Summary: Ms X complained about how the Council dealt with issues relating to contaminated land after it gave planning permission for the housing development where she lives. There was no fault in the way the Council had dealt with this matter. The Council had used the planning process to satisfy itself that the contaminated land is built over and does not present a threat to public safety.

The complaint

1. Ms X complained that the Council has failed to protect her and her family from the risk of contaminated land near her home.
2. Ms X said that a land contamination report suggested that an amenity area near her home included ‘hotspots’ of dangerous material. Ms X was concerned for the safety of her child and wanted reassurance that the measures had been taken to make the amenity area safe.

Back to top

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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

5. I read the complaint and discussed it with Ms X and a Council officer. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and two land contamination reports.
6. I gave Ms X and the Council an opportunity to comment on a draft of this decision.

Back to top

What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

What happened

11. Ms X lives on a housing development that was built on a brownfield site. The site was known to include land contaminated by asbestos.
12. The Council approved the planning application subject to a condition requiring construction in compliance with the recommendations of a land contamination report.
13. Ms X read the report, and was concerned when she saw that it stated that two of the contamination ‘hotspots’ were in the vicinity of amenity areas. She was concerned her child might not be safe if measures to cover contaminated land had not been carried out.
14. She complained to the Council about this and asked why a different planning condition to control contaminated land had been used on another phase of the same housing development.
15. The Council responded and explained that the original application included a contamination report, but the Council required submission of a further report prior to development works beginning. The Council received a revised report and the contaminated land condition was discharged and uploaded to the Council’s website under a new planning reference number.
16. In response to my enquiry, the Council said:
• The revised report showed the hotspots were under a road and a building. This revised version of the report had been uploaded for public view on the Council’s website page for the original planning application;
• The Council could ensure compliance with the revised report under the original planning condition; and
• The wording of the standard planning conditions used for contaminated land changed during the time the two applications were decided, but both conditions could be used to ensure compliance with contaminated land controls.
17. I read the conditions in both applications Ms X referred to. Though the newer condition is much longer and more detailed, both require compliance with recommendations of the contaminated land report.

My findings

18. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
19. Before it discharged the planning condition controlling contaminated land, the Council considered a revised copy of the land contamination report which showed hotspots were now covered by a road and the footprint of a building.
20. I found no fault in the way the Council dealt with issues relating to contaminated land. The Council has used the planning process to satisfy itself that the contaminated land has been built over and does not present a threat to public safety.

Back to top

Final decision

21. I completed my investigation because I found no fault in the way the Council dealt with issues relating to contaminated land.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman