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Broxbourne Borough Council (20 007 400)

Category : Planning > Other

Decision : Not upheld

Decision date : 28 Jun 2021

The Ombudsman's final decision:

Summary: There was no fault in how the Council considered a reserved matters application for housing on a large development near Mr B’s home. It properly considered and addressed the issues raised by the public, and took into account national and local planning policy when it decided to grant planning permission.

The complaint

  1. Mr B complains about how the Council has handled a reserved matters planning application for a large housing development close to his home. In particular, Mr B says:
    • The Council allowed the applicant to submit relevant documents after the residents had been consulted and so the residents did not have all the information when they formulated their objections.
    • The Council has not properly considered the residents’ objections; the provision of electric car charging points and based its decision on the applicant’s misleading information; and the sustainable energy issues raised.
    • The Council took too long to deal with his complaint.
  2. Mr B says that as a result he is left concerned that the application has not had the scrutiny required of a major planning application.

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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 considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council including its planning file documents. I also considered the law, guidance and policy set out below. Both parties had the opportunity to comment on a draft of this statement and I have taken these comments into account before issuing my final decision.

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What I found

Relevant law, guidance and policy

  1. Outline planning permission establishes the acceptability of development, subject to latter agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development.
  2. Councils are required to give publicity to planning applications.  The publicity required depends on the nature of the development although in all cases the application must be published on the council’s website. In this case, the requirement was also for a site notice, publication of the notice in the local paper, and to notify neighbouring occupiers. The Council’s policy says that where an application is significantly amended, it will notify interested parties and give a further week for their additional comments.
  3. 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.
  4. 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.
  5. 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.
  6. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities). It is for the decision maker, in this case the Council’s planning committee, to decide the weight to be given to any material consideration in determining a planning application.
  7. The Council’s development plan sets out its expectations that new housing developments will include electric vehicle (EV) charging points. It says the Council expects that all parking spaces, including communal spaces, should have active EV charging points, or passive charging points where it can be demonstrated that provision of active points in not reasonable.

What happened

  1. In 2015, the Council granted outline planning permission for a large housing development at a site close to Mr B’s home. In 2020, the Council determined the reserved matters planning application for the first residential area of 100 dwellings and 257 parking spaces.
  2. The Council put up site notices, published the notice in the local paper and wrote to neighbouring occupiers. The Council also consulted the various statutory consultees, including the local lead flood authority. The Council received objections from residents. The applicant altered the layout of the housing and so, in line with its policy, the Council contacted those that had commented on the application, giving a further period for comments on the revisions.
  3. The applicant also submitted a number of documents to support the planning application. These included a note of the EV charging points which said the applicant could not deliver charging points to all parking spaces. It said the applicant had discussed this with the electricity provider who has indicated that the network serving the development has very little capacity, and so this part of the site would have only 25 passive and 25 active charging points.
  4. The applicant also submitted a sustainability and energy statement setting out energy and energy efficiency and sustainability measures that the housing will have such as efficient lighting and water saving sanitary fittings.
  5. The applicant submitted further information about surface water drainage in response to comments from the statutory consultee. The Council did not re-consult the public on those further details. It says all the relevant information is on the public planning web page, and all interested parties can track the progress of the application. It also allows people to submit comments right up to the committee meeting.
  6. The Council received 11 objections from residents. The report to the committee members summarised these. Comments from residents included objections to the development as a whole and that the local infrastructure could not serve the new households. But the outline planning permission meant that these aspects had already been addressed. Residents also said that the developer was not keeping them informed of what was happening, but the developer’s website dedicated to the site, and its community liaison group give adequate information.
  7. Specific to the reserved matters application was that the ground levels would be raised and flood risk could increase. However, the Local Lead Flood Authority had no objection based on the detailed surface water drainage proposal. The Council’s committee report told members that the proposals for dealing with surface water and foul wastewater were acceptable.
  8. Mr B says that the existing cottages adjacent to the site are lower than the housing development and so he is concerned that risk of flooding to these properties will increase. The Council has explained that the site is self-contained in respect of surface water drainage as all surface water from hard surfaces will drain into detention ponds before draining into a watercourse.
  9. Residents raised concerns about noise and dust during the construction. The Council has explained that air quality monitoring was a condition of the outline planning permission and the developer has installed a monitoring station on site and is required to report details of the air quality to the Council. In addition, the Council has statutory duties under environmental protection legislation to investigate complaints of noise or dust that might be causing a nuisance.
  10. The Council’s committee report says that the impact on existing residents in terms of their privacy and daylight to their property, will be minimal. Mr B raised concerns about the properties nearest to the development as these are lower than the application site and some of the new houses will be three storeys high. The Council has further explained that its supplementary planning guidance would requires a distance of 30 metres between facing windows of 2.5 or 3 storey accommodation. The distances between the new and existing houses are nearly double that minimum separation distance and so the impact on existing residents is acceptable.
  11. The committee report also set out that the provision of only 25 active and 25 passive charging points for the 257 parking spaces did not meet the expectations of the Council’s policy that all parking spaces on new development should have at least a passive charging point and only if it would not be reasonable to insist on active points. The report says that it is reasonable for the Council to accept this level of provision because the applicant has submitted that there is limited supply capacity. The Council has further explained that the onsite substation will also supply future phases of the whole development and so the Council had to factor in what was reasonable in terms of EV charging provision.
  12. Mr B also raised that the applicant had not made any firm commitments about sustainable energy sources for the development, and would submit details to the chair of the planning committee. Mr B said the details should be part of the reserved matters application.
  13. The Council said that energy performance of homes is delivered through building control and it has limited basis for insisting on such measures as part of the planning permission. In order for the Council to insist on certain sustainable energy sources, it would need to make precise requirements for the condition to be enforceable, but it is unable to do this. However, the applicant’s sustainability and energy statement formed part of the Council’s assessment of the planning application and so the Council would expect the developer to deliver the measures it set out there.
  14. The Council planning committee granted planning permission with conditions attached including those for surface water drainage and EV charging provision. The planning condition for EV charging points required the applicant to provide full details of passive charging infrastructure for all dwellings and 25 live charging points.
  15. After the decision, Mr B contacted the electricity supply provider. The provider told Mr B that it was not the electricity distribution network operator for the site and had not had recent discussions with the developer about capacity to serve EV charging. Mr B complained to the Council that it had allowed the applicant to mislead it and as a result it had allowed fewer charging points than its policy expects. The applicant submitted details of EV charging infrastructure for all dwellings and 25 active points. The Council discharged the planning condition.
  16. Mr B complained to the Council and then to the Ombudsman about how it had handled the planning application. He said the Council took too long to deal with his complaint.

