Northumberland County Council (19 009 313)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 31 Mar 2020

The Ombudsman's final decision:

Summary: There was no fault in how the Council reached its decision to grant planning permission for development near Mr X’s home.

The complaint

  1. Mr X says that, in dealing with a planning application for development near his home, the Council:
  • failed to protect the protect public interest;
  • did not take full account of the Parish Council’s objection;
  • did not address all his objections; and
  • did not reply to his correspondence about the development.
  1. Mr X says the development restricts access to his home and dealing with the Council has taken up his time, been costly and caused stress. Mr X wants the Council to explain why he was excluded from a site meeting and why it considers it is necessary to approve the development, which removes a public right of way.

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What I have investigated

  1. I have investigated how the Council reached its decision to grant the development planning permission. I have not investigated Mr X’s concerns about the stopping up of the public road after the grant of planning permission for the reasons given at paragraphs 38 and 39 of this statement.

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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 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)
  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 have:
  • considered Mr X’s written complaint and supporting papers;
  • talked to Mr X about the complaint;
  • considered relevant planning information available on the Council’s website;
  • asked for and considered the Council’s comments on the complaint;
  • shared Council comments with Mr X; and
  • shared a draft of this statement with Mr X and the Council and considered their responses.

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What I found

Background

  1. Most development, which includes a material change in the use of land, needs planning permission from the local council. However, Parliament has given a blanket permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, council have no control over permitted development.
  2. Planning applicants decide what development they want to carry out and where. Planning applicants do not need to own land to apply for permission for its development. However, planning applications must include a declaration about land ownership.
  3. Councils usually have eight weeks to decide a planning application, although the applicant may agree to extend the time. Within the eight weeks, councils must publicise the application so people may comment on development proposals.
  4. Councils must consider applications on their planning merits and make decisions in line with relevant policies in their development plans, unless material planning considerations suggest otherwise. Material considerations concern the use and development of land in the public interest, and not private matters such as the applicant’s behaviour, house prices or boundary disputes. Material considerations include issues such as overlooking and traffic generation.
  5. Peoples’ comments on relevant planning and land use issues will be material planning considerations. Councils must take such comments into account in deciding applications, but they do not have to agree with those comments. Councils do not usually visit or correspond with people that comment on applications and many make this clear when publicising applications.
  6. Planning policies and material planning considerations may pull in different directions, for example, supporting development and protecting existing residential amenities. While councils must take account of relevant policies and material planning issues, they may give competing considerations different weight. In practice, this means councils can grant planning permission for development that does not comply with all relevant planning policies.
  7. Normally, a planning officer will visit the application site and then write a report assessing the development proposals. The report will summarise peoples’ land use and planning comments about the development and address any competing or conflicting policies and material considerations. Having weighed and balanced the key planning issues, the officer usually ends the report recommending either the grant or refusal of planning permission.
  8. A senior council officer will consider most reports and decide whether to grant planning permission. The senior officer may give different weight to relevant policies and other material planning considerations and so accept or reject the case officer’s recommendation.
  9. Normally, councils grant planning permission if they consider the development is in line with planning policy and they find no planning reason(s) of sufficient weight to justify a refusal.
  10. Planning applicants may need other consents and approvals before they may start a development on site. For example, if development affects a public highway, an applicant may need to apply to the Secretary of State for Transport for a legal order to close or reroute that highway. The legal procedure for securing such an order is separate from the procedure for getting planning permission.

