Melton Borough Council (18 014 681)

Category : Planning > Planning applications

Decision : Upheld

Decision date : 17 May 2019

The Ombudsman's final decision:

Summary: Ms X complained about the Council’s failure to properly publicise a planning application for development on land next to her home. She says that her amenity was harmed because of this. There was fault in the way the Council made its decision, but it made no difference to the outcome of its planning decision.

The complaint

  1. Ms X complains the Council failed to consult her before it considered and made its decision on a planning application for development on land next to her home.
  2. Ms X says she would not have bought her home if she had known the land behind her would be used in this way. She believes the newly approved dwellings will have a significant impact on her amenity, especially the outlook from her home. Ms X says her health has been affected by what has happened.

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What I have investigated

  1. I have investigated the Council’s planning decision to build houses on land behind her home.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

  1. 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 Ms 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. I discussed the complaint with a planning officer.
  2. I gave the Council and Ms X an opportunity to comment on a 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. Planning considerations do not include things like:
    • views over another’s land;
    • the impact of development on property value; and
    • private rights and interests in land.
  4. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  5. Regulations set out the minimum requirements for how councils publicise planning applications.
  6. For major development applications, councils must publicise the application by:
    • a local newspaper advertisement; and either
    • a site notice; or
    • serving notice on adjoining owners or occupiers.
  7. For all other applications, including minor developments, councils must publicise by either:
    • a site notice; or
    • serving notice on adjoining owners or occupiers.
  8. As well as regulatory minimum requirements, councils must also produce a Statement of Community Involvement (SCI). The SCI sets out the Council’s policy on how it will communicate with the public when it carries out its functions. It is not unusual for SCI policy to commit councils to do more than the minimum legal requirements, for example, to put up a site notice and to serve notice on adjoining owners or occupiers.

What happened

  1. Ms X lives in a house on a new estate. The estate is being built in phases. The plot behind her was originally intended to be used for a large detached house. However, the developer submitted a planning application to build two houses and detached garages.
  2. The Council’s SCI requires it to publicise applications by both:
    • a site notice; and
    • serving notice on adjoining owners or occupiers.
  3. It put up a site notice, but it did not send Ms X or her neighbours who adjoin the site a notification letter.
  4. Ms X says, if she had been consulted, she would have raised concerns about how the new development will impact her amenity, particularly her outlook. Ms X says that outline plans for the site had shown a large detached house, which would not have affected her so much. Ms X says, that if she had known what might happen, she would not have bought her home.
  5. The planning case officer wrote a report, setting out her views on the application. In the report, the officer included:
    • a description of the proposal;
    • a summary of the planning history of the site;
    • details of relevant planning policies;
    • comments from consultees;
    • an assessment of the key planning issues, including the impact on neighbouring amenity; and
    • a recommendation to approve the application subject to certain planning conditions.
  6. The Council approved the application.

Other matters

  1. During my discussion with her, Ms X raised concerns about the adequacy of soil depth on her land and that the builder had stacked rubble against the boundary fence.

My findings

  1. The Council accepts it was at fault for not sending notices to Ms X and others.
  2. Whenever we find fault in a planning decision, we must decide whether it made any difference to the outcome. If we find that fault did make a difference, we then determine whether the difference caused a significant injustice to the individual complainant.
  3. In this case, while there was fault, I cannot show it made any difference to the outcome of the planning decision. This is because the Council took account of the material planning considerations, including the impact the development would have on neighbouring amenity, including Ms X’s.
  4. Ms X says her health was affected by what has happened. Only the courts can decide whether an injury to the health of a person has occurred and, if so, whether another individual should be held responsible.

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Final decision

  1. I completed my investigation because, while there was fault in the way the Council made its decision, I cannot say it caused an injustice to Ms X.

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Parts of the complaint that I did not investigate

  1. Ms X raised other matters during my conversations with her. I did not investigate these issues because:
    • Soil depth – This relates to her own land, not the planning application about her neighbouring land, which is the subject of her complaint. I also understand from my conversations with Ms X and the Council that the depth of soil on her land has been investigated and found to be consistent with planning conditions;
    • Rubble on boundary – If there is damage to Ms X’s land caused by the developer piling rubble against her fence, this is a private matter and not one we would expect a planning authority to become involved in.

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Investigator's decision on behalf of the Ombudsman

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