Summary: There is no fault in the way the Council considered the impact of a development on local people, wildlife or local highways. I intend to stop my investigation into development outside the settlement boundary and the impact of development on a local footpath as any potential fault has not caused Mr X an injustice.

The complaint

1. Mr X complains the Council has granted outline planning permission for a new development opposite his home. Mr X says the Council failed to consider:
• The fact the proposed development was outside the “settlement boundary”.
• The impact of the development on the local conservation area.
• The impact of the development on local ecology and wildlife.
• The impact of the development on views from a nearby footpath.
• The impact of the development on highway safety.
• The impact of the development on adjacent properties.
2. Mr X says local people were only able to see the Council’s officer report shortly before the planning committee meeting so were not able to properly respond to issues raised. Mr X says local people were only given three minutes to speak at the committee.

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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 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)
4. 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)
5. 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’. 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:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

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

6. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. 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

8. I have spoken to Mr X about his complaint and considered the information he provided to the Ombudsman.
9. I have also considered information about the planning application available on the Council’s website. This includes:
• The Council’s case officer report.
• Comments on the application from the Council’s ecologist.
• A report on the planning application produced by local people including Mr X.
10. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

Planning law

11. All decisions on planning applications must be made in accordance with a council’s development plan, unless material considerations indicate otherwise.
12. Statutory guidance issued by the government (National Planning Policy Framework) says that where the development plan is silent or the relevant policies are out of date, planning applications must be determined in accordance with a ‘presumption in favour of sustainable development’. This means planning permission should be given unless any adverse impacts would outweigh the benefits when assessed against the National Planning Policy Framework, or the Framework indicates development should be restricted.
13. When considering planning applications councils can only take account of material considerations. These relate to the use and development of land in the public interest. Material considerations include issues such as overlooking, traffic generation and noise. Councils cannot take account of private considerations such as the applicant’s personal conduct, land rights or reduction in the value of a property.
14. Councils will notify local people when a planning application is received and give them an opportunity to comment. The volume or strength of local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission. However, councils must consider any material planning considerations raised in comments from local people.

The Council’s procedures relating to conduct of its planning committee

15. The Council’s procedures say documents relating to the planning committee will be published 5 days before the meeting takes place.
16. Anyone wishing to speak at a planning committee meeting should apply to the Council for permission to speak 2 days before the date of the meeting.
17. The Council gives people a maximum of 3 minutes to speak. The Chair of the planning committee has final say in who may speak and for how long.

My findings

Development outside the “settlement boundary”

18. The Council’s officer report put to the planning committee in October 2018 acknowledges the site being developed is “within designated countryside but the [settlement boundary] is to the south and west of the site, which also forms the boundary of the [local conservation area]”.
19. The report goes on to say that the proposed development is “in conflict” with its planning policies restricting development outside settlement boundaries. However the report says these policies pre-date the National Planning Policy Framework and the Council has failed to “demonstrate a policy compliant five year land supply of residential sites”.
20. The report said it could not give significant weight to the existing policies and instead “must undertake a site specific appraisal of the merits of the scheme against the presumption in favour of sustainable development enshrined within the Framework, and must only refuse consent if the adverse impacts of the development ‘significantly and demonstrably’ outweigh the benefits”.
21. The report says “[the town] is allocated within the [existing development plan] as a local centre, and a sustainable location for further growth. This status is repeated within the emerging Joint Local Plan.”
22. The Council’s planning committee considered the planning application towards the end of October 2018. At this point the Council had not adopted its local plan. The planning committee decided to “delegate to [officers], in conjunction with Chairman, to conditionally grant planning permission, subject to a Section 106 legal obligation”. Six members of the committee voted in favour of the application and four voted against.
23. The records of the planning committee meeting show two members of the committee discussed the impact of the Council’s failure to demonstrate a five year land supply for housing on the ability to refuse to refuse planning permission.
24. The Council reached an agreement with the developer and planning permission was granted in August 2019.
25. However, between the committee meeting in October 2018 and the Council’s decision to grant planning permission being finalised in August 2019, the Council adopted a new local plan. The local plan was adopted in March 2019.
26. The Council’s officer report was reproduced to accompany the decision notice in August 2019. It included an addendum which gave consideration to the newly adopted local plan. The report said:

“Following the Committee resolution on 16 October 2018 to approve this application the Joint Local Plan was adopted in March 2019 has been adopted and this is a material planning consideration. The development proposed has not changed since it was considered by the Committee in October 2018. The policies of the [Joint Local Plan] relevant to the determination of the application have not significantly changed since the committee resolution”.

