Summary: There was fault in how the Authority handled planning matters at a site close to Mr B’s home. It did not follow its publicity policy, it did not expressly consider the impact on his privacy, and it has taken too long to deal with breaches of planning control. The Authority should apologise to him, make a payment, and formulate an action plan as to how it will resolve the outstanding enforcement matters so that there is no avoidable delay and make sure this is communicated to residents.

The complaint

1. Mr B complains that the Authority did not deal properly with planning matters for development at a site adjoining his home. In particular, the Authority:
• failed to adequately publicise the planning applications on this site;
• failed to adequately consider the impact of the application on the neighbouring residents and during the consultation period the information was not sufficient to allow the public to understand the potential impact so they could comment on this;
• wrongly allowed the Reserved Matters application to be amended to change the position of a building after the consultation period had started, and failed to properly assess the impact of this on his amenity; and
• failed to take effective action to deal with planning breaches involving extending the site to the rear, raising ground levels, and breaching planning conditions controlling noise.
2. Mr B says as a result of the Authority’s shortcomings, he is affected by the building in terms of overbearing and loss of privacy, and he is disturbed by the operations on site.

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The Ombudsman’s role and powers

3. 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 an authority’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)
4. If we are satisfied with an authority’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

5. I considered the information provided by Mr B and discussed the issues with his representative. I considered the information provided by the Authority including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken the comments of both parties into account before reaching a final decision.

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What I found

The law, guidance and policy

6. 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.
7. The purpose of the planning system is to contribute to the achievement of sustainable development. Sustainable development is that which meets the needs of the present without compromising the ability of future generations to meet their own needs.
8. All decisions on planning applications must be made in accordance with the planning authority’s development plan, unless material considerations indicate otherwise.
9. 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.
10. 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. Government statements of planning policy are material considerations. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities). It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
11. Planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary. The government’s current guidance on planning enforcement is set out in the National Planning Policy Framework (2019) and, in more detail, in its online guidance, ‘Ensuring effective enforcement’. ‘’Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.
12. The planning authority may invite a retrospective application to regularise development which has already been undertaken. It should take care not to fetter its discretion prior to the determination of any application – such an application must be considered in the normal way.
13. Planning authorities are required to publicise planning applications.  The publicity required depends on the nature of the development and the authority’s own policies. In all cases the application must be published on the authority’s website. Its policy also requires a site notice in at least one place on or near the land to which the application relates. The policy also says that where there are properties that adjoin the site and have a frontage on another street we will where possible display an additional notice on that street.

