had both publicised the application and its Planning Committee (‘the Committee’) decided to defer their decision. The Council publicised the changes and its planning officers prepared a report assessing the changed proposals (‘the Report’). The Committee then considered the Report.
  4. Mr X was a member of a local group (‘the group’) that objected to both the original and the changed proposals because of they did not represent good quality design. Mr X, acting for the group, spoke at the Committee meeting. Mr X said the Council’s local plan policies sought high standards of layout and design for developments. He also referred to the NPPF that said, taking account of local design standards and guidance, councils should refuse permission for development of poor design. The Council had adopted the EDG as its local design guide. However, the Report did not give the planning officers’ views on design quality or compliance with the EDG but referred to the strategy. The strategy said the development would comply with EDG design principles, but the proposals did not, so the Council should refuse permission.
  5. The Council approved the detailed proposals, as changed, and Mr X complained. In the correspondence that followed Mr X and the Council set out their positions on design. In summary, Mr X said the NPPF made clear the Council should use the adopted EDG to secure a high quality design and layout for the development. The EDG was clear it was impossible to create a satisfactory street scene using the developer’s proposed site design and layout given the density of the development. Design was not merely a subjective matter, and the complaint was not about the ‘merits’ of the application but the Council’s failure to apply to the EDG to achieve design quality.
  6. The Council’s position, in summary, was to recognise Mr X’s right to disagree with the design approach taken for the development. But his concerns were subjective, and he was questioning the merits of the application. The strategy had effectively created design guidance for the site. The strategy provided a framework to shape, but not prescribe, reserved matter details. It had consulted on the application and the detailed proposals had changed while it was under consideration. It had considered all relevant local and national policies, guidance, and comments about design issues, including from the group, in deciding the application. The Report contained a detailed analysis of the design and layout of the development and why officers found the proposals acceptable. Officers had presented the application to, and Mr X had addressed, its Committee. Councillors had considered and debated the Report before approving the proposals. The Council was therefore satisfied it had acted correctly.

Consideration

  1. Central to Mr X’s complaint was the Council’s handling of design issues in approving the application. It was clear Mr X and the Council held differing views about the design quality of the development. Mr X found it unacceptable given conflicts with the EDG, notably the street scene arising from the layout given the density of the development. The Council, finding the design quality acceptable, said the proposals complied with (parts of) the EDG and the strategy taking cues from the character of the area while creating its own identity. In their correspondence Mr X and the Council also disagreed about the nature of their differing views. Mr X said the Council not correctly processed the application as it had failed to use the EDG to achieve design quality. The Council disagreed and said Mr X was questioning the merits of its planning decision. The difference was important as I cannot not question the merits of council decisions taken without fault (see paragraph 2). So, was there fault in the Council’s decision making?
  2. There was no dispute that design was a key planning issue in deciding the application. The Council therefore needed to show it considered the application proposals against any design policies in its local plan and took account to other relevant design guidance and information. The Report expressly listed many planning policies and guidance relevant to the application. These included the design policies in the Council’s adopted, and emerging, local plan; the NPPF; and the EDG. The Report expressly referred to the group’s representation and summarised others made about the design of the development. So, there was evidence the Council directed itself to relevant policy, guidance, and other material planning considerations on design, including the NPPF and the EDG. I therefore found no fault here.
  3. The Report also provided evidence the Council had considered the design and layout of the development. In doing so, the Report summarised paragraphs from the NPPF about ‘design quality’ and local plan design policies. The Report referred to specific guidance from the EDG, which it had applied to the development. But, in assessing layout and design, the Report mainly commented on the strategy, which had been approved as required by a condition on the outline planning permission. In referring to the approval of the strategy, the Report said local representations had said its proposals were not typical of the EDG. The Council’s view had been local context and forming a good sense of space were important and following the EDG was not always the correct way for a development. I recognised Mr X, and others, might not agree with the officers’ assessment of the proposals. However, the Report provided a reasoned justification by the Council’s officers for their recommendation to approve the application. I therefore had no grounds on which to find fault in how the Council dealt with design in processing the application.
  4. The Committee then considered the Report as they, acting for the Council, had to decide the application. Mr X raised the NPPF and EDG in addressing the Committee and said the proposals were not in line with the EDG. That issue was therefore before the Committee, so I could not find the Council failed to take it into account. How the Committee balanced and weighed the planning issues, policies and other material planning considerations, including the NPPF and EDG, was a matter for their judgement. In exercising that judgement, the Committee could, and did, approve the application although the proposals did not fully comply with the EDG. However, as I found no fault in how the Council dealt with design in processing the application, I could not question that decision.

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Final decision

  1. I completed my investigation finding no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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