What happened

  1. The Council received a planning application to develop land near Mr X’s home. The application site included land that was a public highway. The Council publicised the application and Mr X objected, giving information about the public highway and public need for its continuing use. Mr X also pointed to errors (boundary lines and location of existing buildings) in the application plans; raised parking concerns; and questioned future permitted development on the site. Mr X also referred to the Council agreeing, in principle, to the development before seeking peoples’ views.
  2. The local Parish Council objected to the development on access and parking grounds.
  3. The Council, as local planning authority, asked its highway officers to comment on the application. The highway officers wanted more information about the development. The highway officers offered to meet the planning officer and applicant on site “plus any other interested parties”.
  4. Meanwhile Mr X contacted his local councillor and they asked to meet with the planning officer about the development. The planning officer referred to the proposed visit with highway officers and offered to meet Mr X and his councillor after the site visit. Mr X replied that he “would greatly appreciate the opportunity to attend the proposed site visit”. Mr X’s councillor also said he would like to attend and later asked to be ‘kept in the loop’ so they could “come together once that has taken place.” (I have seen no evidence the Council agreed that Mr X and his councillor should attend the site visit and or invited them to do so.)
  5. About two weeks later, the planning officer met with highway officers and the applicant on site. The Council says it also went to Mr X’s home, but he was not in. Soon afterwards, Mr X asked the Council for an update as more than eight weeks had passed since the Council received the properly completed application form. The Council told Mr X about the site meeting and that highway officers were considering the impact of the development on the public highway. Mr X replied saying he was “disappointed” the site visit took place without him and again contacted his councillor. Mr X’s councillor said Council officers considered the meeting was about ‘technical’ highway issues and so not appropriate for Mr X to attend.
  6. About three weeks later, highway officers said they did not object to the development. Highway officers also raised matters to deal with, if the necessary legal procedure to close the public highway took place. The Council’s planning officer told Mr X and his councillor about the highway officers’ comments. The Council also told Mr X it was not common practice for highway officers to discuss planning applications with objectors.
  7. The planning officer prepared a report assessing the application. The report identified relevant national local planning policies and summarised representations from local people, highway officers and the Parish Council. The summary included Mr X’s concerns about need for the public highway and parking. The report also set out the main planning issues for assessing the development. These included the impact on existing homes and highway issues. The report said the development would not be overbearing or reduce privacy or light and so was not be harmful to neighbouring homes.
  8. In assessing highway issues, the report referred to highway officers, who had not objected to the development. The report also said car parking did not cause highway safety concerns. And, overall, the development would not have a harmful impact on highway safety or the local highway network. The report found the development acceptable, in line with planning policies, and that technical matters about highway safety had been addressed. The planning officer recommended the grant of planning permission. A senior officer considered the report and granted the development planning permission.
  9. Mr X complained to the Council. The Council said it had taken account of planning policies and other material considerations, including Mr X’s and the Parish Council’s objections. It had acted fairly in considering and balancing the views of all interested parties. It had also sought the views of highway officers, who found no justifiable reason to object to the development. The Council said the impact of the development on neighbours was not significant enough to justify refusing planning permission. The Council said its decision was properly taken, which was evidenced by its officer’s report on the application.

Consideration

Introduction

  1. I recognise Mr X strongly opposes the Council’s decision to grant the development planning permission. I hold no view on whether the development is ‘good’ or ‘bad’. My role is to consider if there is evidence of fault in how the Council reached its decision to grant the development planning permission. Without evidence of fault, I cannot question the Council’s resulting planning decision. I have therefore considered how the Council dealt with the four issues in Mr X’s complainant to the Ombudsman (see paragraph 1 bullet points).

The public interest

  1. Mr X says the Council failed to protect the public interest in handling the application. The evidence shows the Council publicised the application and so people could comment on the development. The officer report also shows the Council took account of representations it received from people. The Council, as local planning authority, also sought the views of highway officers as the development affected an existing public highway. And, the evidence suggests deciding the application took significantly longer than eight weeks to address, and resolve, matters raised by highway officers. Overall, the evidence shows the Council did properly consider and take account of the public interest. I therefore do not find fault here.

The Parish Council’s objection

  1. Mr X says the Council did not take full account the Parish Council’s objection. The planning officer’s report on the application refers to the Parish Council’s objection, which concerned highway matters. The officer report also identified highway matters as a main issue in deciding the application. In assessing the impact of the development on the public highway, the report reads as placing weight on the views of the Council’s highway officers. And, the Council’s highway officers had been satisfied the development would not harm road safety or the local highway network. Having taken account of highway related objections (including from Mr X), the Council was entitled to give most weight to their highway officers’ view on the issue. I therefore do not find fault here.

