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North Devon District Council (19 006 450)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 24 Mar 2021

The Ombudsman's final decision:

Summary: the complainant says the Council failed to properly consider a planning application for a house built close to her home resulting in a building it would otherwise have refused. The Council says it considered the application against all relevant planning policies and says the application met the criteria for a local needs’ application. We find the Council acted without fault in deciding the application.

The complaint

  1. The complainant whom I shall refer to as Ms X complains the Council failed to properly consider a planning application for a new house near her home. Ms X says the Council did not properly consider all relevant information, including her objections and local plan policies.
  2. Ms X wants the Council to revoke the planning permission and review procedures to ensure it does not grant planning permission for similar development in a protected area. Ms X wants the Council to prevent setting a precedent and to recognise the impact on her amenity.

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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 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)
  3. If 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. In considering this complaint I have:
    • Contacted Ms X and read the information presented with her complaint;
    • Put enquiries to the Council and reviewed is response;
    • Shared my draft decision with Ms X and the Council and reflected on the comments received before reaching this final decision.

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What I found

Planning law and guidance

  1. Councils must publicise planning applications.  The publicity for an application depends on the nature of the development. However, the Council must publish all applications on its website. For the application, the subject of this complaint, the publicity required is a site notice and writing to neighbours.
  2. The Council is not under a statutory duty to publicise amendments to planning applications. However, we take the view councils should publicise amended plans in the same manner as the original application. That is, unless the amendments would not increase the impact on neighbours or others to whom the Council directed the original publicity. The Council’s practice is to publicise those amendments that show a development that is ‘materially different’ to the original. For example, increasing the size or position of the building’s proposed footprint.
  3. All decisions on planning applications should comply with the development plan unless material considerations suggest otherwise.
  4. The National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. It is a material consideration in deciding applications.
  5. Depending on the development plan policies, councils should decide planning applications using a ‘presumption in favour’ of sustainable development’. The Council should balance that against any adverse impacts that significantly outweigh the benefits of the application when assessed against the National Planning Policy Framework.
  6. Material planning considerations concern the use and development of land in the public interest. Issues such as the applicant’s personal conduct, covenants on land or reduction in the value of a property do not form material planning considerations. Material planning considerations include issues such as overlooking, traffic generation and noise.
  7. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded on valid material planning reasons.
  8. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
  9. It is for the decision maker to decide the weight to give to any material consideration in deciding a planning application.
  10. Under the Council’s local plan new homes may be subject to limiting their occupancy to people in, from or who have a connection with the local area. The Council refers to such applications as ‘local needs’ applications. To qualify a proposed occupant needs to ‘live’ in the area and meet other eligibility criteria. A proposed occupant does not have to show they own a property in the area to prove residence or a connection.

What happened

  1. In 2017 the Council received a planning application for approval to build a new house near Ms X’s home. The area has special protection under the local plan. The applicant claimed the application met a local need for housing. Therefore, the applicant believed the Council should grant permission as an exception to the policy against allowing new homes in the area.
  2. The Council publicised the application. First, by erecting a site notice which Ms X says did not remain in place long. Second, by writing to neighbours, including Mrs X, to say it had received an application.
  3. In response to the publicity Ms X, and two other residents objected to the proposal. The objections included challenging the applicant’s claim this met a need for further housing and whether the application met the criteria for local needs. Objectors also said the application contained errors. Ms X reminded the Council it had rejected a similar application on a nearby site and when appealed the Planning Inspector confirmed the Council’s decision. That Ms X believes shows the application did not comply with the planning policies for the area.
  4. The Council’s officer wrote a report setting out the proposal and referred to the relevant planning policies including the National Planning Policy Framework. The report summarised the objections received. The Council’s officer gave her professional view on the application and recommended granting planning permission. The report set out the Council officer’s professional views on the design, setting, landscape setting, impact on neighbouring property, and the likely impact on the public highway.
  5. In her report the Council’s officer explained why the Council had refused a similar application in the area. That application had not included a planning agreement under Section 106 of the Town and Country Planning Act 1990 to secure the property as a ‘local needs’ home. The previous application did not name a proposed occupier who could claim a local connection. The Council’s officer distinguished the application before the Council from that previous application by showing this applicant had entered a Section 106 Agreement and named a proposed occupier.
  6. In the Council’s officer’s professional view, the application showed a local need for housing. In her view the local need outweighed the impact on the site’s location. This meant in the Council’s view it outweighed the loss of agricultural land or the impact on an area protected under the Council’s local plan. The Council says it took a similar view on the previous rejected application but did not grant permission in that case because of the lack of a named occupier and Section 106 agreement. In its view therefore, the Council says it acted consistently.
  7. The report recommended attaching conditions to the planning permission to protect the visual amenity of the area and public safety. This included a condition that forbids enlargement without express planning permission to ensure the property continues to meet local housing needs. The Council also entered a planning agreement under Section 106 of the Town and Country Planning Act 1990 to secure benefits to the local community and prevent further expansion.
  8. The applicant presented an amended application. The Council’s planning officers judged the amendments as minor and therefore would not result in a materially different proposal. For example, replacing a door with a window. Therefore, they decided they did not need to publicise the amendments or tell neighbours.
  9. The Council granted approval in June 2018 under authority delegated to officers by the Council. The applicant then built the house. The Council says this means it cannot now revoke the planning permission.
  10. Ms X says the Council failed to challenge information presented with the application suggesting the local need information may be untrue. Ms X says the Council failed to note amended plans proposed moving the proposed house further up the hill and materially changing its impact.
  11. In its response to Ms X’s complaint the Council recognised some information presented by the applicant was not accurate, but it had exercised its judgement based on the information presented. The Council says applicants are under a duty to present accurate information.

Analysis – was there fault leading to injustice?

  1. My role is to consider whether the Council considered the planning application without fault, not to judge the merits of the planning application. If I find fault, I must consider what the Council should do to put right any injustice caused.
  2. The Council gave publicity to the application giving Ms X and others an opportunity to put their objections to the Council. The Council must consider the material planning considerations on which the objectors based their objections.
  3. The amended plans did not in the Council’s view represent a materially different application. Officers decided, therefore, not to share the amendments with neighbours. That is in line with both Council policy and our expectations. I find the Council acted without fault in deciding not to publicise the amendments.
  4. The Council explained the differences between this application and one it refused previously (which the Planning Inspectorate also rejected on appeal). The Council sets out in its officer’s report why in its view the application met local needs the benefits of which outweighed any adverse impact on the area.
  5. Ms X says the Council failed to act on her rebuttal of the applicant’s evidence for having a local need to build a house. The Council says the applicant passed the test in its policy by laying out the reasons they needed to build the house. The Council sought and received further assurances having received the objections to the proposal. It is for officers to decide if the Council may rely on the information or if they should make further enquiries. That is a judgement call which officers made. Here they decided the agent’s response addressed their concerns.
  6. It is for the decision maker to decide what weight to give to the individual material planning considerations. I cannot impose my judgement over that of professional officers and it is clear they have considered the application against the relevant planning policies.
  7. When deciding the planning application, the Council had before it the application, its planning policies, its officer’s report, parish council comments, objections and the agent’s response to those objections. I find the Council decided the application having followed the correct procedure and having before it all relevant information and therefore without fault. Without a finding of fault, I cannot challenge the merits of its decision.

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Final decision

In completing my investigation, I find the Council acted without fault in its consideration of the planning application.

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Investigator's decision on behalf of the Ombudsman

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