Rugby Borough Council (18 011 151)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 04 Apr 2019

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to ensure a housing developer built a wall on the boundary of his property. There was no fault in the way the Council made its decision on a planning condition.

The complaint

  1. Mr X complains the Council has failed to ensure a housing developer built a brick wall on the boundary of a property he owns. He believes it is the Council’s custom and practice to require high walls on residential developments.
  2. Mr X says that he cannot move into the property as it will not be private or secure.

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What I have investigated

  1. I have investigated the Council’s decision to approve an application to discharge a planning condition relating to the boundary in May 2018.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. 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 read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
  2. I gave the Council and Mr X an opportunity to comment on an earlier draft of this decision and took account of the comments I received.

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What I found

  1. Councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • access to the highway;
    • protection of ecological and heritage assets; and
    • the impact on neighbouring amenity.
  3. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  4. Planning permission is required for any fence, wall or gate that:
    • is over 1 metre high and next to a highway used by vehicles or a footpath alongside such a highway; or
    • is over 2 metres and located elsewhere.
  5. Councils often publish guidance on how it applies policy and consider applications. This guidance does not create binding rules that it must follow.

Background

  1. Mr X owns a large building that was once a large house, but it now has a mixed use. It is divided into units, one of which is commercial and the rest are residential. Mr X would like to live in the building as a single residential unit.
  2. In 2015 a housing developer submitted a planning application to build a large number of houses on land around Mr X’s property. The plans showed an access road to the estate, on a thin rectangular piece of land connecting the highway with a field behind Mr X’s land. The access road was planned to run alongside Mr X’s rear garden.
  3. A case officer considered the application and recommended approval. Mr X sent in comments on the application. The application was approved in April 2016 subject to planning conditions.
  4. One of the planning conditions related to Mr X’s boundary. It said that no development will take place until details of the ‘boundary and/or landscaping treatments’ were provided and approved in writing by the Council. The reason given for the condition was ‘In the interest of visual amenity’.
  5. Before a decision on the condition could be made, Mr X challenged the site plan. The developer had drawn the boundary up to a fence, leaving a strip between the fence and boundary about a metre wide. The developer and the Council were expecting this land, in front of the fence, to be used for boundary treatment.
  6. Mr X employed a surveyor who provided a report to show that Mr X’s boundary went beyond the fence and included much of the narrow strip between Mr X’s fence and the access road. Mr X believes this proved the developer had misled the Council about the application.
  7. The developer accepted the surveyor’s report, and this meant there was a much-reduced area for landscaping and boundary treatments.
  8. Mr X wanted a 1.8 metre brick wall along the boundary, and it seems at one point the developer was considering agreeing to build this for him. However, the Council considered a wall would only be acceptable if views of it could be broken by planting in front of it. Since the new position of Mr X’s boundary land was accepted, the area of land available for landscaping is much reduced. The Council realised there was not room for significant planting and a wall on the narrow strip that remained. In any event, the Council could not require the developer to carry out works on land it did not own.
  9. The developer then submitted a landscaping proposal to leave the boundary land much as it was, laid to grass. The Council would have preferred a more pleasant, planted entrance to the new housing estate for public visual amenity reasons, but this was no longer possible. When this was weighed in the balance with all the other planning considerations, the Council decided to accept the area as it was, laid to grass. It discharged the planning condition in May 2018.
  10. Mr X complains the Council led him to believe that the planning condition was intended to protect his personal privacy and security. He says that no mention was made that the purpose of the condition was to protect visual amenity for the public. Mr X says, the Council’s own policy and government guidance requires 1.8 metre brick walls wherever rear gardens open onto public roads.
  11. The Council says the reason for its condition was to protect the public’s view of the entrance of the site. It says it could not justify protecting Mr X’s private amenities, because the garden of the building he owns is not private. The front garden is used for parking for visitors to the business and the separate residential units have views over the rear garden.
  12. Mr X has offered a 2-metre strip of land to the Council or developer to use for landscaping, but neither have taken him up on his offer.
  13. The Council says it would have accepted a wall if views towards it could be broken up by planting. However, once Mr X’s surveyor’s findings were accepted, landscaping options were significantly reduced. The Council might have preferred more planting, but it accepts it cannot require it given the restrictions outlined above.

My findings

Time limits for investigations

  1. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12-months from when events occurred or the complainant could have known about them. We have discretion to go back beyond this limit, but would need a good reason to do so.
  2. We usually need evidence that it was not practically possible for the individual to complain at the time, for example, because they were incapacitated and had no-one to manage their affairs.
  3. Mr X was aware of the 2016 application decision and says he is not challenging it. I see no good reason to investigate events surrounding the 2016 planning application decision now. Any concerns about the Council’s approval of the application could and should have been brought to our attention sooner.
  4. Mr X concerns are mostly about the implementation of the boundary landscaping condition. The Council’s decision to approve the condition happened in 2018 and so it is within our 12-month limit.

The Council’s decision on the planning condition

  1. We are not an appeal body to planning decisions. Our role is to review the process by which decisions are made and, where we find fault in the process, to determine whether it caused a significant injustice to the individual complainant. To find an injustice, we need evidence to show the outcome would have been different.
  2. Mr X would prefer a wall on his boundary with the new road. He says government and local policy requires high walls wherever rear gardens meet public highways, but has provided no evidence to support his claim. Indeed, regulations prohibit high fences near highways in the interests of public safety.
  3. To make a decision on a planning condition, the Council must consider the details submitted by the applicant alongside its planning powers and the purpose for which the condition was imposed.
  4. The reason given for the planning condition was to protect the visual amenity for the public, not Mr X’s private amenities. Landscaping and boundary treatments might have also improved Mr X’s amenity, but that does not mean the Council must require a planning condition for that purpose. The Council considered the boundary plan in the context of the condition and its purpose and decided it was acceptable. The Council also considered change of circumstances brought about by Mr X’s evidence about the boundary of his land.
  5. The Council has followed the process we would expect and in these circumstances, I find no fault in the process.
  6. Mr X says the developer misled the Council. We investigate the actions of councils and other bodies within our jurisdiction. We do not investigate the actions and motives of planning applicants.

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Final decision

  1. I have completed my investigation as I found no fault in the way the Council made its decision on a planning application condition.

Parts of the complaint that I did not investigate

  1. I have not investigated the Council’s decision on the original planning application in April 2016.

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Investigator's decision on behalf of the Ombudsman

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