Mr X’s objections

  1. Mr X says the Council did not deal with all his objections to the development. Mr X’s objections covered highway matters, including car parking issues. I have addressed highway matters at paragraph 29. The planning officer’s report on the application refers to parking concerns in summarising peoples’ representations. The report also expressly addresses car parking issues, finding these did not cause highway safety concerns. The evidence therefore shows the Council took account of car parking issues, I cannot, therefore, find fault here.
  2. The other key points raised in Mr X’s representation concerned errors in the application plans, predetermination of the application, and possible future permitted development. The officer report on the development does not refer to Mr X’s comments about plan errors. And yet, I do not find the errors Mr X raised affected the Council’s planning decision. The planning officer visited the site and was therefore able to see existing buildings on and near the planning application site, and where the development was to take place. The report also makes no reference to Mr X’s comments about predetermination of the application. However, I have seen no evidence the Council had reached a view on the planning merits of the development before either receiving the application or considering peoples’ representations on the proposal. So, I do not find fault here.
  3. The Council also recognises it did not deal with possible future permitted development on the application site. The Council says it considered Mr X’s views about permitted development but took them as “commentary” and not a point it needed to address in its officer’s report. The Council also says it did not need to control permitted development rights as the location of the application site means planning permission is needed for any future development. The Council has provided a satisfactory explanation for not addressing permitted development rights in the officer report. And, I do not find omitting the issue from the report is likely to have affected the Council’s planning decision.

Unanswered emails

  1. Mr X says the Council did not reply to two emails. The first email says Mr X attaches a letter, and copies of earlier emails, about his objections to the development. Mr X sent the letter to a senior planning officer seeking a “fresh pair of eyes” to consider his representations. The senior officer acknowledged Mr X’s first email saying the Council would “look into this matter”. The evidence shows the senior officer quickly sought information about the development. And, the Council points to an email about the development sent the same day by the planning case officer to Mr X.
  2. Mr X was repeating his earlier objections to make sure senior Council officers were aware of them in deciding the application. And, it is not normal practice for councils to write to objectors when deciding planning applications (see paragraph 12). What the Council needed to do was take account of Mr X’s planning and land use representations in reaching its decision on the application (see paragraphs 11 and 30 to 32). I am satisfied the Council’s handling of the first email did not fall below acceptable administrative standards.
  3. Turning to Mr X’s second unanswered email, the planning case officer found no record of receiving an email with the date given by Mr X. However, Mr X has now provided a copy of the email, which shows a different date. The ‘date’ may have affected the case officer’s search for the email. The information provided by Mr X also shows the email as sent to several Council officers. On balance, I consider the Council probably received the email. It is, generally, poor administrative practice not to reply to peoples’ correspondence. However, when Mr X sent this email, the Council had decided the planning application. And, each recipient may have believed another officer would reply. Here, the Council did correspond with Mr X while it was considering the application. And, on balance, I do not find its seeming failure to respond to this email was fault in these circumstances.

Summary

  1. I do not find evidence the Council acted with fault in reaching its planning decision to grant the development planning permission. Without evidence of fault, while recognising Mr X’s strongly held objections to the development, I cannot question the Council’s differing view (see paragraph 4).

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Final decision

  1. I completed my investigation finding no fault in the Council’s decision making but, possibly, fault in its communication with Mr X.

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Parts of the complaint that I did not investigate

  1. Separate procedures exist for deciding planning applications and changing the status of public highways. The Council’s grant of planning permission approved, on planning and land use grounds, a change of use for the application site. The Council needed to consider the impact of the change of use on local public highways. However, the planning permission did not affect the legal status of the public highway.
  2. The Secretary of State (Department for Transport) had to, and did, make a legal order to change the status of the public highway. The law provides a legal right to challenge the Secretary of State’s orders. And, the Parliamentary and Health Services Ombudsman has powers to consider complaints about Government departments. However, the Local Government and Social Care Ombudsman has no jurisdiction to investigate a decision taken by the Secretary of State. I have not therefore investigated Mr X’s concerns about the closure of the public highway.

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Investigator's decision on behalf of the Ombudsman

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