Was there fault by the Council causing an injustice to Mr B?

The Council’s consultation with residents

  1. There was no fault in how the Council consulted residents. It met the requirements of the law and its notification policy. The Council consulted on the original application and the amendment. The applicant did submit some further information, but the public had access to this and was able to comment on it. The Council did not need to notify the public again that the applicant had submitted more information.

The Council’s assessment of residents’ objections

  1. The Council’s committee report dealt with residents objections and the Council has provided me with further clarification of certain aspects. The Council has explained how it assessed the impact of the new development on existing residents with reference to its policy (in terms of privacy and impact on light) and based on the advice of its statutory consultees (in terms of flood risk). It has also ensured the developer monitors air quality. The Council can require that work on the site is restricted to certain hours, but within those hours it is reasonable to deal with any noise or dust nuisance under its environmental protection powers, rather than try to control these under the planning system. Government specifically gave the Council separate environmental protection duties and powers to deal with such issues.
  2. Again, the Council can rely on the requirements of building regulations and the developers representations to the Council to bring forward sustainable energy design.
  3. I have carefully considered Mr B’s complaint about the EV charging provision. The Council’s policy is clear that the provision of active charging points is an expectation and not a requirement. The Council has also raised that EV charging provision was not a requirement of the outline planning permission which had already established that the housing development could be built on that site.
  4. In any case, it is open to the Council to depart from a planning policy provided that it gives the issues due consideration. The Council’s committee report clearly sets out the provision the applicant expects to make. Officers and members were able to understand the level of EV charging provision, and that this did not meet the expectations of the Council’s development plan.
  5. Of course, the Council’s deliberations were informed by the applicant’s submission that the supply would not allow all parking spaces to have charging points. The Council decided that in light of this it was reasonable for it to allow fewer charging points. Mr B has cast doubt on the accuracy of this information. However, I would not expect the Council to check the accuracy of an applicant’s statements when it decides an application. I am not clear that the provider’s statement to Mr B means that 100% charging points is achievable. The Council’s approach means that the infrastructure is in place for more active charging points and this is in line with its policy.

The Council’s complaint handling

  1. The Council’s response to Mr B’s complaint was overdue by two working days in terms of its policy. This is not a significant delay and did not impact on Mr B.
  2. Overall, there was any fault in how the Council determined the reserved matters planning application or dealt with the matters complained about.

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Final decision

  1. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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