27. The Council had the option of passing the planning application back to the planning committee for reconsideration in light of the adoption of the Local Plan. However, the Council chose not to do so. The Council says:

“There is no formal requirement for the matter to be referred back to committee but it is essential that the Council has considered  all material planning considerations prior to issuing the decision and the Council follows the principles set down in the case of R (on the application of Kides) v South Cambridgeshire DC 2002. Whilst the Council accepts that there will be occasions when it is prudent to refer an application back to Members it was not considered necessary to do so on this occasion. The addendum that was prepared by the planning officer at the end of the officer report demonstrates that the officer took into account the adoption of the JLP/changes to the NPPF since the resolution/delegation of authority. It also shows that there was no material change in policies affecting the proposal”.

28. I have considered the Council’s comments as well as the case law it seeks to rely on (R (on the application of Kides) v South Cambridgeshire District Council [2002], EWCA Civ 1370). I am not certain the case supports the Council’s view that it was not required to pass the matter back to the planning committee. However, I cannot see that any potential fault has caused Mr X an injustice. This is because, regardless of whether the matter should have been reconsidered by the planning committee it is likely the Council would still have granted planning permission.
29. The Council’s Joint Local Plan does not prohibit new development in the countryside. The plan contains a number of policies which set out matters the Council must consider when granting planning permission for development in the countryside.
30. The plan focusses on the need for sustainable development within rural communities and acknowledges that “even in small rural settlements some limited organic growth may be appropriate and may assist in providing homes and facilities meeting local needs”. The plan also considers the needs of the town next to which the development will take place. The plan acknowledges that further development of new homes within the town is necessary to “support the future sustainability of the settlement”.
31. Taking this into account it seems likely that, even if the committee had reconsidered the application, it would not have had grounds to refuse planning permission on the basis that the development was taking place outside the settlement boundary in designated countryside. Therefore, Mr X and the other residents have not been caused an injustice.
32. I will therefore stop my investigation into this part of the complaint as I cannot justify further investigation into this matter.

Impact of the development on the conservation area

33. The Council’s officer report from August 2019 acknowledges that the conservation area ends “adjacent to the application site”. However the Council also notes that the architecture of other properties on the road “becomes increasingly modern” heading away from the town. The report concludes that “modern properties within the application site will read as a continuation of the historic growth and progression of the settlement eastwards along [the road]. For this reason, officers consider that the scheme will preserve the setting, character and appearance of the [conservation area].”
34. There is no fault with the way the Council considered the impact of the development on the conservation area. The Council has considered the setting of the development and design of surrounding properties in relation to the conservation area.

Impact of the development on local ecology and wildlife

35. Mr X and other residents say:
• The development will require the removal of ancient hedgerow and even if this is replaced elsewhere on site there will be a negative impact on local wildlife.
• The Council failed to consider its Bio-diversity Action Plan (BAP) when considering the loss of hedgerow. The Council’s panning committee seemed unsure what a BAP habitat was.
• Replacement hedgerow would take time to establish and would not provide the same diversity.
• Bats use the hedgerow for roosting navigation and feeding and would be affected by the loss of and can be affected by light.
• There are badger sets on the development site, and this was not identified in the report provided by the developer’s ecologist.
36. The Council’s officer report contains extracts of advice from its own ecologist which considers the residents’ concerns and the developer’s report. The officer report does not specifically address the issue of badgers on the site, however this was addressed in the Council’s ecologist’s comments which are available on the Council’s website as part of the planning file.
37. The ecologist also acknowledged the hedgerow was “species-rich and qualifies as BAP habitat”.
38. The Council’s ecologist considered a “technical note” issued by the Department for Environment, Food and Rural Affairs which had been included in its own biodiversity guidance issued in 2014. The ecologist said the proposed replacement hedgerow within the site would result in a “significant net gain” in terms of biodiversity although there may be some “short term loss of habitat for the likes of nesting birds”.
39. The ecologist said the proposed boundary hedgerow would make a “significant contribution to connectivity of features used by bats for foraging and commuting”. The ecologist also noted that the “vast majority of bat species recorded are not adversely affected by light and are infact [sic] drawn to light for foraging”.
40. The ecologist acknowledged the developer’s ecology report restricted investigations into presence of badgers on the site to one specific boundary hedgerow. However, the Council’s ecologist spoke to developer’s ecologist and confirmed that he had “undertaken a walkover the entire field and had found no evidence of [badger] use of the wider field”. The ecologist said the proposed development “would not pose a significant loss of any foraging habitat or pose a barrier to badger passage or habitat connectivity. Residential gardens can of course form part of a badgers foraging territory”.
41. The Council has properly consider the impact of the development on local ecology and wildlife. Mr X and the other residents may disagree with the conclusions reached by the Council but I cannot criticise the Council’s decision unless there was fault in the way the decision was reached.
42. I have considered the minutes of the planning committee meeting and although members asked for clarification on what a BAP habitat was this does not mean they did not understand the issues being considered.
43. The Council has imposed conditions on the planning permission which require the developer to provide further information about boundary treatments and landscaping before any development can start.
44. Badgers are a protected species and if there are badgers present on the site the developer may need to apply to Natural England for permission to carry out any building work and landscaping which may affect their sets. This is a matter for Natural England and not the Council.
45. Mr X is concerned that there will need to be retaining structures put in place when the properties are built. He says the retaining structures pose a risk to badgers crossing the site as they are likely to fall. The Council has only granted outline planning permission for residential development on the land. The Council will have to consider the impact of any new structures on wildlife when it considers any application to approve reserved matters for the design, layout and landscaping of any properties.