What happened

14. Mr B lives in a small rural town. A local site had once been a garden centre, but for many years had been used by a local trader to store second-hand cars. Much of the site had been used as a tree nursery. Mr B says the trees remained and had formed an attractive woodland. A landscaping firm decided to develop the area so that it could store materials on site, house an office for customers to visit and separate buildings for toilets and staff facilities. The site is narrow with homes backing onto it on both side boundaries, and sheltered housing to the rear. Mr B’s home adjoins the side boundary and his frontage is on a different street. He says the majority of the homes are retirement homes or sheltered housing for elderly people.
15. The applicant submitted an outline planning application. The Authority put up a site notice on the street used to access the site, but not on any of the surrounding streets onto which adjoining properties front.
16. The Authority granted outline planning permission. This established that the new use would be acceptable in planning terms. The Authority’s planning report sets out its assessment of the application. This says:
• the development is acceptable in principle because it will generate employment and so meets its policy to support new, small scale employment developments.
• the site is currently vacant, overgrown and unkempt and if suitably designed, the development could lead to an improvement in the appearance, and it would not be detrimental to the character and appearance of the area.
• there are houses on both sides of the site, but it would be possible to maintain privacy. It notes that the impact of disturbance and noise is less clear, but that a condition restricting the hours or operation would protect the amenity of the neighbours.
• the Authority will consider details of surface water drainage systems and landscaping and the applicant should make a reserved matters application.
17. The Authority attached a planning condition that the applicant could not operate machinery, carry out any process or take at or dispatch deliveries from the site outside of certain hours.
18. The applicant submitted the reserved matters application for approval of the office and staff room, a storage shed, associated yardage, a polytunnel, storage areas, reception building, parking and landscaping. Again the Authority did not put up site notices on the surrounding streets despite that properties adjoining the site, front onto these. Mr B commented on the application. He said that he did not object in principle and he had agreed landscaping details with the applicant to screen his home. He asked that the Authority make a planning condition that no mechanical processes be carried out on site.
19. The applicant changed the layout of the site after the consultation had started. This changed the orientation of the storage building so that instead of being at right angles with Mr B’s property it now faced it, running along the opposite boundary. Mr B did not realise this change had been made.
20. The Authority’s planning report on the reserved matters application says:
• A resident had asked it to restrict mechanical processes on site and another had asked it to establish whether badger habitat would be disturbed by the development.
• It described the site as having dense shrubbery and trees some of which had been felled. It says it was inevitable the applicant would remove some of these. The trees appear to have been from an abandoned tree nursery and are set back from the road. The officer’s assessment was that their loss would not be unduly harmful to the character of the area.
• The proposed buildings are single storey and set back from the main road. The report sets out the officer’s assessment of the impact on the amenity of neighbouring residents. It says three of the four buildings are not close to residential properties and so there is no impact by overlooking or overshadowing. The proposed office however is close to a house. There are no facing windows, but the officer expressed concerns that the office building might be overbearing. However, the office concluded that the impact would not warrant refusal because the rooms of the house have other windows, and the house and the site area owned by the same Trust. The report did not set out an assessment of the impact on Mr B’s home.
• It would be unreasonable to prevent any mechanical operations on site as this is intrinsically linked to the use and could only be addressed at the outline planning stage.
• the Authority had regard to the wildlife habitats legislation and the applicant submitted a badger survey in response to residents’ concerns. There was no evidence of a badger sett on site.
21. The applicant erected the storage building. It was at this stage, that Mr B realised that the position had been changed and the building now faced the rear elevation of his home. The doors and windows faced him and given that the site is very narrow, Mr B considers this impacts on his privacy and is overbearing. He also says that although, the applicant told him the site would be screened by landscaping, the office building is very visible particularly in the winter months.
22. In November 2020, residents told the Authority that the applicant had started felling trees on another piece of land adjoining the approved site, extending the site by around 20 metres. The Authority visited the site and concluded that the trees were not protected and so could be felled without permission, but the applicant could not use this area as part of the business or lay down any hardstanding for storage, without submitting a planning application. The Authority told the applicant to cease work in this area.
23. In February 2021, the applicant submitted a further planning application to use the extended area at the rear of the site, as part of the landscaping business and to lay down a hardstanding. The Authority visited the site in April, May, July and August. Its files show that in August the Authority concluded that the applicant should withdraw the application and submit two in its place. The first to deal with unauthorised changes to the original ground levels on the original site, and the second for permission to use the extended area, raise the ground levels and to provide additional screening for residents. The Authority made it clear in the meantime that the applicant should not use the extended rear part of the site for its business as it had not permission to do so.
24. In October, the applicant withdrew the 2021 planning application and submitted two applications as advised. The Authority is still in the process of determining these applications. Residents have reported that the applicant continues to use this part of the site despite that there is no planning permission for it. In response to the current applications, numerous residents including the sheltered housing residents have said the operations on site are noisy and disturb them so they cannot enjoy their homes or gardens. Mr B says that as well as the sheltered housing the majority of dwellings are retirement homes.
25. In February 2021, the local council’s Environmental Health Officer (EHO) notified the Authority that he had received complaints the firm was using machinery on site outside of the permitted hours. The Authority opened a planning enforcement case, but there is no evidence they took any action until the site visit in August 2021, made to assess the planning application to extend the site. At that time, the Authority also warned the applicant that operations should be within the specified hours to avoid formal enforcement action.

Was there fault by the Authority causing Mr B an injustice?

Notification of the planning applications

26. There was fault by the Authority. Its policy says it should have put up site notices on the streets surrounding the site where adjoining properties front onto these. This includes Mr B’s streets and the street to the rear where there is sheltered housing.
27. Mr B commented on the reserved matters applications, but was unaware of the outline application. I can understand his concern that others may have wanted to comment but were not aware of them due to the Authority’s shortcomings. This has caused Mr B uncertainty and frustration. The key issue is whether residents would have raised any material planning considerations not already taken into account by the Authority when it decided the planning applications. However, the Authority considered all material planning considerations, and it is unlikely that the residents would have raised issues that had not been considered.

Detail of the applications so that residents could comment

28. Mr B says the outline planning application did not mention the woodland or that there would be machinery processes on site. The processes are linked to the use of the site and the Authority considered this aspect, attaching a planning condition controlling the hours of operation.
29. Again, residents would know that there were trees on site, whether they considered this to be a woodland or abandoned tree nursery. The outline application would not deal with this as landscaping was considered at the reserved matters stage. The outline planning application dealt with the principal of using the site for a landscaping contractors headquarters with storage and a yard. There was sufficient detail to allow residents to comment on this.
30. Mr B says the reserved matters application did not address screening and he was led to believe by the applicant that this would be provided. He was told he would not be able to see the site and the applicant would plant more hedges and retain trees along the site boundaries.
31. The applicant submitted a landscaping plan as part of the reserved matters application and the Authority considered this acceptable in terms of screening. However, I have set out below that the Authority failed to consider the impact of the storage building on Mr B’s home.

Allowed the storage building to be reorientated and failed to properly consider the impact of this on his amenity

32. The Authority does not have to publicise that an application has been amended unless the change is material. It was open to the Authority to decide that relocating the storage building was not material. The key issue is whether it assessed the impact of the new position.
33. The Authority did not set out in its planning report how it assessed the impact of the building on Mr B’s home. The site is very narrow and based on the information I have available to me so far, the separation distance between the facing elevations appears to be around 20 metres. This being the case, I would expect the Authority to expressly set out its consideration of the impact on Mr B’s privacy and outlook.
34. Mr B is left uncertain as to whether the building would be allowed in that position, or whether the screening would have been greater had the Authority expressly considered this. However, on the balance of probabilities, it is unlikely that the Authority would have refused the reserved matters application on this basis. The office building is singe storey and the numbers using this is relatively low. Although Mr B is not satisfied with the level of screening, there is some on the boundary, to some extent mitigating the impact on him.
35. Mr B also points to the fact that he can see and is disturbed by the noise of vehicles delivering and moving materials on site. I am sympathetic that this is very different to the site which was part wooded and part used for vehicle storage. However, the impact of operations on site was considered by the Authority and it imposed a condition to restrict the hours of this.

Enforcement action

36. There are several enforcement issues. These are raised ground levels on the whole site; the development of land to the rear of the site and not included in the outline or reserved matters planning permission; and operations outside of the restricted hours.
37. There was fault by the Authority here. It responded in good time initially, but then took too long to assess the 2021 application before advising the applicant to withdraw and resubmit further applications. Overall, the breaches are still not resolved, although I recognise that there are applications pending and it is open to the Authority not to take further formal action until it has decided these. It has explained that it will reconsider formal enforcement action if the breaches cannot be remedied by current planning applications.
38. There is also no evidence the Authority took action to make sure operations are kept within the specified hours. Mr B says this only meaningfully improved In August 2021, when the Authority told the applicant to withdraw the planning applications and made clear that it should keep to the restricted hours.
39. The Authority has explained that it was short staffed at that time. It engaged a contractor but this was not sufficient to clear its backlog. Although I am sympathetic to the Authorities efforts to progress cases, we would still expect it to take enforcement action in good time and meet the normal standards of determining an application within eight weeks. The delay in assessing the application and advising the applicant to resubmit further applications, caused Mr B and the surrounding residents frustration and uncertainty about whether the Authority would grant the application and regularise the breach, or take enforcement action to stop the unauthorised use.
40. In addition, Mr B was disturbed by early morning operations on site, and the unauthorised extension of the site meant that there was more activity on site throughout the day. Operations on the rear part of the site particularly affected the sheltered housing residents, who rely on the peaceful use of their home and amenity space. The Authority’s delay meant that not only have the issues not been resolved through the planning applications, but the lack of enforcement encouraged the applicant to continue to breach planning control until the Authority made clear in August 2021, that the application should be resubmitted.
41. I appreciate that Mr B has concerns about the current planning applications that seek to regularise raised ground levels, and authorise use of the rear of the site. As this is still being considered by the Authority and the outcome is uncertain, I cannot reach a view on how this has been decided or whether there is an additional impact to Mr B. If Mr B considers there is further fault by the Authority that impacts him, he can bring a separate complaint to us once the outcome is known.

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Agreed action

42. Within one month of the date of this decision, the Authority will show the Ombudsman it has:
• apologised to Mr B;
• paid him £250 in recognition of the uncertainty its failings have caused him, the additional disturbance he has suffered as a result of the Authority’s delays in resolving this matter, and his time and trouble in pursuing issues;
• shared this decision with relevant staff and reminded them of the requirements of its policy on publicity for planning applications; and
• formulated a plan as to how it will determine the planning applications and resolve outstanding enforcement matters, with expected timescales where possible so that there is no avoidable delay, and communicated this to the residents including Mr B and the sheltered housing residents.

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Final decision

43. I have completed my investigation. There was maladministration by the Authority, causing injustice.

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Investigator's decision on behalf of the Ombudsman