Impact of the development on a local footpath

46. The Council’s officer report accepts the “existing site, when viewed from the [footpath] provides a positive contribution to the area as an undeveloped space”. However, the report goes on to say that the development “constitutes a minor environmental harm which is limited by the retention of [the northern section of the site]”.
47. The Council’s officer report concludes that the “limited adverse impacts of the development do not significantly or demonstrably outweigh its benefits”.
48. As with the Council’s consideration of development in the countryside it may be that the Council should have asked it’s planning committee to reconsider the planning application in light of the fact it had since adopted its local plan. However, even if this were the case I cannot justify investigation this matter further as Mr X has not been caused an injustice.
49. The Council’s Joint Local Plan says development in the countryside should “protect and improve public rights of way and bridleways”.
50. However, the plan also focusses on the need for sustainable development within rural communities and acknowledges that “even in small rural settlements some limited organic growth may be appropriate and may assist in providing homes and facilities meeting local needs”. The plan also considers the needs of the town next to which the development will take place. The plan acknowledges that further development of new homes within the town are necessary to “support the future sustainability of the settlement”.
51. Therefore, it seems likely that the Council would not have had grounds to refuse planning permission for the development due to the impact on views from a local footpath even if the planning committee had reconsidered the matter.

Impact of the development on highway safety

52. The Council has considered the comments of its highways officer and concluded that safe access to and from the development is possible following the removal of a section of hedgerow.
53. The Council is entitled to rely on advice from the highways officer and I can see no reason to criticise the way the Council reached its decision. The Council has reached a legal agreement with the applicant to fund moving the 30 mile per hour speed limit further from the village to slow traffic approaching the entrance to the proposed development.
54. Mr X and local residents have expressed concerns about road users exceeding the speed limit on the road passing the development. However, the Council can only consider the use of the road as it is intended. The Council cannot consider risk of unlawful behaviour when deciding whether to grant planning permission.

Impact of the development on neighbouring properties

55. The Council’s officer report produced in August 2019 acknowledges that the outlook from properties facing the site will change. The properties currently look over an open field but will now look towards two residential properties.
56. In the report the Council considered the separation distance between the properties and the orientation and decided there would be no unacceptable overlooking or overshadowing caused. Therefore, there is no fault in the way the Council reached its decision to grant planning permission.
57. The application only sought outline planning permission for residential properties on the site and so the developer will have to submit further details showing the exact position and design of the properties before building can commence. The Council will have to give further consideration to the impact on neighbouring properties when it receives those details.

Conduct of the planning committee

58. Local people are able to submit comments on a planning application. They have been able to do so in this case. The Council is not required to give local people an opportunity to comment on its own views on the application therefore there is no fault in the Council only making its officer report available shortly before the date of the planning committee.
59. The Council’s procedures only allow 3 minutes for people to speak at the committee meeting. Local people were given appropriate time to speak and their comments were summarised in the officer report and available for members of the committee to consider as part of the planning file. Therefore I can see no fault in the way the planning committee was conducted.

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Final decision

60. I have completed my investigation. This is because I have found no fault in the way the planning committee was managed or the way the Council considered the impact of the development on local residents, wildlife and highways.
61. I have stopped my investigation into Mr X’s complaints about development outside the settlement boundary and the impact on a local footpath as any potential fault has not caused Mr X an injustice that justifies further investigation.

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Investigator's decision on behalf of the Ombudsman